Rule2023-12630
Rules of Practice
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 5, 2023
Effective
July 5, 2023
Issuing agencies
Federal Trade Commission
Abstract
The Commission is amending its rules of practice to reflect the creation of the agency's new Office of Technology. The Commission is also amending, its rules of practice for adjudicative proceedings so that administrative law judges presiding over an administrative hearing render a "recommended" decision rather than an "initial" decision. Additionally, the Commission is amending its rules of practice to reflect new procedures for making Touhy and Privacy Act requests. Finally, the Commission is amending certain provisions in its rules of practice to fix misspellings and cross-references and make other ministerial changes.
Full Text
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<title>Federal Register, Volume 88 Issue 127 (Wednesday, July 5, 2023)</title>
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[Federal Register Volume 88, Number 127 (Wednesday, July 5, 2023)]
[Rules and Regulations]
[Pages 42872-42878]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12630]
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FEDERAL TRADE COMMISSION
16 CFR Parts 0, 1, 2, 3 and 4
Rules of Practice
AGENCY: Federal Trade Commission.
ACTION: Final rules.
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SUMMARY: The Commission is amending its rules of practice to reflect
the creation of the agency's new Office of Technology. The Commission
is also amending, its rules of practice for adjudicative proceedings so
that administrative law judges presiding over an administrative hearing
render a ``recommended'' decision rather than an ``initial'' decision.
Additionally, the Commission is amending its rules of practice to
reflect new procedures for making Touhy and Privacy Act requests.
Finally, the Commission is amending certain provisions in its rules of
practice to fix misspellings and cross-references and make other
ministerial changes.
DATES: This rule is effective on June 5, 2023. The rules of practice
for adjudicative proceedings that were in effect before June 5, 2023
will govern all currently pending Commission adjudicative proceedings.
FOR FURTHER INFORMATION CONTACT: Josephine Liu, (202) 326-2170, or
Michael Lezaja, (202) 326-2661, Office of the General Counsel, Federal
Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.
SUPPLEMENTARY INFORMATION: The Federal Trade Commission is revising
certain rules in parts 0 through 4 of its rules of practice, 16 CFR
parts 0 through 4. These revisions fall into four categories: (1)
revisions in parts 0 and 2 to reflect the creation of the agency's new
Office of Technology; (2) revisions in part 3 so that the
administrative law judge (ALJ) will issue a ``recommended'' decision
after each administrative hearing rather than an ``initial'' decision,
and so that each recommended decision will be subject to automatic
Commission review; (3) revisions in part 4 to amend the procedures for
Touhy and Privacy Act requests; and (4) revisions to parts 1 and 3 to
make ministerial changes such as updating cross-references and fixing
misspellings.
Because these rule revisions relate solely to agency procedure and
practice, publication for notice and comment is not required under the
Administrative Procedure Act. 5 U.S.C. 553(b).\1\
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\1\ For this reason, the requirements of the Regulatory
Flexibility Act are also inapplicable. 5 U.S.C. 601(2), 604(a).
Likewise, the amendments do not modify any FTC collections of
information within the meaning of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq.
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I. Revisions to Part 0--Organization
The Commission recently created a new Office of Technology.
Consequently, the Commission is adding new 16 CFR 0.8(f) to include
[[Page 42873]]
information about the new Office of Technology.
II. Revisions to Part 1--General Procedures
The Commission is revising part 1 of its rules to fix cross-
references in Sec. Sec. 1.13(b) and 1.26(b)(5), fix misspellings in
Sec. Sec. 1.22(c) and 1.73(b)(1), correct an outdated reference to the
``Division of Credit Practices'' in Sec. 1.71, and eliminate redundant
use of both spelled-out numbers and Roman numerals in Sec. 1.73(b)(1).
III. Revisions to Part 2--Investigative, Settlement, and Compliance
Procedures
As noted above, the Commission recently created the new Office of
Technology. The Commission is revising Sec. Sec. 2.7(l) and 2.10(a)(5)
to add the Chief Technology Officer and Deputy Chief Technology Officer
to the list of officials who have delegated authority to modify the
terms of compliance with compulsory process and extend certain
deadlines relating to compulsory process. This change will put the
Chief Technology Officer and Deputy Chief Technology Officer on equal
footing with other designated officials like the Director and Deputy
Director of the Office of Policy Planning who already have this
delegated authority.
