Federal Register / Vol. 76, No. 162 / Monday, August 22, 2011 / Rules and Regulations 52249 

g. Ice protection system (IPS)—A system 

that protects certain critical aircraft parts 

from ice accretion. To be an approved 

system, it must satisfy the requirements of 

§ 23.1419 or § 25.1419 and other applicable 

requirements. 

h. Primary ice detection system—A 

detection system used to determine when the 

IPS must be activated. This system 

announces the presence of ice accretion or 

icing conditions, and it may also provide 

information to other aircraft systems. A 

primary automatic system automatically 

activates the anti-icing or deicing IPS. A 

primary manual system requires the 

flightcrew to activate the anti-icing or deicing 

IPS upon indication from the primary ice 

detection system. 

i. Reference surface—The observed surface 

used as a reference for the presence of ice on 

the monitored surface. The reference surface 

may be observed directly or indirectly. Ice 

must occur on the reference surface before— 

or at the same time as—it appears on the 

monitored surface. Examples of reference 

surfaces include windshield wiper blades or 

bolts, windshield posts, ice evidence probes, 

the propeller spinner, and the surface of ice 

detectors. The reference surface may also be 

the monitored surface. 

j. Static air temperature—The air 

temperature that would be measured by a 

temperature sensor that is not in motion in 

relation to that air. This temperature is also 

referred to in other documents as ‘‘outside air 

temperature,’’ ‘‘true outside temperature,’’ or 

‘‘ambient temperature.’’ 

k. Total air temperature—The static air 

temperature plus the rise in temperature due 

to the air being brought to rest relative to the 

airplane. 

l. Visual cues—Ice accretion on a reference 

surface that the flightcrew observes. The 

visual cue is used to detect the first sign of 

airframe ice accretion. 

List of Subjects in 14 CFR Part 121 

Aircraft, Air carriers, Aviation safety, 

Safety, Reporting and recordkeeping 

requirements. 

The Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends part 121 of title 14, Code of 

Federal Regulations as follows: 

PART 121—OPERATING 

REQUIREMENTS: DOMESTIC, FLAG, 

AND SUPPLEMENTAL OPERATIONS 

■ 1. The authority citation for part 121 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 40119, 

44101, 44701–44702, 44705, 44709–44711, 

44713, 44716–44717, 44722, 44901, 44903– 

44904, 44912, 46105. 

■ 2. Revise § 121.321 to read as follows: 

§ 121.321 Operations in Icing. 

After October 21, 2013 no person may 

operate an airplane with a certificated 

maximum takeoff weight less than 

60,000 pounds in conditions conducive 

to airframe icing unless it complies with 

this section. As used in this section, the 

phrase ‘‘conditions conducive to 

airframe icing’’ means visible moisture 

at or below a static air temperature of 

5°C or a total air temperature of 10°C, 

unless the approved Airplane Flight 

Manual provides another definition. 

(a) When operating in conditions 

conducive to airframe icing, compliance 

must be shown with paragraph (a)(1), or 

(2), or (3) of this section. 

(1) The airplane must be equipped 

with a certificated primary airframe ice 

detection system. 

(i) The airframe ice protection system 

must be activated automatically, or 

manually by the flightcrew, when the 

primary ice detection system indicates 

activation is necessary. 

(ii) When the airframe ice protection 

system is activated, any other 

procedures in the Airplane Flight 

Manual for operating in icing conditions 

must be initiated. 

(2) Visual cues of the first sign of ice 

formation anywhere on the airplane and 

a certificated advisory airframe ice 

detection system must be provided. 

(i) The airframe ice protection system 

must be activated when any of the 

visual cues are observed or when the 

advisory airframe ice detection system 

indicates activation is necessary; 

whichever occurs first. 

(ii) When the airframe ice protection 

system is activated, any other 

procedures in the Airplane Flight 

Manual for operating in icing conditions 

must be initiated. 

(3) If the airplane is not equipped to 

comply with the provisions of 

paragraph (a)(1) or (2) of this section, 

then the following apply: 

(i) When operating in conditions 

conducive to airframe icing, the 

airframe ice protection system must be 

activated prior to, and operated during, 

the following phases of flight: 

(A) Takeoff climb after second 

segment, 

(B) En route climb, 

(C) Go-around climb, 

(D) Holding, 

(E) Maneuvering for approach and 

landing, and 

(F) Any other operation at approach 

or holding airspeeds. 

(ii) During any other phase of flight, 

the airframe ice protection system must 

be activated and operated at the first 

sign of ice formation anywhere on the 

airplane, unless the Airplane Flight 

Manual specifies that the airframe ice 

protection system should not be used or 

provides other operational instructions. 

