81 FR 21775 - Rules of Practice for Adjudicative Proceedings
CONSUMER PRODUCT SAFETY COMMISSION Federal Register Volume 81, Issue 71 (April 13, 2016)
Federal Register Volume 81, Issue 71 (April 13, 2016)
| Page Range | 21775-21795 | |
| FR Document | 2016-08125 |
[Federal Register Volume 81, Number 71 (Wednesday, April 13, 2016)] [Proposed Rules] [Pages 21775-21795] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-08125] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 Finally, we propose to remove outdated references to the Equal Access to Justice Act.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 [[Page 21777]] 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). [[Page 21778]] 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: [[Page 21779]] ``[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. * * * * * 0 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 0 49. The authority citation for part 1025, subpart H, is revised to read as follows: Authority: 5 U.S.C. 504, 551 et seq. 0 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. 0 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] 0 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
![Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules 21775
Slidell Airport, Slidell, LA, with Aviation Administration proposes to CONSUMER PRODUCT SAFETY
segments extending from the 6.5-mile amend 14 CFR part 71 as follows: COMMISSION
radius to 9.2 miles north, and 9 miles
south of the airport. Airspace PART 71—DESIGNATION OF CLASS A, 16 CFR Part 1025
reconfiguration is necessary due to the B, C, D, AND E AIRSPACE AREAS; AIR [CPSC Docket No. 2016–0006]
decommissioning of NDBs, cancellation TRAFFIC SERVICE ROUTES; AND
of NDB approaches, and REPORTING POINTS Rules of Practice for Adjudicative
implementation of RNAV procedures at Proceedings
the above airports. The Class E airspace ■ 1. The authority citation for 14 CFR
area extending upward from 700 feet AGENCY: Consumer Product Safety
part 71 continues to read as follows:
above the surface within a 6.8-mile Commission.
Authority: 49 U.S.C. 106(f), 106(g); 40103, ACTION: Notice of proposed rulemaking.
radius of Homer Municipal Airport,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
Homer, LA, would be removed as
1959–1963 Comp., p. 389. SUMMARY: The United States Consumer
controlled airspace is no longer needed.
Controlled airspace is necessary for the Product Safety Commission
§ 71.1 [Amended]
safety and management of the standard (‘‘Commission,’’ ‘‘CPSC,’’ or ‘‘we’’) is
instrument approach procedures for IFR ■ 2. The incorporation by reference in issuing this notice of proposed
operations at the airports. 14 CFR 71.1 of FAA Order 7400.9Z, rulemaking (‘‘NPR’’) to update the
Airspace Designations and Reporting Commission’s Rules of Practice for
Class E airspace designations are
Points, dated August 6, 2015, and Adjudicative Proceedings, (‘‘Rules of
published in paragraph 6005 of FAA
effective September 15, 2015, is Practice’’ or ‘‘Rules’’). We are proposing
Order 7400.9Z, dated August 6, 2015,
amended as follows: to modernize the Rules of Practice to
and effective September 15, 2015, which
reflect changes in civil and
is incorporated by reference in 14 CFR Paragraph 6005 Class E Airspace Areas administrative litigation since adoption
71.1. The Class E airspace designations Extending Upward From 700 Feet or More of the Rules in 1980. Specifically, we
listed in this document will be Above the Surface of the Earth. propose changes to the Rules pertaining
published subsequently in the Order.
* * * * * to discovery, electronic filing, the use of
Regulatory Notices and Analyses ASW LA E5 De Quincy, LA [Amended]
electronically stored information
(‘‘ESI’’), and updates to the Federal
The FAA has determined that this De Quincy Industrial Airpark, LA Rules of Civil Procedure (‘‘Federal
regulation only involves an established (Lat. 30°26′28″ N., long. 93°28′25″ W.) Rules’’), upon which our Rules are
body of technical regulations for which That airspace extending upward from 700 based. We also propose to update
frequent and routine amendments are feet above the surface within a 7.5-mile requirements for pleadings, motions,
necessary to keep them operationally radius of De Quincy Industrial Airpark. and motions for summary decisions,
current, is non-controversial and
* * * * * clarifications on the computation of
unlikely to result in adverse or negative
time, and clarification on when
comments. It, therefore: (1) Is not a ASW LA E5 Homer, LA [Removed]
amendments or supplemental pleadings
‘‘significant regulatory action’’ under * * * * * require Commission approval.
Executive Order 12866; (2) is not a
ASW LA E5 Minden, LA [Amended] Additionally, we propose allowing a
‘‘significant rule’’ under DOT
Presiding Officer to exercise discretion
Regulatory Policies and Procedures (44 Minden-Webster Airport, LA to avoid unnecessary delay or wasteful
FR 11034; February 26, 1979); and (3) (Lat. 32°38′46″ N., long. 93°17′53″ W.) discovery and to consolidate cases in
does not warrant preparation of a That airspace extending upward from 700 their entirety, or partially, for any
regulatory evaluation as the anticipated feet above the surface within a 6.5-mile purpose that serves the ends of justice.
impact is so minimal. Since this is a radius of Minden-Webster Airport. We also propose to set deadlines for the
routine matter that will only affect air
* * * * * issuance of an Initial or Recommended
traffic procedures and air navigation, it
Decision. Finally, we propose to remove
is certified that this rule, when ASW LA E5 Slidell, LA [Amended]
outdated references to the Equal Access
promulgated, would not have a Slidell Airport, LA to Justice Act. We believe the proposed
significant economic impact on a (Lat. 30°20′47″ N., long. 89°49′15″ W.) Rules will increase the efficiency of
substantial number of small entities That airspace extending upward from 700 discovery, minimize the potential for
under the criteria of the Regulatory feet above the surface within a 6.5-mile delay in adjudicative proceedings, and
Flexibility Act. radius of Slidell Airport, and within 4.0 ensure that, to the extent possible,
Environmental Review miles each side of the 360° bearing from the Commission adjudicative proceedings
airport extending from the 6.5-mile radius to address and resolve crucial issues of
This proposal will be subject to an 9.2 miles north of the airport, and within 4.0 consumer product safety in a fair and
environmental analysis in accordance miles each side of the 180° bearing from the impartial manner. This NPR seeks
with FAA Order 1050.1F, airport extending from the 6.5-mile radius to comments on the proposed changes to
‘‘Environmental Impacts: Policies and 9.0 miles south of the airport. the Rules.
Procedures’’ prior to any FAA final
regulatory action. Issued in Fort Worth, Texas, on April 4, DATES: Submit comments by June 13,
jstallworth on DSK7TPTVN1PROD with PROPOSALS
2016. 2016.
List of Subjects in 14 CFR Part 71 Robert W. Beck, ADDRESSES: You may submit comments,
Airspace, Incorporation by reference, Manager, Operations Support Group, Central identified by Docket No. CPSC 2016–
Navigation (air). Service Center. 0006, electronically or in writing, by
[FR Doc. 2016–08393 Filed 4–12–16; 8:45 am] any of the following methods:
The Proposed Amendment
BILLING CODE 4910–13–P Electronic Submissions: Submit
Accordingly, pursuant to the electronic comments to the Federal
authority delegated to me, the Federal eRulemaking Portal at: http://
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Subpart B—Pleadings, Form, Execution, Proposed Changes to § 1025.13 allow the Presiding Officer discretion to
Service of Documents (Amendments and Supplemental permit exceptions to the electronic
Pleadings) filing requirement so that paper
Proposed Changes to § 1025.11 documents may be filed if the Presiding
(Commencement of Proceedings) Section 1025.13, titled, Amendments
and supplemental pleadings, currently Officer so orders.