IV. Revisions to Part 3--Rules of Practice for Adjudicative Proceedings
The Commission is revising part 3 so that the ALJ will issue a
``recommended'' decision after each administrative hearing, rather than
an ``initial'' decision. Under the Administrative Procedure Act, an ALJ
who presides at the reception of evidence in an adjudicative proceeding
can either (1) render an ``initial decision,'' or (2) ``recommend a
decision'' to the agency and ``certify'' the ``entire record'' to the
agency for a decision. 5 U.S.C. 557(b). When the ALJ issues an
``initial decision,'' that ``becomes the decision of the agency without
further proceedings'' unless a party seeks review of the initial
decision before the agency or the agency, on its own initiative, elects
to review the initial decision. Id. A ``recommended decision,'' by
contrast, is issued in cases where the agency will automatically review
the recommended decision. In evaluating the recommended decision, the
agency may affirm the recommended decision in full or may reject the
ALJ's recommended decision, in whole or in part, and issue its own
decision adopting different findings of fact or conclusions of law.
Before the agency can take action on an ALJ's recommended decision, the
agency must provide the parties with a ``reasonable opportunity to
submit exceptions'' to the recommended decision and ``supporting
reasons for the exceptions.'' 5 U.S.C. 557(c). In addition, the agency
must rule on each exception presented. Id.
Section 3.24: Summary Decisions
In Sec. 3.24, the Commission is deleting the language about
referring motions for summary decision to the ALJ. The granting of
summary decision indicates that there is no genuine issue as to any
material fact regarding liability or relief, and it results in the
issuance of a final decision and order. Because the Commission is
amending its rules of practice so that the ALJ will issue only
recommended decisions, not initial decisions, the Commission is
revising Sec. 3.24 to eliminate the ALJ's ability to rule on motions
for summary decision. In addition, as a practical matter, the
Commission has not referred any motions for summary decision to the ALJ
since Sec. 3.24 was revised in 2009 to permit the Commission to
resolve dispositive motions in the first instance unless referred by
the Commission to the ALJ. See 74 FR 1804, 1811 (2009).
Section 3.51: Recommended Decision
This section--previously named ``Initial decision''--is being
renamed to reflect the ALJ's new role in issuing recommended decisions.
The Commission is also deleting outdated language in Sec. 3.51(a)
about the initial decision becoming the decision of the Commission
unless a party perfects an appeal or the Commission places the case on
its own docket for review. That language is inapplicable to recommended
decisions, which are automatically reviewed by the Commission.
Under the APA, when an ALJ issues a recommended decision, the ALJ
must also ``certify'' the ``entire record'' to the agency for a
decision. 5 U.S.C. 557(b). In new Sec. 3.51(a)(2), the Commission is
adding language to explain what constitutes the record of the
proceeding--i.e., the recommended decision; any transcripts from
prehearing conferences; all hearing transcripts; all rulings; all
exhibits; and the pleadings, motions, briefs, memoranda, and other
supporting papers filed in connection with the proceeding. The
Commission is also requiring the ALJ to provide an index of each
exhibit identified but not received into evidence, to help ensure that
the Commission does not inadvertently rely upon an exhibit that was
never admitted.
Section 3.52: Exceptions to Recommended Decision
Under the APA, parties must be given a ``reasonable opportunity to
submit exceptions'' to the recommended decision and ``supporting
reasons for the exceptions.'' 5 U.S.C. 557(c). The Commission is
renaming Sec. 3.52--previously named ``Appeal from initial
decision''--to be consistent with this terminology and also to
eliminate the reference to initial decisions.
Section 3.52(a) will continue to govern the timing of Commission
review for cases in which the Commission sought preliminary relief in
federal court; Sec. 3.52(b) will continue to govern the timing of
Commission review for all other cases.
In Sec. 3.52(b)(1), the Commission is eliminating the requirement
that parties first file a notice of appeal and then perfect their
appeal by filing an opening appeal brief. Under the revised rule,
parties will file their exceptions to the recommended decision simply
by filing an opening brief.
In new Sec. 3.52(b)(2), the Commission is adding a paragraph to
explain the procedures that will govern when no party files exceptions
to the recommended decision. As stated in new Sec. 3.52(b)(2), the
Commission may in its discretion hold oral argument within 30 days
after the deadline for the filing of exceptions. The Commission will
issue its final decision within 100 days after oral argument; or, if no
oral argument is scheduled, the Commission will issue its final
decision within 100 days after the deadline for the filing of
exceptions.