(iii) Any additional procedures for 

operation in conditions conducive to 

icing specified in the Airplane Flight 

Manual or in the manual required by 

§ 121.133 must be initiated. 

(b) If the procedures specified in 

paragraph (a)(3)(i) of this section are 

specifically prohibited in the Airplane 

Flight Manual, compliance must be 

shown with the requirements of 

paragraph (a)(1) or (2) of this section. 

(c) Procedures necessary for safe 

operation of the airframe ice protection 

system must be established and 

documented in: 

(1) The Airplane Flight Manual for 

airplanes that comply with 

§ 121.321(a)(1) or (2), or 

(2) The Airplane Flight Manual or in 

the manual required by § 121.133 for 

airplanes that comply with 

§ 121.321(a)(3). 

(d) Procedures for operation of the 

airframe ice protection system must 

include initial activation, operation after 

initial activation, and deactivation. 

Procedures for operation after initial 

activation of the ice protection system 

must address— 

(1) Continuous operation, 

(2) Automatic cycling, 

(3) Manual cycling if the airplane is 

equipped with an ice detection system 

that alerts the flightcrew each time the 

ice protection system must be cycled, or 

(4) Manual cycling based on a time 

interval if the airplane type is not 

equipped with features necessary to 

implement (d)(i)–(iii) of this section. 

(e) System installations used to 

comply with § 121.321(a)(1) or (2) must 

be approved through an amended or 

supplemental type certificate in 

accordance with part 21 of this chapter. 

Issued in Washington, DC, on August 11, 

2011. 

J. Randolph Babbitt, 

Administrator. 

[FR Doc. 2011–21247 Filed 8–19–11; 8:45 am] 

BILLING CODE 4910–13–P 

FEDERAL TRADE COMMISSION 

16 CFR Parts 3 and 4 

Rules of Practice 

AGENCY: Federal Trade Commission 

(‘‘Commission’’ or ‘‘FTC’’). 

ACTION: Final rule amendments. 

SUMMARY: The FTC is amending its 

Rules of Practice for its adjudicative 

process, including those regarding the 

initiation of discovery, limitations on 

discovery, the Standard Protective 

Order, the admission of certain hearsay 

evidence, the video recording of 

proceedings, the designation of 

confidentiality on documents, the 

timing for oral argument on appeal, and 

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52250 Federal Register / Vol. 76, No. 162 / Monday, August 22, 2011 / Rules and Regulations 

1 74 FR 20205 (2009). 

2The final rule amendments are not subject to the 

requirements of the Regulatory Flexibility Act, 5 

U.S.C. 601(2), 604(a). The rule revisions to part 3 

are also not subject to the requirements of the 

Paperwork Reduction Act, which contains an 

exemption for information collected during the 

conduct of administrative proceedings or 

investigations. 44 U.S.C. 3518(c)(1)(B)(ii); 5 CFR 

1320.4. To the extent that Rule 4.2 applies to filings 

that do not fall within this exception, the Office of 

Management and Budget has approved the 

collection of information, along with other 

applications and notices to the Commission, and 

has assigned control number 3084–0047. The 

revisions to Rule 4.2 do not substantially or 

materially modify this collection of information. 

a reference to the Equal Access to 

Justice Act. 

DATES: These amendments are effective 

on August 22, 2011, and will govern all 

Commission adjudicatory proceedings 

that are commenced after that date. 

They will also govern all Commission 

adjudicatory proceedings that are 

pending on August 22, 2011, except to 

the extent that, in the opinion of the 

Commission, their application to a 

particular proceeding would not be 

feasible or would work an injustice. 

FOR FURTHER INFORMATION CONTACT: 

Robert B. Mahini, Attorney, (202) 326– 

2642, Office of the General Counsel, 

Federal Trade Commission, 600 

Pennsylvania Avenue, NW., Washington 

DC 20580. 

SUPPLEMENTARY INFORMATION: On May 1, 

2009, the Commission implemented 

changes to Parts 3 and 4 of the agency’s 

Rules of Practice.1 After further review 

of these changes and other aspects of 

Parts 3 and 4, the Commission is making 

new changes to the Rules of Practice, 

which are discussed below. The 

immediate implementation of this rule 

without prior notice and the 

opportunity for public comment is 

appropriate because this rule is one of 

agency procedure and practice and 

therefore is exempt from notice and 

comment rulemaking requirements and 

from the 30-day publication 

requirement under the Administrative 

Procedure Act, 5 U.S.C. 553(b)(A)–(B) & 

(d).2

Section 3.31: General Discovery 

Provisions. 

The Commission is amending Section 

3.31(a) to clarify that discovery 

demands cannot commence before the 

procedure set forth in Section 3.21(c). 