To emphasize our preference for
Section 1025.11 sets out requirements states that the Presiding Officer may
electronic filing, we propose to omit
for the filing of a complaint in an allow appropriate amendments and
existing language stating that documents
adjudicative proceeding. In § 1025.11(a), supplemental pleadings which do not
‘‘may be filed in person or by mail.’’ We
we propose revisions to reflect unduly broaden the issues in the
also propose changes, consistent with
organizational changes within the proceedings or cause undue delay.
our proposal on electronic filing,
Commission since adoption of the When this section was initially
establishing the filing date for
current Rules of Practice. Complaint proposed in 1977, commenters documents. Electronically filed
Counsel would be authorized to sign a expressed concern that granting such documents would be deemed filed on
complaint following Commission broad discretion risked ‘‘usurping the the date of the electronic filing;
approval, rather than the Assistant Commission’s function’’ to serve as the however, recognizing the broad
Executive Director for Compliance and sole source of administrative litigation discretion afforded the Presiding
Enforcement, as the current rule seeking to compel recall of consumer Officer, we propose adding language
products. 45 FR 29 206–207 (May 1, stating that the Presiding Officer may
requires.
1980). At the time, stating that the Rules allow alternative methods of filing, by
Currently, § 1025.11(b)(3) requires ‘‘provide adequate procedures for the order, and that such order shall state the
that a complaint contain ‘‘[a] list and parties to argue their respective applicable date on which such
summary of documentary evidence positions and an adequate framework pleadings or documents are deemed
supporting the charges.’’ We propose for the exercise of the broad discretion filed.
eliminating this requirement given the vested in the Presiding Officer,’’ the New language in proposed
mandatory disclosures of evidence set Commission concluded that, under § 1025.14(c) would also eliminate our
forth in Federal Rule 26(a)(1)(A), which § 1025.13, ‘‘neither the Presiding Officer current requirement that three copies of
we propose following as part of nor the Commission staff is usurping the pleadings be filed, a superfluous
§ 1025.31, General provisions governing Commission function.’’ 45 FR 29208. requirement in an era where digital
discovery, discussed below. We now believe it may be helpful to copies are created easily. Under our
provide additional clarity. proposed change, a single electronic
We propose adding a new
The Commission proposes to amend copy must be filed with the Secretariat
§ 1025.11(d) to clarify that a § 1025.13 to require that the Presiding
Commission action to obtain a and the Presiding Officer; however, we
Officer refer to the Commission any propose to add language that
preliminary injunction from a federal amendment that would (1) have the acknowledges that the Presiding Officer
district court pursuant to 15 U.S.C. effect of adding to or removing from the may order paper filings.
2064(g) shall not serve as the basis to litigation any party or count, (2) fall In § 1025.14(d), we would require that
stay proceedings under these rules. In outside the scope of an authorized the original of each document that is
light of the extensive time frame for complaint, or (3) broaden staff’s filed electronically be signed
resolving matters in adjudicative authority under a complaint. electronically.
proceedings, it is the Commission’s Section 1025.14(e) currently
strong expectation that if the respondent Proposed Changes to § 1025.14 (Form
anticipates filing of paper documents,
and Filing of Documents)
fails to agree to stop sale and and sets standards for such filings. We
distribution of a product which the As an initial matter, we are proposing propose to amend this paragraph to
Commission has reason to believe to revise the title of this section to Form establish requirements that address the
presents a substantial product hazard, and filing of pleadings and other electronic filing of pleadings and
Commission staff will, within a documents to clarify that the documents. In § 1025.14(e)(1), we would
reasonable amount of time following the requirements of this section pertain to require an electronic address in addition
commencement of proceedings under pleadings, as well as other documents. to a mailing address. Section
this part 1025, apply to a district court In § 1025.14(a), we propose that all 1025.14(e)(2) would require filing
of the United States for the issuance of pleadings and documents shall be filed electronic text documents in a format
electronically with the Secretariat and that uses 12-point font with double
a preliminary injunction (pursuant to 15
the Presiding Officer, unless the spacing and prints on standard letter-
U.S.C. 2064(g)) to restrain the
Presiding Officer orders otherwise. We sized paper with 1-inch margins. This
distribution in commerce of such
propose this change because the rule, as paragraph also would include the
product pending the completion the written, is outdated and does not reflect requirement that electronic documents
adjudicative proceedings. For this current practice for filing pleadings and and files that cannot be readily printed,
reason, and in furtherance of its mission evidence electronically, which has such as large spreadsheets, videos, or
to protect public health and safety, the become the norm in most state and photographs, be identified by technical
Commission strongly urges the federal courts. Moreover, the current format and also include information on
Presiding Officer to, whenever rule requires the Office of the Secretary the program or protocol required to
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practicable, shorten the time limitations to maintain the official file, in paper review the information. The font,
imposed by these rules and endeavor to format, access to which is limited by the spacing and margin requirements are
issue an Initial Decision as soon as operational hours of the Commission. consistent with Rule 32 of the Federal
possible. Thus, our proposed change would not Rules of Appellate Procedure and Rule
We also propose several additional only reflect current technological 102(a)(b) of the U.S. District Court for
minor and non-substantive changes in advances, but the change also would the District of Maryland.
grammar throughout this paragraph. expand public access to the official file. We also propose to update
The proposed rule would, however, § 1025.14(e)(3), which currently states:
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![Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules 21779
‘‘[d]ocuments that fail to comply with of the Presiding Officer or Commission, a typographical error in § 1025.17(c)(5).
this section may be returned by the the time limits specified in these rules We do not intend these changes to be
Secretary.’’ Under the proposed shall be automatically tolled during the substantive.
§ 1025.14(e)(3), documents that do not period while the stay is in effect.
Proposed Changes to § 1025.18 (Class
meet the filing requirements, or
Proposed Changes to § 1025.16 (Service) Actions)
electronic documents that cannot be
opened or read, may be returned to the We propose several changes to We are proposing to revise
filer by the Secretariat or the Presiding § 1025.16, titled, Service, to reflect § 1025.18(a)(1) for clarity. The general
Officer. Lastly, we propose to add current litigation practice and word ‘‘class’’ would be replaced with
language to § 1025.14(e)(3) to allow a advancements in technology. First, we the more specific phrase ‘‘class of
Presiding Officer to permit deviation propose to revise § 1025.16(a) to reflect respondents.’’