Section 3.53: Review of Recommended Decision in Absence of Exceptions
The Commission is renaming this section--previously named ``Review
of recommended decision in absence of appeal''--to be consistent with
the terminology used elsewhere in the revised rules.
As explained in Sec. 3.53, if no party files exceptions to the
recommended decision, the Commission will enter an order placing the
case on its own docket for review. The Commission's order will set
forth the scope of such review and the issues to be considered. The
order will also provide for the filing of briefs if appropriate.
Section 3.54: Commission Decision After Review of Recommended Decision
The Commission is renaming this section--previously named
``Decision on appeal or review''--to be consistent with the terminology
used elsewhere in the revised rules.
[[Page 42874]]
The Commission is deleting old Sec. 3.54(a). The old language
about the powers of the Commission during an appeal from or review of
an initial decision is no longer needed, given that the entire record
is now being certified to the Commission for a decision.
Sections 3.1, 3.21(c)(2), 3.38(c), 3.42(c)(9), 3.46(e), 3.82(d)(3), and
3.83(g)-(h)
In these rules, the Commission is changing language that mentions
``initial decisions'' so that the language instead mentions
``recommended decisions.'' The Commission is also correcting other
provisions that are inconsistent with the recommended decision
procedure.
Ministerial Changes
Finally, the Commission is eliminating redundant use of both
spelled-out numbers and Roman numerals in Sec. 3.42(e) and (g)(2).
V. Revisions to Part 4--Miscellaneous Rules
The Commission is revising Sec. 4.11(e) to clarify the procedures
that apply to Touhy requests seeking records or testimony from the
Commission Office of Inspector General, and revising its Privacy Act
rules in Sec. 4.13 to conform with the CASES Act and implementing OMB
guidance.
Section 4.11(e): Requests for Testimony, Pursuant to Compulsory Process
or Otherwise, and Requests for Material Pursuant to Compulsory Process,
in Cases or Matters to Which the Commission is Not a party
In Sec. 4.11(e), the Commission is adding language to clarify that
where there is a request under Sec. 4.11(e) for records or testimony
from the Commission Office of Inspector General, the Inspector
General--rather than the General Counsel--will consider and act upon
these requests.
Section 4.13: Privacy Act Rules
In Sec. 4.13(d), the Commission is clarifying when persons
submitting written requests are required to verify their identity. This
change complies with the requirements of the Creating Advanced
Streamlined Electronic Services for Constituents Act of 2019 (``CASES
Act''), Public Law 116-50, 133 Stat. 1074 (codified at 5 U.S.C. 552a
note), and OMB M-21-04, Modernizing Access to and Consent for
Disclosure of Records Subject to the Privacy Act (Nov. 12, 2020). Under
the CASES Act and implementing OMB guidance, agencies must accept
remote identity-proofing and authentication for the purposes of
allowing an individual to request access to their records or to provide
prior written consent authorizing disclosure of their records under the
Privacy Act. Specifically, the changes to Sec. 4.13(d) clarify that
persons submitting Privacy Act requests are required to verify their
identity, and that the deciding official will require additional
verification of a requester's identity when reasonably necessary to
protect against improper disclosure of records.
List of Subjects
16 CFR Parts 0, 1, 2 and 3
Administrative practice and procedure.
16 CFR Part 4
Administrative practice and procedure, Freedom of information,
Public record, Sunshine Act.
For the reasons set forth in the preamble, the Federal Trade
Commission amends title 16, chapter I, subchapter A of the Code of
Federal Regulations as follows:
PART 0--ORGANIZATION
0
1. The authority for Part 0 continues to read as follows:
Authority: 5 U.S.C. 552(a)(1); 15 U.S.C. 46(g).
0
2. In Sec. 0.8, revise paragraphs (d) and (e) and add paragraph (f) to
read as follows:
Sec. 0.8 The Chair.
* * * * *
(d) The Office of Policy Planning, which assists the Commission to
develop and implement long-range competition and consumer protection
policy initiatives;
(e) The Office of Public Affairs, which furnishes information
concerning Commission activities to news media and the public; and
(f) The Office of Technology, which employs expertise in technology
to strengthen and support law enforcement investigations and actions,
advise and engage with FTC staff and the Commission on policy and
research initiatives, and engage the public and relevant experts to
understand trends and to advance the Commission's work.