Under Section 3.21(c), the 

Administrative Law Judge, 

[n]ot later than 2 days after the scheduling 

conference, [must] 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 on the date set by the 

Commission, including a plan of discovery 

that addresses the deposition of fact 

witnesses, timing of expert discovery, and 

the production of documents and 

electronically stored information, dates for 

the submission and hearing of motions, the 

specific method by which exhibits shall be 

numbered or otherwise identified and 

marked for the record, and the time and place 

of a final prehearing conference. 

To make clear that discovery shall not 

commence before the issuance of the 

prehearing scheduling order’s plan of 

discovery absent an express agreement 

of the parties, the Commission is adding 

language to Section 3.31(a) stating that, 

not including the mandatory initial 

disclosures required under paragraph 

(b) of the same Section, discovery 

demands shall not commence before the 

issuance of the prehearing scheduling 

order, unless the parties expressly agree 

otherwise. 

In addition, the Commission is 

amending Section 3.31(c) to make clear 

that the section’s rules regarding the 

scope of discovery apply to all 

discovery under Part 3 of the Rules of 

Practice. The Commission also is 

amending language in this paragraph to 

make clear that the section’s overall 

limitations on discovery in paragraph 

(c)(2) and the restriction on discovery of 

electronically stored information in 

paragraph (c)(3) apply to discovery 

aimed at third parties, in addition to the 

parties to the proceeding. 

Section 3.31 App. A: Standard 

Protective Order. 

The Commission is amending the 

Standard Protective Order at Section 

3.31 App. A to make the following 

changes: 

(1) Add the missing word 

‘‘information’’ to the first sentence of 

the first paragraph; 

(2) more clearly define in the second 

paragraph the scope of the 

confidentiality afforded to materials 

submitted by respondents or third 

parties during an investigation or 

administrative proceeding by referring, 

in addition to confidentiality 

protections provided by the Federal 

Trade Commission Act, to protections 

provided by ‘‘any other federal statute 

or regulation’’ and ‘‘any federal court or 

Commission precedent interpreting 

such statute or regulation’’ rather than 

referring to ‘‘any regulation, 

interpretation, or precedent concerning 

documents in the possession of the 

Commission’’; 

(3) more clearly state in the second 

paragraph that the Order’s 

confidentiality protection extends to 

any information that ‘‘discloses the 

substance of the contents of any 

confidential materials derived from a 

document subject to this Order’’ given 

that ‘‘confidential materials’’ is defined 

in the Order’s first paragraph, replacing 

the current description of protection for 

‘‘information taken from any portion of 

such document[s]’’; 

(4) add to the fifth paragraph a 

missing reference to ‘‘Paragraph 1’’; and 

(5) clarify and make consistent 

language in the sixth paragraph 

regarding documents with ‘‘masked or 

otherwise redacted copies of documents 

[that] may be produced’’ by replacing 

‘‘deleted’’ where used with ‘‘masked or 

redacted.’’ 

Section 3.31A: Expert Discovery 

The Commission is adding a new 

paragraph (e) to Section 3.31A regarding 

materials that the parties cannot 

discover. This new paragraph includes 

language from what was the last 

sentence of paragraph (d), which will 

now state that ‘‘[a] party may not 

discover facts known or opinions held 

by an expert who has been retained or 

specifically employed by another party 

in anticipation of litigation or 

preparation for hearing and who is not 

listed as a witness for the evidentiary 

hearing,’’ and new language that is 

nearly identical to language recently 

added to Federal Rule of Civil 

Procedure 26(b)(4)(B) and (C), which 

specifically prohibits discovery of 

expert report drafts and, with some 

exceptions, communications between a 

party’s attorney and its experts. Adding 

to the limitation of what was the last 

sentence of paragraph (d), the new 

language taken largely from the Federal 

Rules specifically provides that parties 

may not discover drafts of any report 

required by Section 3.31A, regardless of 

the form in which the draft is recorded. 

In addition, the new language prohibits 

parties from discovering any 

communications, regardless of form, 

between another party’s attorney and 

any of its testifying expert witnesses, 

unless the communication: (1) Relates to 

the expert’s compensation for the study 

or testimony; (2) identifies facts or data 

provided by the party’s attorney and 

considered by the expert in forming the 

opinions to be expressed; or (3) 

identifies assumptions provided by the 

party’s attorney and relied on by the 

expert in forming the opinions to be 

expressed. 

In addition, the Commission is adding 

a new paragraph (f) to Section 3.31A 

that allows the Administrative Law 

Judge, upon a finding of good cause, to 

alter the pre-hearing schedule for expert 

discovery set forth in Section 3.31A, but 

only if such an alteration would not 

affect the date of the evidentiary hearing 

noticed in the complaint. This change 

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Federal Register / Vol. 76, No. 162 / Monday, August 22, 2011 / Rules and Regulations 52251 

3See 16 CFR 2.8. 