from the form prescribed in this section, proposed changes to § 1025.14 that
would require the Presiding Officer to Proposed Changes to § 1025.19 (Joinder
for good cause shown, a change that
maintain the official file for an of Proceedings)
underscores our goal of vesting broad
discretion in the Presiding Officer to adjudicative proceeding, if practicable. We propose to revise the title of
maximize efficiency and flexibility in Second, our proposed § 1025.16(b) § 1025.19, currently Joinder of
how an adjudication proceeds. would remove subpoenas from the proceedings, to Consolidation of
service requirements of this section proceedings because the rule, modeled
Proposed Changes to § 1025.15 (Time) because we address those requirements on Rule 19 of the Federal Rules, actually
In § 1025.15(a) we would make in § 1025.28(e), discussed below. We describes consolidation, rather than
several non-substantive changes, also propose a new § 1025.16(b)(1) that joinder, a different legal concept. In
including a clarification of the title to would allow service of a complaint, addition, we propose new § 1025.19(a)
make clear that the computation of time ruling, petition for interlocutory appeal, to state that the Presiding Officer or the
refers to days. We also would make order, or decision to be made by Commission may order the actions
clear that ‘‘day’’ means calendar day. electronic means if ordered by the involving a common question of law or
We further propose to clarify the Presiding Officer or by agreement of the fact be consolidated for any purpose if
existing language to state that the day on parties. We also propose renumbering the Presiding Officer finds that
which the event triggering the period the subparagraphs of § 1025.16(b) to consolidation will ‘‘avoid unnecessary
shall not be included in the calculation reflect this addition. Third, in proposed cost or delay.’’ This would change the
of time, but each calendar day thereafter § 1025.16(b)(2), we would permit current rule, which permits the
shall; and that if the last day of the time service by commercial carrier, a change Presiding Officer or the Commission to
period falls on a weekend or legal that reflects common practice today. consolidate actions only ‘‘for the
holiday, the time period shall be tolled We also propose in § 1025.16(b)(3) to purpose of hearing or Commission
until the next day that is not a weekend add ‘‘a limited liability company’’ to the review.’’ This proposed language
or a legal holiday. We also propose to list of corporate entities that may be expands the authority of the Presiding
update this section to delete references served, and would add ‘‘entity’’ in the Officer to consolidate actions or
to specified legal holidays in the title of the paragraph, for clarity. We portions of actions, as appropriate, a
existing rule and refer instead to the propose this change to capture the types change that is consistent with our goal
legal public holidays identified in 5 of legal entities that exist and may be of assigning broad discretion to the
U.S.C. 6103. This revision would the subject of an administrative Presiding Officer in the conduct of a
include Martin Luther King, Jr.’s complaint. Finally, we propose to add proceeding. In practice, the current rule
birthday as a holiday and would allow language in new § 1025.16(b)(4) that, may lead to uncertainty about whether
the Rules of Practice to reflect any recognizing the preference for electronic cases may be consolidated for limited
changes to the list of legal public service of documents, clarifies the purposes, such as discovery, where
holidays made in the future. circumstances in which delivery of a there are multiple respondents. Under
We further propose to amend document to an address is appropriate. the proposed rule, we make clear that
§ 1025.15(b) to state that whenever a In § 1025.16(c), we would establish the Presiding Officer may order partial
party is required or permitted to do an electronic service as the primary mode consolidations on issues including, but
act within a prescribed period after of service for other documents, unless not limited to, discovery, pretrial
service of a document and the Presiding otherwise ordered by the Presiding procedure, and/or hearing.
Officer permits service by mail, three (3) Officer or agreed to by the parties. We propose to add a new
days shall be added to the prescribed Proposed changes to § 1025.16(e), which § 1025.19(b), including insertion of a
period. This amendment recognizes that provides a form for certificates of title, for clarity.
while electronic service is preferred, service, and § 1025.16(f), which sets the
service by mail may be allowed by order date of service of documents, would Subpart C—Prehearing Procedures,
of the Presiding Officer; if such service provide for electronic filing. Consistent Motions, Interlocutory Appeals,
is made by mail, three additional days with the establishment of electronic Summary Judgments, Settlements
would be added to the date by which filing, we propose to delete reference in Proposed Changes to § 1025.21
the recipient must perform a subsequent § 1025.16(e) to ‘‘the original of every (Prehearing Conferences)
action. document,’’ and instead, require that
In § 1025.15(c) regarding the ‘‘every document’’ be accompanied by a We propose changes to § 1025.21,
jstallworth on DSK7TPTVN1PROD with PROPOSALS
extension of time limits, we propose to certificate of service. Prehearing conferences, to reflect
add language clarifying that initial updated procedures in the Federal
decisions are decisions issued under Proposed Changes to § 1025.17 Rules. Specifically, the proposed
§ 1025.51 of the Rules of Practice. (Intervention) changes would require a preliminary
We also propose to add a new We are proposing to revise meeting of the parties before discovery
paragraph (d), which would be titled § 1025.17(a), (b), and (c) to identify commences, followed by an initial
Stay of proceedings, to clarify that if a accurately the Secretariat of the prehearing conference with the
stay of proceedings is granted by order Commission. We also propose to correct Presiding Officer. We believe these
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![21786 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules
form for a final prehearing order, given issued under the CPSA. 15 U.S.C. 2075. rules which can accommodate both
our proposed revisions to the The proposed Rules of Practice do not simple matters and complex matters in
requirements for prehearing conferences set consumer product safety standards. adjudication. To accomplish this
and orders, discussed above. Rather, the proposed Rules of Practice is objective, broad discretion has been
an adoption of updated rules of agency vested in the Presiding Officer who will
IV. Environmental Considerations
procedure and practice. Therefore, hear a matter being adjudicated to allow
The Commission’s regulations address section 26 of the CPSA would not apply him/her to alter time limitations and
whether the Commission is required to to this rulemaking. other procedural aspects of a case, as
prepare an environmental assessment or required by the complexity of the
an environmental impact statement. 16 VIII. Effective Date particular matter involved. A major
CFR part 1021. These regulations In accordance with the APA’s general concern of the Commission is that all
provide a categorical exclusion for requirement that the effective date of a matters in adjudication move forward in
certain CPSC actions that normally have rule be at least 30 days after publication a timely manner, consistent with the
‘‘little or no potential for affecting the of the final rule, the Commission Constitutional due process rights of all
human environment.’’ 16 CFR proposes that the effective date be 30 parties. Therefore, the Presiding Officer
1021.5(c)(l). This proposed rule falls days after the date of publication of a should, whenever appropriate, expedite
within the categorical exclusion. final rule in the Federal Register. 5 the proceedings by setting shorter time
U.S.C. 553(d). limitations than those generally
V. Regulatory Flexibility Analysis
applicable under this part. For example,
Under section 603 of the Regulatory IX. Request for Comments
the time limitation for discovery, as
Flexibility Act (‘‘RFA’’), when the APA The Commission requests comments provided in § 1025.31(d), may be
requires an agency to publish a general on all aspects of the proposed rule. shortened, consistent with the extent of
notice of proposed rulemaking, the Comments should be submitted in discovery reasonably necessary to
agency must prepare an initial accordance with the instructions in the prepare for the hearing. Except where
regulatory flexibility analysis (‘‘IRFA’’), ADDRESSES section at the beginning of stated otherwise, discovery matters shall
assessing the economic impact of the this document. Written comments must be governed by the Federal Rules of
proposed rule on small entities. 5 U.S.C. be received by June 13, 2016. Civil Procedure.
603(a). As noted, the Commission is
List of Subjects in 16 CFR Part 1025 § 1025.2 [Amended]
proposing to update its Rules of Practice
for Adjudicative Proceedings. Although Administrative practice and ■ 3. Amend § 1025.2 by removing the
the Commission is choosing to issue the procedure, Consumer protection. words ‘‘these Rules’’ and adding, in
rule through notice and comment For the reasons set forth in the their place, the words ‘‘this part’’.
procedures, the APA does not require a Preamble, the Commission proposes to ■ 4. Amend § 1025.3 by:
proposed rule when an agency issues amend 16 CFR part 1025 to read as ■ a. Redesignating paragraphs (e)
rules of agency procedure and practice follows: through (l) as paragraphs (h) through (o);
■ b. Adding new paragraphs (e), (f), and
(5 U.S.C. 553(b)). Therefore, no IRFA is
required under the RFA. Moreover, the PART 1025—RULES OF PRACTICE (g); and
FOR ADJUDICATIVE PROCEEDINGS ■ c. Revising newly redesignated
proposed rule would not establish any
paragraphs (i) and (n).
mandatory requirements and would not The additions and revisions read as
■ 1. The authority citation for part 1025
impose any obligations on small entities follows:
is revised to read as follows:
(or any other entity or party).