PART 1--GENERAL PROCEDURES
0
3. The authority for subpart B of Part 1 continues to read as follows:
Authority: 15 U.S.C. 46; 15 U.S.C. 57a; 5 U.S.C. 552; 5 U.S.C.
601 note.
0
4. In Sec. 1.13, amend paragraph (b) introductory text by revising the
first sentence to read as follows:
Sec. 1.13 Conduct of informal hearing by the presiding officer.
* * * * *
(b) * * * If requested under Sec. 1.11(e), an informal hearing
with the opportunity for oral presentations will be conducted by the
presiding officer. * * *
* * * * *
0
5. The authority for subpart C of Part 1 continues to read as follows:
Authority: 15 U.S.C. 46; 5 U.S.C. 601 note.
0
6. In Sec. 1.22, revise paragraph (c) to read as follows:
Sec. 1.22 Rulemaking.
* * * * *
(c) Use of rules in adjudicative proceedings. When a rule is
relevant to any issue involved in an adjudicative proceeding thereafter
instituted, the Commission may rely upon the rule to resolve such
issue, provided that the respondent shall have been given a fair
hearing on the applicability of the rule to the particular case.
0
7. In Sec. 1.26, revise paragraph (b)(5) to read as follows:
Sec. 1.26 Procedure.
* * * * *
(b) * * *
(5) A statement setting forth such procedures for treatment of
communications from persons not employed by the Commission to
Commissioners or Commissioner Advisors with respect to the merits of
the proceeding as will incorporate the requirements of Sec. 1.18(c),
including the transcription of oral communications required by Sec.
1.18(c)(1)(ii), adapted in such form as may be appropriate to the
circumstances of the particular proceeding.
* * * * *
0
8. The authority for subpart H of Part 1 continues to read as follows:
Authority: 84 Stat. 1128, 15 U.S.C. 1681 et seq.
0
9. In Sec. 1.71, revise the first sentence to read as follows:
Sec. 1.71 Administration.
The general administration of the Fair Credit Reporting Act (Title
VI of the Consumer Credit Protection Act of 1968; enacted October 26,
1970; Pub. L. 91-508, 82 Stat. 146, 15 U.S.C. 1601 et seq.) is carried
out by the Bureau of Consumer Protection, Division of Privacy and
Identity Protection. * * *
0
10. In Sec. 1.73, revise paragraph (b)(1) to read as follows:
Sec. 1.73 Interpretations.
* * * * *
[[Page 42875]]
(b) * * *
(1) Requests for Commission interpretations should be submitted in
writing to the Secretary of the Federal Trade Commission stating the
nature of the interpretation requested and the reasons and
justification therefor. If the request is granted, as soon as
practicable thereafter, the Commission will publish a notice in the
Federal Register setting forth the text of the proposed interpretation.
Comments, views, or objections, together with the grounds therefor,
concerning the proposed interpretation may be submitted to the
Secretary of the Commission within 30 days of public notice thereof.
The proposed interpretation will automatically become final after the
expiration of 60 days from the date of public notice thereof, unless
upon consideration of written comments submitted as hereinabove
provided, the Commission determines to rescind, revoke, modify, or
withdraw the proposed interpretation, in which event notification of
such determination will be published in the Federal Register.
* * * * *
PART 2--NONADJUDICATIVE PROCEDURES
0
11. The authority for Part 2 continues to read as follows:
Authority: 15 U.S.C. 46.
0
12. In Sec. 2.7, amend paragraph (l) by revising the first sentence to
read as follows:
Sec. 2.7 Compulsory process in investigations.
* * * * *
(l) * * * The Directors of the Bureaus of Competition, Consumer
Protection, and Economics and the Office of Policy Planning, their
Deputy Directors, the Assistant Directors of the Bureaus of Competition
and Economics, the Associate Directors of the Bureau of Consumer
Protection, the Regional Directors, the Assistant Regional Directors,
the Chief Technology Officer, and the Deputy Chief Technology Officer
are all authorized to modify and, in writing, approve the terms of
compliance with all compulsory process, including subpoenas, CIDs,
reporting programs, orders requiring reports, answers to questions, and
orders requiring access. * * *
0
13. In Sec. 2.10, revise paragraph (a)(5) to read as follows:
Sec. 2.10 Petitions to limit or quash Commission compulsory process.
(a) * * *
(5) Extensions of time. The Directors of the Bureaus of
Competition, Consumer Protection, and Economics and the Office of
Policy Planning, their Deputy Directors, the Assistant Directors of the
Bureaus of Competition and Economics, the Associate Directors of the
Bureau of Consumer Protection, the Regional Directors, the Assistant
Regional Directors, the Chief Technology Officer, and the Deputy Chief
Technology Officer are delegated, without power of redelegation, the
authority to rule upon requests for extensions of time within which to
file petitions to limit or quash Commission compulsory process.
* * * * *
PART 3--RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS
0
14. The authority for Part 3 continues to read as follows:
Authority: 15 U.S.C. 46.
0
15. In Sec. 3.1, revise the last sentence to read as follows:
Sec. 3.1 Scope of the rules in this part; expedition of proceedings.
* * * The Commission, at any time, or the Administrative Law Judge
at any time prior to the filing of his or her recommended decision,
may, with the consent of the parties, shorten any time limit prescribed
by these Rules of Practice.
0
16. In Sec. 3.21, amend paragraph (c)(2), by revising the third
sentence to read as follows:
Sec. 3.21 Prehearing procedures.
* * * * *
(c) * * *
(2) * * * In determining whether to grant the motion, the
Administrative Law Judge shall consider any extensions already granted,
the length of the proceedings to date, the complexity of the issues,
and the need to conclude the evidentiary hearing and render a
recommended decision in a timely manner. * * *
* * * * *
0
17. In Sec. 3.24, revise paragraphs (a)(2), (a)(3), (a)(4), (a)(5),
(b)(1), and (b)(2) to read as follows:
Sec. 3.24 Summary decisions.
(a) * * *
(2) Any other party may, within 14 days after service of the
motion, file opposing affidavits. The opposing party shall include a
separate and concise statement of those material facts as to which the
opposing party contends there exists a genuine issue for trial, as
provided in Sec. 3.24(a)(3). The parties may file memoranda of law in
support of, or in opposition to, the motion consistent with Sec.
3.22(c). If a party includes in any such brief or memorandum
information that has been granted in camera status pursuant to Sec.
3.45(b) or is subject to confidentiality protections pursuant to a
protective order, the party shall file 2 versions of the document in
accordance with the procedures set forth in Sec. 3.45(e). If the
Commission determines that there is no genuine issue as to any material
fact regarding liability or relief, it shall issue a final decision and
order. A summary decision, interlocutory in character and in compliance
with the procedures set forth in Sec. 3.51(c), may be rendered on the
issue of liability alone although there is a genuine issue as to
relief.
(3) Affidavits shall set forth such facts as would be admissible in
evidence and shall show affirmatively that the affiant is competent to
testify to the matters stated therein. The Commission may permit
affidavits to be supplemented or opposed by depositions, answers to
interrogatories, or further affidavits. When a motion for summary
decision is made and supported as provided in this rule, a party
opposing the motion may not rest upon the mere allegations or denials
of his or her pleading; the response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing that there
is a genuine issue of material fact for trial. If no such response is
filed, summary decision, if appropriate, shall be rendered.
(4) Should it appear from the affidavits of a party opposing the
motion that it cannot, for reasons stated, present by affidavit facts
essential to justify its opposition, the Commission may deny the motion
for summary decision or may order a continuance to permit affidavits to
be obtained or depositions to be taken or discovery to be had or make
such other order as is appropriate and a determination to that effect
shall be made a matter of record.
(5) If on motion under this rule a summary decision is not rendered
upon the whole case or for all the relief asked and a trial is
necessary, the Commission shall issue an order specifying the facts
that appear without substantial controversy and directing further
proceedings in the action. The facts so specified shall be deemed
established.
(b) * * *
(1) Should it appear to the satisfaction of the Commission at any
time that any of the affidavits presented pursuant to this rule are
presented in bad faith, or solely for the purpose of delay, or are
patently frivolous, the Commission shall enter a determination to that
effect upon the record.
[[Page 42876]]
(2) If upon consideration of all relevant facts attending the
submission of any affidavit covered by paragraph (b)(1) of this
section, the Commission concludes that action to suspend or remove an
attorney from the case is warranted, it shall take action as specified
in Sec. 3.42(d).
0
18. In Sec. 3.38, amend paragraph (c) by revising the first sentence
to read as follows:
Sec. 3.38 Motion for order compelling disclosure or discovery;
sanctions.