Authority: Authority: 15 U.S.C. 45, 1192, § 1025.3 Definitions.
VI. Paperwork Reduction Act 1194, 1197(b), 1274, 1473(c), 2064, 2066(b),
2076, 8003.
* * * * *
The Paperwork Reduction Act (e) Electronically Stored Information
(‘‘PRA’’) establishes certain ■ 2. Revise § 1025.1 to read as follows: (‘‘ESI’’) shall have the same meaning
requirements when an agency conducts given to such term in the Federal Rules.
or sponsors a ‘‘collection of § 1025.1 Scope of rules.
(f) Ex parte communication shall have
information.’’ 44 U.S.C. 3501–3520. The The Rules in this part govern the meaning set forth in § 1025.68.
proposed rule would amend the procedures in adjudicative proceedings (g) Federal Rules means the Federal
Commission’s Rules of Practice to adopt relating to the provisions of sections Rules of Civil Procedure.
modern adjudicative procedures. The 15(c), (d), and (f) and 17(b) of the * * * * *
proposed rule would not impose any Consumer Product Safety Act (15 U.S.C. (i) Party means any named person or
information collection requirements. 2064(c), (d), (f); 2066(b)), section 15 of any intervenor in any proceedings
The existing Rules of Practice and the the Federal Hazardous Substances Act governed by this part.
proposed revision do not require or (15 U.S.C. 1274), sections 3 and 8(b) of
* * * * *
request information from firms, but the Flammable Fabrics Act (15 U.S.C. (n) Secretary or Secretariat means the
rather, explain procedures for 1192, 1197(b)), section 4(c) of the Poison Secretariat of the Consumer Product
adjudicatory hearings. Thus, the PRA is Prevention Packaging Act (15 U.S.C. Safety Commission.
not implicated in this proposed 1473(c)), and section 1404 of the
Virginia Graeme Baker Pool and Spa Act * * * * *
rulemaking. ■ 5. Amend § 1025.11 by:
(15 U.S.C. 8003), which are required to
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VII. Executive Order 12988 ■ a. Revising paragraphs (a) and (b)(3);
be determined on the record after
(Preemption) and
opportunity for a public hearing. This ■ b. Adding paragraph (d).
According to Executive Order 12988 part may also be applied to such other The revisions and addition read as
(February 5, 1996), agencies must state adjudicative proceedings as the follows:
in clear language the preemptive effect, Commission, by order, shall designate.
if any, of new regulations. Section 26 of A basic intent of the Commission in the § 1025.11 Commencement of proceedings.
the CPSA explains the preemptive effect development of these Rules has been to (a) Notice of institution of
of consumer product safety standards promulgate a single set of procedural enforcement proceedings. Any
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principal office or place of business of ■ a. Removing the words ‘‘these rules’’ intervenors, and participants with an
the person, partnership, corporation, in paragraph (a) introductory text and identity of interests.
unincorporated association, or adding, in their place, the words ‘‘this ■ 13. Revise § 1025.21 to read as
authorized agent with an officer or a part’’; follows:
managing or general agent; or it may be ■ b. Removing the word ‘‘Secretary’’ in
§ 1025.21 Prehearing conferences.
left with a person of suitable age and paragraphs (a) introductory text, (b)
discretion residing therein, at the introductory text, and (c) and adding, in (a) Preliminary meeting of the parties.
residence of the person or of a member its place, the word ‘‘Secretariat’’; As early as practicable before the
of the partnership or of an executive prehearing scheduling conference
■ c. Removing the words ‘‘, of these
officer, director, or agent of the described in paragraph (b) of this
rules’’ in paragraph (b)(3); and
corporation or unincorporated section, but in no event later than five
■ d. Removing the word ‘‘peititioner’s’’
association to be served; or (5) days after the answer is due to be
in paragraph (d)(5) and adding, in its
filed by the last answering respondent,
(5) By publication in the Federal place, the word ‘‘petitioner’s’’ .
counsel for the parties shall meet to
Register. A respondent that cannot be ■ 11. Amend § 1025.18 by revising
discuss the nature and basis of their
served by any of the methods already paragraphs (a)(1) and (f)(4) and claims and defenses and the
described in this section may be served removing the undesignated paragraph possibilities for a prompt settlement or
by publication in the Federal Register following paragraph (f)(4) to read as resolution of the case. The parties shall
and such other notice as may be follows: also agree, if possible, on:
directed by the Presiding Officer or the (1) A proposed discovery plan
Commission, where a complaint has § 1025.18 Class actions.
specifically addressing a schedule for
issued in a class action pursuant to (a) * * *
depositions of fact witnesses, the
§ 1025.18. (1) The class of respondents is so
production of documents and
(c) Service of other documents. Except numerous or geographically dispersed electronically stored information, and
as otherwise provided in paragraph (b) that joinder of all members is the timing of expert discovery. The
of this section, when service of a impracticable; parties’ agreement regarding
document starts the running of a * * * * * electronically stored information should
prescribed period of time for the (f) * * * include the scope of and a specified
submission of a responsive document or (4) Dealing with other procedural time period for the exchange of such
the occurrence of an event, the matters. The orders may be combined information and the format for the
document shall be served by electronic with a prehearing order under § 1025.21 discovery of such information;
means unless otherwise ordered by the and may be altered or amended as may (2) A preliminary estimate of the time
Presiding Officer or otherwise agreed by be necessary. required for the evidentiary hearing; and
the parties. * * * * * (3) Any other matters to be
(d) Service on a representative. When ■ 12. Revise § 1025.19 to read as determined at the prehearing
a party has appeared by an attorney or follows: conference.
other representative, service upon that (b) Initial prehearing conference. The
attorney or other representative shall § 1025.19 Consolidation of proceedings. Presiding Officer shall hold a prehearing
constitute service upon the party. (a) Consolidation of actions. When conference not later than 50 days after
(e) Certificate of service. Every actions involving a common question of publication of the complaint in the
document filed with the Commission law or fact are pending before the Federal Register and upon ten (10)
and required to be served upon all Presiding Officer, the Commission or days’ notice to all parties and
parties to any proceedings, as well as the Presiding Officer may order a participants. At the prehearing
participants if so directed by the consolidated hearing of any or all the conference any or all of the following
Presiding Officer, shall be accompanied matters in issue in the actions; the shall be considered:
by a certificate of service signed by the Commission or the Presiding Officer (1) The factual and legal theories of
party making service, stating that such may order the actions consolidated for the parties;
service has been made upon each party any purpose; and the Commission or the (2) The current status of any pending
and participant to the proceedings. Presiding Officer may make such orders motions or petitions;
(3) A proposed date for the
Certificates of service may be in concerning such consolidated
evidentiary hearing, and a schedule of
substantially the following form: proceedings as needed to avoid
proceedings that is consistent with the
I hereby certify that I have served the unnecessary cost or delay.
date of the evidentiary hearing;
attached document upon all parties and (b) Motions for consolidation. A (4) Steps taken to preserve evidence
participants of record in these motion for consolidation may be filed relevant to the issues raised by the
proceedings by emailing, mailing by any party not later than thirty (30) claims and defenses;
postage prepaid, or delivering in person, days prior to the hearing. Such motion (5) The scope of anticipated
a copy to each on llll. shall be served upon all parties to any discovery, any limitations on discovery,
lllllllllllllllllll proceedings in which consolidation is and a proposed discovery plan,
(Signature) contemplated. The motion may include including the disclosure of
For llllllllllllllll a request that the consolidated electronically stored information;
(f) Date of service. The date of service proceedings be maintained as a class (6) Issues that can be narrowed by
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of a document shall be the date on action in accordance with § 1025.18. agreement or by motion, suggestions to
which the document is sent The proceedings may be consolidated to expedite the presentation of evidence at
electronically, deposited with the such extent and upon such terms as may trial, and any request to bifurcate issues,
United States Postal Service, postage be proper. Such consolidation may also claims or defenses; and
prepaid, or is delivered in person. be ordered upon the initiative of the (7) Other possible agreements or steps
Presiding Officer or the Commission. that may aid in the just and expeditious
§ 1025.17 [Amended] Single representatives may be disposition of the proceeding and to
■ 10. Amend § 1025.17 by: designated by represented parties, avoid unnecessary cost.