* * * * *
(c) Any such action may be taken by written or oral order issued in
the course of the proceeding or by inclusion in a recommended decision
of the Administrative Law Judge or an order or opinion of the
Commission. * * *
0
19. In Sec. 3.42, revise paragraphs (c)(9) and (e) and the second
sentence of paragraph (g)(2) to read as follows:
Sec. 3.42 Presiding officials.
* * * * *
(c) * * *
(9) To make and file recommended decisions;
* * * * *
(e) Substitution of Administrative Law Judge. In the event of the
substitution of a new Administrative Law Judge for the one originally
designated, any motion predicated upon such substitution shall be made
within 5 days thereafter.
* * * * *
(g) * * *
(2) * * * If the Administrative Law Judge does not disqualify
himself within 10 days, he shall certify the motion to the Commission,
together with any statement he may wish to have considered by the
Commission. * * *
* * * * *
0
20. In Sec. 3.46, revise paragraph (e) to read as follows:
Sec. 3.46 Proposed findings, conclusions, and order.
* * * * *
(e) Rulings. The record shall show the Administrative Law Judge's
recommended ruling on each proposed finding and conclusion, except when
the proposed order disposing of the proceeding otherwise informs the
parties of the action taken.
0
21. Revise Sec. 3.51 to read as follows:
Sec. 3.51 Recommended decision.
(a) When filed, content. (1) Filing of recommended decision. The
Administrative Law Judge shall file a recommended decision within 70
days after the filing of the last filed initial or reply proposed
findings of fact, conclusions of law and order pursuant to Sec. 3.46,
or within 85 days of the closing the hearing record pursuant to Sec.
3.44(c) where the parties have waived the filing of proposed findings.
The Administrative Law Judge may extend any of these time periods by up
to 30 days for good cause. The Commission may further extend any of
these time periods for good cause.
(2) Certification of the record. At the same time the
Administrative Law Judge files the recommended decision, the
Administrative Law Judge will also certify to the Commission the record
of the proceeding. The record must include the Administrative Law
Judge's recommended decision; any transcripts from prehearing
conferences; all hearing transcripts; all rulings; all exhibits; and
the pleadings, motions, briefs, memoranda, and other supporting papers
filed in connection with the proceeding. The Administrative Law Judge
must also furnish to the Commission an index of each exhibit identified
but not received in evidence.
(b) Exhaustion of administrative remedies. A recommended decision
shall not be considered final agency action subject to judicial review
under 5 U.S.C. 704. Any objection to a ruling by the Administrative Law
Judge, or to a finding, conclusion or a provision of the order in the
recommended decision, which is not made a part of any exceptions filed
with the Commission shall be deemed to have been waived.
(c) Content, format for filing. (1) A recommended decision shall be
based on a consideration of the whole record relevant to the issues
decided, and shall be supported by reliable and probative evidence. The
recommended decision shall include a statement of recommended findings
of fact (with specific page references to principal supporting items of
evidence in the record) and recommended conclusions of law, as well as
the reasons or basis therefor, upon all the material issues of fact,
law, or discretion presented on the record (or those designated under
paragraph (c)(2) of this section) and an appropriate proposed rule or
order. Rulings containing information granted in camera status pursuant
to Sec. 3.45 shall be filed in accordance with Sec. 3.45(f).
(2) The recommended decision shall be prepared in a common word
processing format, such as WordPerfect or Microsoft Word, and shall be
filed by the Administrative Law Judge with the Office of the Secretary
in both electronic and paper versions.
(3) When more than one claim for relief is presented in an action,
or when multiple parties are involved, the Administrative Law Judge may
direct the entry of a recommended decision as to one or more but fewer
than all of the claims or parties only upon an express determination
that there is no just reason for delay and upon an express direction
for the entry of recommended decision.
(d) By whom made. The recommended decision shall be made and filed
by the Administrative Law Judge who presided over the hearings, except
when he or she shall have become unavailable to the Commission.
(e) Reopening of proceeding by Administrative Law Judge;
termination of jurisdiction.
(1) At any time from the close of the hearing record pursuant to
Sec. 3.44(c) until the filing of his or her recommended decision, an
Administrative Law Judge may reopen the proceeding for the reception of
further evidence for good cause shown.
(2) Except for the correction of clerical errors or pursuant to an
order of remand from the Commission, the jurisdiction of the
Administrative Law Judge is terminated upon the filing of his or her
recommended decision with respect to those issues decided pursuant to
paragraph (c)(1) of this section.
0
22. In Sec. 3.52, revise the section heading and paragraphs (a), (b),
and (c) to read as follows:
Sec. 3.52 Exceptions to recommended decision.
(a) Timing of Commission review for cases in which the Commission
sought preliminary relief in federal court. (1) For proceedings with
respect to which the Commission has sought preliminary relief in
federal court under 15 U.S.C. 53(b), any party may file exceptions to
the recommended decision or order of the Administrative Law Judge by
filing its opening brief, subject to the requirements in paragraph (c)
of this section, within 20 days of the issuance of the recommended
decision. Any party may respond to any exceptions filed by another
party by filing an answering brief, subject to the requirements of
paragraph (d) of this section, within 20 days of service of the opening
brief. Any party may file a reply to an answering brief, subject to the
requirements of paragraph (e) of this section, within 5 days of service
of the answering brief. Unless the Commission orders that there shall
be no oral argument, it will hold oral argument within 10 days after
the deadline for the filing of any reply briefs. The Commission will
issue its final decision pursuant to Sec. 3.54 within 45 days after
oral argument. If no oral argument is scheduled, the Commission will
issue its final decision pursuant to Sec. 3.54
[[Page 42877]]
within 45 days after the deadline for the filing of any reply briefs.
(2) If no exceptions to the recommended decision are filed, the
Commission may in its discretion hold oral argument within 10 days
after the deadline for the filing of exceptions, and will issue its
final decision pursuant to Sec. 3.54 within 45 days after oral
argument. If no oral argument is scheduled, the Commission will issue
its final decision pursuant to Sec. 3.54 within 45 days after the
deadline for the filing of exceptions.
(b) Timing of Commission review in all other cases. (1) In all
cases other than those subject to paragraph (a) of this section, any
party may file exceptions to the recommended decision of the
Administrative Law Judge by filing its opening brief, subject to the
requirements in paragraph (c) of this section, within 30 days of the
issuance of the recommended decision. Any party may respond to the
opening brief by filing an answering brief, subject to the requirements
of paragraph (d) of this section, within 30 days of service of the
opening brief. Any party may file a reply to an answering brief,
subject to the requirements of paragraph (e) of this section, within 7
days of service of the answering brief. Unless the Commission orders
that there shall be no oral argument, it will hold oral argument within
15 days after the deadline for the filing of any reply briefs. The
Commission will issue its final decision pursuant to Sec. 3.54 within
100 days after oral argument. If no oral argument is scheduled, the
Commission will issue its final decision pursuant to Sec. 3.54 within
100 days after the deadline for the filing of any reply briefs.
(2) If no exceptions to the recommended decision are filed, the
Commission may in its discretion hold oral argument within 30 days
after the deadline for the filing of exceptions, and will issue its
final decision pursuant to Sec. 3.54 within 100 days after oral
argument. If no oral argument is scheduled, the Commission will issue
its final decision pursuant to Sec. 3.54 within 100 days after the
deadline for the filing of exceptions.
(c) Opening brief. (1) The opening brief shall contain, in the
order indicated, the following:
(i) A subject index of the matter in the brief, with page
references, and a table of cases (alphabetically arranged), textbooks,
statutes, and other material cited, with page references thereto;
(ii) A concise statement of the case, which includes a statement of
facts relevant to the issues submitted for review, and a summary of the
argument, which must contain a succinct, clear, and accurate statement
of the arguments made in the body of the brief, and which must not
merely repeat the argument headings;
(iii) A specification of the questions intended to be urged;
(iv) The argument presenting clearly the points of fact and law
relied upon in support of the position taken on each question, with
specific page references to the record and the legal or other material
relied upon; and
(v) A proposed form of order for the Commission's consideration
instead of the order contained in the recommended decision.
* * * * *
0
23. Revise Sec. 3.53 to read as follows:
Sec. 3.53 Review of recommended decision in absence of exceptions.
If no party files exceptions to the recommended decision of the
Administrative Law Judge under Sec. 3.52(a)(1) or Sec. 3.52(b)(1),
the Commission will enter an order placing the case on its own docket
for review. The Commission's order will set forth the scope of such
review and the issues which will be considered and will make provision
for the filing of briefs if deemed appropriate by the Commission.