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(c) Public notice. The Presiding § 1025.22 Prehearing briefs. (1) * * *
Officer shall cause a notice of the first Not later than ten (10) days prior to (v) Grants or denies a motion under
prehearing conference, including a the hearing, unless otherwise ordered by § 1025.13 unless the Commission has
statement of the issues, to be published the Presiding Officer, the parties shall issued a decision under § 1025.13.
in the Federal Register at least ten (10) simultaneously serve and file (2) * * * The Commission may
days prior to the date scheduled for the prehearing briefs, which should set decide the petition, or may request such
conference. forth: further briefing or oral presentation as it
(d) Prehearing scheduling order. * * * * * deems necessary.
Following the first prehearing ■ 15. Amend § 1025.23 by: * * * * *
conference, the Presiding Officer shall ■ a. Removing the word ‘‘Secretary’’ ■ 17. Amend § 1025.25 by revising
enter an order that sets forth the results from paragraph (b) and adding, in its paragraphs (a), (b), (c), and (d) to read
of the conference and establishes a place, the word ‘‘Secretariat’’; and as follows:
schedule of proceedings that will permit ■ b. Revising paragraphs (a) and (c).
the evidentiary hearing to commence The revisions read as follows: § 1025.25 Summary decisions and orders.
expeditiously, including a plan for (a) Motion. Any party may file a
§ 1025.23 Motions.
discovery, and the production of motion, with a supporting
(a) Presentation and disposition. All memorandum, for a Summary Decision
documents and electronically stored
motions, except disqualification and Order in its favor upon all or any
information, dates for the submission
motions filed under § 1025.42(e) and of the issues in controversy. The motion
and hearing of motions, the time and
motions or applications related to shall be accompanied by a separate and
place of a final prehearing conference,
subpoenas under § 1025.38(c), shall be concise statement of the material facts
and other matters as appropriate.
addressed to the Presiding Officer, who as to which the moving party contends
(e) Additional conferences. shall rule upon them promptly, after
Additional prehearing conferences may there is no dispute. Complaint Counsel
affording an opportunity for response. may file such a motion at any time after
be convened at the discretion of the
* * * * * thirty (30) days following issuance of a
Presiding Officer, upon notice to the (c) Responses and replies to motions.
parties, any participants, and to the complaint, and any other party may file
Within fourteen (14) days after service a motion at any time after issuance of
public. of any written motion or petition or a complaint. Any such motion by any
(f) Final prehearing conference. As within such longer or shorter time as party shall be filed in accordance with
close to the commencement of the may be designated by this part or by the prehearing orders issued by the
evidentiary hearing as practicable, the Presiding Officer or the Commission, Presiding Officer under § 1025.21, and
Presiding Officer shall hold a final any party who opposes the granting of shall be filed no later than thirty (30)
prehearing conference, at which time the requested order, ruling or action days after the close of discovery.
deadlines for proposed stipulations as to may file a written response to the (b) Response to motion. Any other
law, fact, or admissibility of evidence, motion. Failure to respond to a written party may, within twenty (20) days after
and the exchange of exhibit and witness motion may, in the discretion of the service of the motion, file a response
lists shall be established. At this Presiding Officer, be considered as with a supporting memorandum
conference, the Presiding Officer shall consent to the granting of the relief accompanied by a separate and concise
also resolve any outstanding evidentiary sought in the motion. Replies to statement of the material facts as to
matters or pending motions (except responses shall be filed within ten (10) which the opposing party contends a
motions for summary decision) and days after service of the response. No genuine dispute exists.
establish a final schedule for the additional replies or responses shall be (c) Grounds. A Summary Decision
evidentiary hearing. permitted absent leave granted by the and Order shall be granted if the
(g) Final prehearing order. The Presiding Officer or the Commission on particular parts of materials in the
Presiding Officer shall issue a final good cause shown. Any additional record, including depositions,
prehearing order in each case after the replies or responses permitted by the documents, electronically stored
conclusion of the final prehearing Presiding Officer or the Commission information, affidavits or declarations,
conference. The final prehearing order shall be filed within five (5) days after stipulations (including those made for
should contain, to the fullest extent service of the pleading to which the purposes of the motion only),
possible at that time, all information reply or response relates. admissions, interrogatory answers, or
which is necessary for controlling the * * * * * other materials show that there is no
course of the hearing. The Presiding genuine issue as to any material fact and
Officer may require the parties to submit § 1025.24 [Amended] that the moving party is entitled to a
a jointly proposed final prehearing ■ 16. Amend § 1025.24 by: Summary Decision and Order as a
order. If the complexities of the issues, ■ a. Adding the words ‘‘that is the matter of law.
extent of discovery, or good cause subject of a proceeding under this part’’ (d) Legal effect. A Summary Decision
require that the hearing commence more at the end of paragraph (b)(1)(ii); and Order upon all the issues being
than 300 days past the filing of the ■ b. Removing the period at the end of
adjudicated shall constitute the Initial
complaint, it shall be noted in the order. paragraph (b)(1)(iv) and adding a Decision of the Presiding Officer and
(h) Reporting. Prehearing conferences semicolon in its place; may be appealed to the Commission in
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■ c. Adding paragraph (b)(1)(v); and
shall be stenographically reported as accordance with § 1025.53. A Summary
■ d. Revising the last sentence of
provided in § 1025.47 and shall be open Decision, interlocutory in character,
paragraph (b)(2).
to the public (except as provided in may be rendered on fewer than all
The addition and revision read as
§ 1025.41(a)), unless otherwise ordered issues and may not be appealed prior to
follows:
by the Presiding Officer or the issuance of the Initial Decision.
Commission. § 1025.24 Interlocutory appeals. * * * * *
■ 14. Revise § 1025.22 introductory text * * * * * ■ 18. Revise § 1025.26 to read as
to read as follows: (b) * * * follows:
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treated as a failure to respond. When limit the subpoena, setting forth the conclusions of law, and a post hearing
taking depositions, the discovering reasons why the subpoena should be brief, in accordance with § 1025.17(b).
party shall continue the examination to withdrawn or why it should be limited * * * * *
the extent possible with respect to other in scope. Any such motion shall be ■ 29. Amend § 1025.42 by:
areas of inquiry before moving to answered within five (5) days after ■ a. Revising paragraphs (a)(3), (6), and
compel discovery. service and shall be ruled on by the (9), (b), (d), and (e)(2); and
Commission as a time critical matter, in ■ b. In paragraph (e)(1), removing the
§ 1025.37 [Amended] accordance with the Commission word ‘‘Secretary’’ and adding, in its
■ 25. Amend § 1025.37(g) by removing Decision Making Procedures. The order place, the word ‘‘Secretariat’’.
the words ‘‘of these rules’’. shall specify the date, if any, for The revisions read as follows:
■ 26. Revise § 1025.38 to read as compliance with the specifications of
follows: the subpoena. § 1025.42 Powers and duties of Presiding
Officer.