0
24. Amend Sec. 3.54 by:
0
a. Revising the section heading;
0
b. Revising paragraph (a);
0
c. Removing paragraph (b);
0
d. Redesignating paragraphs (c) and (d) as paragraphs (b) and (c).
The revisions read as follows:
Sec. 3.54 Commission decision after review of recommended decision.
(a) In rendering its decision, the Commission will adopt, modify,
or set aside the recommended findings, recommended conclusions, and
proposed rule or order contained in the recommended decision, and will
include in the decision a statement of the reasons or basis for its
action and any concurring and dissenting opinions.
* * * * *
0
25. The authority for subpart I of Part 3 continues to read as follows:
Authority: 5 U.S.C. 504 and 5 U.S.C. 553(b).
0
26. In Sec. 3.82, revise paragraph (d)(3) to read as follows:
Sec. 3.82 Information required from applicants.
* * * * *
(d) * * *
(3) For purposes of this subpart, final disposition means the later
of--
(i) The date that the Commission issues an order disposing of any
petitions for reconsideration of the Commission's final order in the
proceeding; or
(ii) The date that the Commission issues a final order or any other
final resolution of a proceeding, such as a consent agreement,
settlement or voluntary dismissal, which is not subject to a petition
for reconsideration.
0
27. In Sec. 3.83, revise paragraphs (g) and (h) to read as follows:
Sec. 3.83 Procedures for considering applicants.
* * * * *
(g) Decision. The Administrative Law Judge shall issue a
recommended decision on the application within 30 days after closing
proceedings on the application.
(1) For a decision involving a prevailing party: The decision shall
include written recommended findings and conclusions on the applicant's
eligibility and status as a prevailing party, and an explanation of the
reasons for any difference between the amount requested and the amount
awarded. The decision shall also include, if at issue, recommended
findings on whether the agency's position was substantially justified,
whether the applicant unduly protracted the proceedings, or whether
special circumstances make an award unjust.
(2) For a decision involving an excessive agency demand: The
decision shall include written recommended findings and conclusions on
the applicant's eligibility and an explanation of the reasons why the
agency's demand was or was not determined to be substantially in excess
of the decision of the adjudicative officer and was or was not
unreasonable when compared with that decision. That decision shall be
based upon all the facts and circumstances of the case. The decision
shall also include, if at issue, recommended findings on whether the
applicant has committed a willful violation of law or otherwise acted
in bad faith, or whether special circumstances make an award unjust.
(h) Agency review. Either the applicant or complaint counsel may
seek review of the recommended decision on the fee application by
filing exceptions under Sec. 3.52(a)(1), or the Commission may decide
to review the decision on its own initiative, in accordance with Sec.
3.53. The Commission will issue a final decision on the application or
remand the application to the Administrative Law Judge for further
proceedings.
* * * * *
[[Page 42878]]
PART 4--MISCELLANEOUS RULES
0
28. The authority for Part 4 continues to read as follows:
Authority: 15 U.S.C. 46.
0
29. Amend Sec. 4.11(e)(1) by adding a sentence to the end of the
paragraph to read as follows:
Sec. 4.11 Disclosure requests.
* * * * *
(e) * * *
(1) * * * Where a demand is made for Commission Office of Inspector
General (``OIG'') records or OIG employee testimony, the term
``Inspector General'' will be substituted in this paragraph (e) for the
term ``General Counsel.''
* * * * *
0
30. In Sec. 4.13, revise paragraph (d) to read as follows:
Sec. 4.13 Privacy Act rules.
* * * * *
(d) Times, places, and requirements for identification of
individuals making requests. Verification of identity of persons making
written requests to the deciding official (as designated by the General
Counsel) will be required. The signature on such requests will be
deemed a certification by the signatory that he or she is the
individual to whom the record pertains or is the parent or guardian of
a minor or the legal guardian of the individual to whom the record
pertains. The deciding official (as designated by the General Counsel)
will require additional verification of a requester's identity when
such information is reasonably necessary to assure that records are not
improperly disclosed; provided, however, that no verification of
identity will be required if the records sought are publicly available
under the Freedom of Information Act.
* * * * *
By direction of the Commission.
April J. Tabor,
Secretary.
[FR Doc. 2023-12630 Filed 7-3-23; 8:45 am]
BILLING CODE 6750-01-P
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</html>Indexed from Federal Register on July 5, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.