§ 1025.38 Subpoenas. (h) Consequences of failure to comply.
In the event of failure by a person to (a) * * *
(a) Availability. A subpoena shall be (3) To rule upon offers of proof, and
addressed to any person not a party for comply with a subpoena, the Presiding
Officer may take any of the actions receive relevant, competent, and
the purpose of compelling attendance, probative evidence;
testimony, and production of enumerated in § 1025.37, or may order
any other appropriate relief to * * * * *
documents at a hearing or deposition, (6) To consider and rule, orally or in
and may be addressed to any party for compensate for the withheld testimony,
documents, or other materials. If in the writing, upon all procedural,
the same purposes. evidentiary, and other motions and
(b) Form. A subpoena shall identify opinion of the Presiding Officer such
relief is insufficient, the Presiding issues appropriate in adjudicative
the action with which it is connected;
Officer shall certify to the Commission proceedings;
shall specify the person to whom it is
addressed and the date, time, and place a request for judicial enforcement of the * * * * *
for compliance with its provisions; and subpoena. (9) To take any action authorized by
shall be issued by order of the this part or the provisions of title 5,
§ 1025.39 [Removed] United States Code, sections 551–559.
Commission and signed by the
■ 27. Remove § 1025.39. (b) Exclusion of parties by Presiding
Secretariat or by the Presiding Officer. A
subpoena duces tecum shall specify the ■ 28. Amend § 1025.41 by revising Officer. A Presiding Officer shall have
books, papers, documents, or other paragraphs (a) through (d) to read as the authority, for good cause stated on
materials or data-compilations to be follows: the record, to exclude from participation
produced. in any proceedings any party,
§ 1025.41 General rules. participant, or representative who
(c) How obtained—(1) Content of
application. An application for the (a) Public hearings. All hearings violates the requirements of § 1025.66.
issuance of a subpoena, stating reasons, conducted pursuant to this part shall be Any party, participant or representative
shall be submitted to the Presiding public unless otherwise ordered by the so excluded may appeal to the
Officer, who shall forward the Commission or the Presiding Officer, Commission in accordance with the
application to the Commission. except that Commissioners and their provisions of § 1025.24. If the
(2) Procedure for application. The staffs shall not attend or view public representative of a party or participant
Commission shall rule upon the hearings concerning matters that may is excluded, the hearing may be
application for a subpoena ex parte, by become subject of review by the suspended for a reasonable time so that
issuing an order granting or denying the Commission as the appellate body. the party or participant may obtain
application. (b) Prompt completion. Hearings shall another representative.
(d) Issuance of a subpoena. The proceed with all reasonable speed and, * * * * *
Commission shall issue a subpoena by insofar as practicable with due regard to (d) Interference. In the performance of
authorizing the Secretariat or the the convenience of the parties, shall be adjudicative functions, a Presiding
Presiding Officer to sign and date the held at one location and continue Officer shall not be responsible to or
approved subpoena for transmittal to without suspension until concluded, subject to the supervision or direction of
the applicant for service. except in unusual circumstances or as any Commissioner or any member of a
(e) Service of a subpoena. A subpoena otherwise provided in this part. The Commissioner’s staff or of any officer,
issued by the Commission shall be hearing shall be limited to no more than employee, or agent engaged in the
served upon the addressee as provided 210 hours; provided that the Presiding performance of investigative or
in § 1025.16(b)(2) through (5) and upon Officer, upon a showing of good cause, prosecuting functions for the
all parties as provided in § 1025.16(b). may extend the number of hours for the Commission. All directions by the
(f) Return of service. A person serving hearing. Commission to a Presiding Officer
a subpoena shall promptly execute a (c) Rights of parties. Every party shall concerning any adjudicative
return of service, stating the date, time, have the right of timely notice and all proceedings shall appear on and be
and manner of service upon the other rights essential to a fair hearing, made a part of the record.
addressee. If service is effected by mail including, but not limited to, the right (e) * * *
or commercial carrier, the signed return to present evidence, to conduct such (2) Whenever, for good and reasonable
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receipt or proof of delivery shall cross-examination as may be necessary cause, any party considers the Presiding
accompany the return of service. In case for a full and complete disclosure of the Officer to be disqualified to preside, or
of failure to make service, a statement of facts, and to be heard by objection, to continue to preside, in any
the reasons for the failure shall be made. motion, brief, and argument. adjudicative proceedings, that party
(g) Motion to quash or limit subpoena. (d) Rights of participants. Every may file with the Secretariat a motion to
Within five (5) days after receipt of a participant shall have the right to make disqualify and remove, supported by
subpoena, the person to whom it is a written or oral statement of position affidavit(s) setting forth the alleged
directed may file a motion to quash or and to file proposed findings of fact, grounds for disqualification. A copy of
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![Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules 21793
transcripts are available from the § 1025.52 [Amended] § 1025.56 [Amended]
reporter at a cost not to exceed the ■ 38. Amend § 1025.52 by removing the ■ 41. Amend § 1025.56 by:
maximum rates fixed by contract word ‘‘Secretary’’ and adding, in its ■ a. Removing the word ‘‘sevice’’ and
between the Commission and the place, the word ‘‘Secretariat’’. adding, in its place, the word ‘‘service’’;
reporter. In accordance with Section 11 ■ 39. Amend § 1025.53 by revising and
of the Federal Advisory Committee Act paragraphs (a), (b) introductory text, (c), ■ b. Adding, in the last sentence, the
(Pub. L. 92–463, 5 U.S.C. app. section and (f) to read as follows: word ‘‘Final’’ before the words
11), copies of transcripts may be made ‘‘Decision or Order’’.
§ 1025.53 Appeal from initial decision. ■ 42. Amend § 1025.57 by revising
by members of the public or by
Commission personnel, when available, (a) Notices of appeal. Any party may paragraph (a), removing paragraph (b),
at the Secretariat at reproduction costs appeal an Initial Decision to the and redesignating paragraph (c) as
as provided in § 1025.49. Commission by serving a notice of paragraph (b) to read as follows:
appeal within ten (10) days after
* * * * * issuance of the Initial Decision. § 1025.57 Effective date of order.
■ 35. Revise § 1025.48 to read as (b) Appeal brief. An appeal is (a) Orders in proceedings arising
follows: perfected by filing a brief within forty under the Consumer Product Safety Act.
§ 1025.48 Official docket. (40) days after service of the Initial An order of the Commission in
Decision. The appeal brief must be adjudicative proceedings under this part
The official docket in any served upon all parties. The brief shall becomes effective upon receipt by the
adjudicatory proceedings shall be not exceed thirty (30) pages, excluding respondent, unless otherwise ordered by
maintained electronically by the covers, indexes, table of contents, list of the Commission.
Secretariat as set forth in § 1025.14 and citations, and list of references. The * * * * *
shall be made available to the public. appeal brief shall contain, in the order ■ 43. Amend § 1025.58 by:
■ 36. Amend § 1025.49 by revising indicated, the following: ■ a. Removing paragraph (b);
paragraph (a) to read as follows: * * * * * ■ b. Redesignating paragraphs (c)
§ 1025.49 Fees. (c) Answering brief. Within thirty (30) through (f) as paragraphs (b) through (e);
days after service of the appeal brief and
(a) Fees for deponents and witnesses. upon all parties, any party may file an ■ c. Revising newly redesignated
Any person compelled to appear in answering brief, which shall contain a paragraphs (b)(2) and (d)(2).
person in response to a subpoena or subject index, with page references, and The revisions read as follows:
notice of deposition shall be paid the a table of cases (alphabetically
same attendance and mileage fees as are § 1025.58 Reopening of proceedings.
arranged), textbooks, statutes, and other
paid witnesses in the courts of the material cited, with page references * * * * *
United States, in accordance with title (b) * * *
thereto. Such brief shall present clearly
28, United States Code, section 1821. (2) After effective date of order.
the points of fact and law relied upon
The fees and mileage referred to in this Whenever the Commission determines
in support of the reasons the party has
paragraph (a) shall be paid by the party that changed conditions of fact or law or
for each position urged, with specific
at whose instance deponents or the public interest may require that a
page references to the record and legal
witnesses appear. The parties may by Commission decision or order be
or other materials relied upon. An
agreement modify this provision. altered, modified, or set aside in whole
answering brief shall be subject to the
* * * * * or in part, the Commission shall serve
same page limit as the appeal brief.
■ 37. Amend § 1025.51 by revising
upon all parties to the original
* * * * * proceedings an order to show cause,
paragraphs (a), (c), and (d)(1) to read as (f) Reply brief. A reply brief shall be
follows: stating the changes the Commission
limited to rebuttal of matters presented proposes to make in the decision or
§ 1025.51 Initial decision.
in answering briefs, including matters order and the reasons such changes are
raised in cross-appeals. A reply brief deemed necessary. Within thirty (30)
(a) When filed. The Presiding Officer may be filed and served within fourteen
shall endeavor to file an Initial Decision days after service of an order to show
(14) days after service of an answering cause, any party to the original
with the Commission within sixty (60) brief and shall not exceed fifteen (15)
days after the closing of the record or proceedings may file a response. Any
pages, excluding covers, indexes, table party not responding to the order to
the filing of post-hearing briefs, of contents, list of citations, and list of
whichever is later. show cause within the time allowed
references. shall be considered to have consented to
* * * * * * * * * * the proposed changes.
(c) By whom made. The Initial ■ 40. Amend § 1025.55 by:
* * * * *
Decision shall be made and filed by the ■ a. Removing the comma following the
(d) * * *
Presiding Officer who presided over the words ‘‘in addition’’ in paragraph (a); (2) Factual issues. When the
hearing, unless otherwise ordered by the and pleadings raise substantial factual
Commission due to the disqualification ■ b. Revising paragraph (c).
The revision reads as follows: issues, the Commission may direct the
of the Presiding Officer pursuant to Presiding Officer to conduct such
§ 1025.42. § 1025.55 Final decision on appeal or additional hearings as it deems
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(d) * * * review. appropriate. Upon conclusion of the
(1) At any time prior to, or * * * * * hearings, and including the filing of
concomitant with, the filing of the (c) Except as otherwise ordered by the post-hearing briefs containing proposed
Initial Decision, the Presiding Officer Commission, the Commission shall file findings of fact and conclusions of law,
may reopen the proceedings for the its Decision within ninety (90) days as well as a proposed order, the
reception of further evidence where the after the filing of all briefs or after Presiding Officer shall issue a
interests of justice so require. receipt of transcript of the oral Recommended Decision, including
* * * * * argument, whichever is later. proposed findings and conclusions, and
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![21794 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules
the reasons therefor, as well as a section, the post-employment not employed by the Commission,
proposed Commission order. If the restrictions applicable to former which is:
Presiding Officer recommends that the Commission members and employees, (i) Written and not served on all
Commission’s original order be including but not limited to those parties; or
reopened, the proposed order shall referenced at 16 CFR 1030.101, 5 CFR (ii) Oral and without advance notice
include appropriate provisions for the part 2641, 18 U.S.C. 207, and, as to all parties to the proceedings and
alteration, modification or setting aside applicable, Executive Order 13490, shall opportunity for them to be present.
of the original order. The record and the govern the activities of former (d) Permissible ex parte
Presiding Officer’s Recommended Commission members and employees in communications. The following
Decision shall be certified to the adjudicative matters connected with communications shall not be prohibited
Commission for final disposition of the their former duties and responsibilities. under this section.
matter. (b) Participation as witness. A former (1) Ex parte communications
* * * * * member or employee of the Commission authorized by statute or by this part.
■ 44. Revise § 1025.63 to read as may testify in any proceeding subject to (See, for example, § 1025.38 which
follows: this part concerning his/her governs applications for the issuance of
participation in any Commission subpoenas.)
§ 1025.63 Written appearances. activity. This section does not constitute (2) Any staff communication
(a) Filing. Any person who appears in a waiver by the Commission of any concerning judicial review or judicial
any proceedings shall file a written objection provided by law to testimony enforcement in any matter pending
notice of appearance, stating for whom that would disclose privileged or before or decided by the Commission.
the appearance is made and the name, (3) Communications by any party to
confidential material. The provisions of
electronic address, mailing address, and the Commission concerning a proposed
18 U.S.C. 1905 prohibiting the
telephone number of the person making settlement agreement that has been
disclosure of trade secrets also applies
the appearance and the date of the transmitted to the Commission.
to testimony by former members and
commencement of the appearance. The (e) Procedures for handling prohibited
employees.
appearance shall be made a part of the ex parte communication—(1) Prohibited
* * * * * written ex parte communication. To the
record.
■ 48. Revise § 1025.68 to read as extent possible, a prohibited written ex
(b) Withdrawal. Any person who has
previously appeared in any proceedings follows: parte communication received by any
may withdraw his/her appearance by § 1025.68 Prohibited ex parte Commission employee or interested
filing a written notice of withdrawal of communications. person not employed by the
appearance with the Secretariat. The Commission shall be forwarded to the
(a) Applicability. This section is
notice of withdrawal of appearance Secretariat or Presiding Officer, as
applicable during the period
shall state the name, electronic address, appropriate. A prohibited written ex
commencing with the date of issuance
mailing address, and telephone number parte communication which reaches a
of a complaint and ending upon final
(including area code) of the person decision-maker shall be forwarded by
Commission action in the matter.
withdrawing the appearance, for whom the decision-maker to the Secretariat or
(b) Except as set forth in paragraph (d)
the appearance was made, and the the Presiding Officer, as appropriate. If
of this section, ex parte communications
effective date of the withdrawal of the the circumstances in which a prohibited
in any form that are relevant to the
appearance. Such notice of withdrawal ex parte written communication was
merits of any proceedings under this
shall be filed within five (5) days of the made are not apparent from the
part are prohibited:
effective date of the withdrawal of the communication itself, a statement
(1) By any interested person not describing those circumstances shall be
appearance. employed by the Commission to any forwarded with the communication.
§ 1025.65 [Amended] decision-maker; or (2) Prohibited oral ex parte
■ 45. Amend § 1025.65 by: (2) By a decision maker to any communication. (i) If a prohibited oral
■ a. Removing the word ‘‘files’’ from interested person not employed by the ex parte communication is made to a
paragraph (a) and adding, in its place, Commission. decision-maker or interested person not
the word ‘‘provides’’; and (c) Definitions—(1) Decision-maker, as employed by the Commission, he/she
■ b. Removing the word ‘‘Secretary’’ in used in this section, shall include: shall advise the person making the
paragraph (a) and adding, in its place, Those Commission personnel who communication that the communication
the word ‘‘Secretariat’’. render decisions in adjudicative is prohibited and shall terminate the
proceedings under this part, or who discussion; and
§ 1025.66 [Amended] advise officials who render such (ii) The recipient of the
■ 46. Amend § 1025.66 by removing the decisions, including: communication shall forward to the
words ‘‘of these rules’’ from paragraph (i) The Commissioners and their Secretariat or the Presiding Officer, as
(d). staffs; appropriate, a signed and dated
■ 47. Amend § 1025.67 by: (ii) The Administrative Law Judges
■ a. Revising the section heading and
statement containing such of the
and their staffs; following information as is known to
paragraphs (a) and (b); and (iii) The General Counsel and his/her
■ b. Removing the word ‘‘Secretary’’ in him/her.
staff, unless otherwise designated by the (A) The title and docket number of the
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paragraph (c) introductory text and
General Counsel. proceedings;
adding, in its place, the word
(2) Ex parte communication. Any (B) The name and address of the
‘‘Secretariat’’.
The revisions read as follows: communication concerning a matter that person making the communication and
is the subject of proceedings under this his/her relationship (if any) to the
§ 1025.67 Restrictions as to former part that is made by an interested parties and/or participants to the
Commission members and employees. person not employed by the proceedings;
(a) Generally. Except as otherwise Commission to a decision-maker or by (C) The date and time of the
provided in paragraph (b) of this a decision-maker to an interested person communication, its duration, and the
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![Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules 21795
circumstances (e.g., telephone call, Authority: 5 U.S.C. 504, 551 et seq. adjustments to rights to acquire stock.
personal interview, etc.) under which it ■ 50. Add § 1025.69 to subpart H to read The proposed regulations also would
was made; as follows: provide additional guidance to
(D) A brief statement of the substance withholding agents regarding their
of the matters discussed; and § 1025.69 Separation of functions. current withholding and information
(E) Whether the person making the An employee or agent engaged in the reporting obligations under chapters 3
communication persisted in doing so performance of investigative or and 4 with respect to these deemed
after being advised that the prosecuting functions for the distributions. The proposed regulations
communication was prohibited. Commission in a case, other than a would affect corporations issuing rights
(3) Filing. All communications and Commissioner, may not, in that or a to acquire stock, their shareholders and
statements forwarded to the Secretariat factually related case, participate or holders of these rights, and withholding
or Presiding Officer under this section advise in the decision, recommended agents with respect to these deemed
shall be placed in a public file which decision, or agency review of the distributions.
shall be associated with, but not made recommended decision, except as
a part of, the record of the proceedings DATES: Written or electronic comments
witness or counsel in public and requests for a public hearing must
to which the communication or proceedings.
statement pertains. be received by July 12, 2016.
■ 51. Revise § 1025.70 to read as
(4) Service on parties. The Secretariat ADDRESSES: Send submissions to:
follows:
or the Presiding Officer, as appropriate, CC:PA:LPD:PR (REG–133673–15), Room
shall serve a copy of each § 1025.70 General provisions. 5203, Internal Revenue Service, PO Box
communication and statement The Equal Access to Justice Act, 5 7604, Ben Franklin Station, Washington,
forwarded under this section on all U.S.C. 504 (called ‘‘the EAJA’’ in this DC, 20044. Submissions may be hand-
parties to the proceedings. However, if subpart), provides for the award of delivered Monday through Friday
the parties are numerous, or if the attorney fees and other expenses to between the hours of 8 a.m. and 4 p.m.
Secretary or Presiding Officer, as eligible persons who are parties to to CC:PA:LPD:PR (REG–133673–15),
appropriate, determine that service of certain adversary adjudicative Courier’s Desk, Internal Revenue
the communication or statement would proceedings before the Commission. Service, 1111 Constitution Avenue NW.,
be unduly burdensome, he/she, in lieu Applications for such fees and expenses Washington, DC, 20224 or sent
of service, may notify all parties in may be made according to the EAJA, as electronically, via the Federal
writing that the communication or interpreted by the federal courts and eRulemaking Portal at
statement has been made and filed and guidance provided by the U.S. www.regulations.gov (indicate IRS and
that it is available for inspection and Department of Justice. REG–133673–15).
copying. FOR FURTHER INFORMATION CONTACT:
(5) Service on maker. The Secretariat 1025.71 and 1025.72 and Appendix I to Part Concerning the proposed regulations
or the Presiding Officer, as appropriate, 1025 [Removed] under section 305, Maurice M. LaBrie,
shall forward to the person who made ■ 52. Remove §§ 1025.71 and 1025.72 (202) 317–5322; concerning the
the prohibited ex parte communication and appendix I to part 1025. proposed regulations under sections
a copy of each communication or 860G, 861, 1441, 1461, 1471, and 1473,
Dated: April 5, 2016.
statement filed under this section. Subin Seth, (202) 317–6942; concerning
(f) Effect of ex parte communications. Todd A. Stevenson,
Secretary, Consumer Product Safety the proposed regulations under section
No prohibited ex parte communication
Commission. 6045B, Pamela Lew, (202) 317–7053;
shall be considered as part of the record
for decision unless introduced into [FR Doc. 2016–08125 Filed 4–12–16; 8:45 am] concerning submission of comments,
evidence by a party to the proceedings. BILLING CODE 6355–01–P
contact Regina Johnson, (202) 317–6901
(g) Sanctions. A person or party who (not toll-free numbers).
makes a prohibited ex parte SUPPLEMENTARY INFORMATION:
communication, or who encourages or DEPARTMENT OF THE TREASURY Background and Explanation of
solicits another to make any such Provisions
communication, may be subject to Internal Revenue Service
sanctions including but not limited to 1. Overview
exclusion from the proceedings and an 26 CFR Part 1 This document contains proposed
adverse ruling on the issue which is the regulations that amend 26 CFR part 1
[REG–133673–15]
subject of the prohibited under sections 305, 860G, 861, 1441,
communication. A person, not a party to RIN 1545–BN07 1461, 1471, 1473, and 6045B of the
the proceeding, who makes or causes to Internal Revenue Code of 1986 (Code)
be made an ex parte communication Deemed Distributions Under Section
concerning deemed distributions that
prohibited by paragraph (b) of this 305(c) of Stock and Rights to Acquire
are or result from adjustments to rights
section shall be subject to all sanctions Stock
to acquire stock.
provided in this section if such person AGENCY: Internal Revenue Service (IRS), Final regulations under section 305
subsequently becomes a party to the Treasury. were published in the Federal Register
proceeding. on July 12, 1973 (TD 7281, 38 FR
jstallworth on DSK7TPTVN1PROD with PROPOSALS
ACTION: Notice of proposed rulemaking.
18531), and amendments to those final
Subpart H—Implementation of the
SUMMARY: This document contains regulations were published in the
Equal Access to Justice Act in
proposed regulations regarding deemed Federal Register on October 15, 1974
Adjudicative Proceedings With the
distributions of stock and rights to (TD 7329, 39 FR 36860), and in the
Commission
acquire stock. The proposed regulations Federal Register on December 21, 1995
■ 49. The authority citation for part would resolve ambiguities concerning (TD 8643, 60 FR 66134).
1025, subpart H, is revised to read as the amount and timing of deemed Final regulations under sections 1441
follows: distributions that are or result from and 1461 were published in the Federal
VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 E:\FR\FM\13APP1.SGM 13APP1](https://thefederalregister.org/doc/81_FR_21846/page/21.svg)
Document Created: 2016-04-13 03:11:32
Document Modified: 2016-04-13 03:11:32
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Submit comments by June 13, 2016. | |
| 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. | |
| FR Citation | 81 FR 21775 | |
| CFR Associated | Administrative Practice and Procedure and Consumer Protection |
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