4 74 FR 1817. 

allows the Administrative Law Judge to 

extend the expert discovery time line if 

needed, including where the parties 

mutually seek such an alteration, but 

would not change the overall time line 

for the administrative adjudication 

itself. 

Section 3.43: Evidence 

The Commission is changing Section 

3.43(b) to specifically include expert 

reports as admissible hearsay evidence. 

In addition, the Commission is adding 

a new requirement to this paragraph 

regarding the admission of ‘‘prior 

testimony (including expert reports) 

from other proceedings where either the 

Commission or respondent did not 

participate,’’ though this requirement 

would not apply to ‘‘other proceedings 

where the Commission and at least one 

respondent did participate.’’ Such prior 

testimony could often be voluminous, 

and in recent enforcement actions such 

evidence was admitted that resulted in 

the inclusion of excessive, unhelpful 

materials in the record that burdened 

the non-admitting party. As a result, for 

such material, unless the parties consent 

to its admission, the Administrative 

Law Judge must first make a finding 

upon the motion of the party seeking the 

admission of such evidence that the 

prior testimony would not be 

duplicative, would not present 

unnecessary hardship to a party or delay 

to the proceedings, and would aid in the 

determination of the matter. However, 

this requirement for ‘‘prior testimony 

* * * from other proceedings’’ does not 

include the Commission staff’s 

investigational hearings involving 

respondent, which shall be admitted 

without being subject to this new 

limitation.3

Section 3.44: Record 

The Commission is amending the 

general requirement that ‘‘[t]he live oral 

testimony of each witness * * * be 

video recorded digitally.’’ The 

Commission had added this 

requirement in its 2009 amendments to 

the Part 3 Rules ‘‘to enable the 

Commission, which is tasked with 

reviewing the record de novo, to 

independently assess witness demeanor 

when necessary.’’ 4 However, recent 

experience and cost estimates have 

revealed that this video requirement is 

expensive, and the Commission has 

determined that the benefits of digital 

video recordings to its assessment of 

witness testimony do not outweigh 

these considerable costs. 

Thus, the amendment allows for 

video recording of all witness testimony 

only by direction of the Administrative 

Law Judge upon a motion by a party. If 

the Administrative Law Judge issues an 

order finding good cause to permit 

video recording of all witness 

testimony, the moving party shall bear 

the costs for such recording. The rule 

contemplates that the reporter officially 

designated by the Commission to 

transcribe the proceeding shall also 

provide the video recording services, in 

order to minimize delay or disruption 

and ensure reliability. Where the 

moving party is not complaint counsel, 

the moving party shall independently 

contract with and reimburse the reporter 

directly for such additional recording 

services. The moving party may retain 

some other person or entity to make the 

recordings, such as when the designated 

reporter is unwilling or unable to 

perform these additional services, only 

where the Administrative Law Judge 

issues an order setting forth good cause 

for such substitution and prescribing 

standards and procedures to ensure that 

the video recording will serve as a 

complete and accurate record of the oral 

testimony being recorded. The 

Commission’s contract with its reporter 

sets forth rates for obtaining copies of 

video recordings from the reporter. 

When the moving party is other than 

complaint counsel, that party must 

ensure that its contract with the reporter 

for video recording services requires 

that copies of such recordings be made 

available at no more than the maximum 

rates under the FTC’s own contract, 

unless the Administrative Law Judge 

has authorized a person or entity other 

than the Commission’s reporter to make 

the video recordings. In the case of such 

an authorization by the Administrative 

Law Judge, the maximum rates for 

copies shall be either the maximum 

rates that the Commission’s reporter is 

authorized to charge for such copies 

under its Commission contract or the 

actual cost of duplication, whichever is 

higher. 

Section 3.45: In Camera Orders and 

Section 4.2: Requirements as to Form, 

and Filing of Documents Other Than 

Correspondence 

The Commission is amending the 

language in Sections 3.45 and 4.2 that 

requires parties to identify the 

confidential or public nature of a 

document filed with the Commission on 

the document’s first page. The new 

language requires parties to provide this 

designation on every page of the 

document to avoid the inadvertent 

release of individual pages of 

confidential documents. 

Section 3.52: Appeal From Initial 

Decision 

The Commission is amending 

language in Sections 3.52(a)(1), (a)(2) 

and (b)(2) that provides a deadline for 

holding oral argument. In these 

paragraphs, the rule requires the 

Commission to ‘‘schedule oral 

argument’’ within a prescribed amount 

of days after the deadline for reply briefs 

or objections to the initial decision, 

depending on which paragraph applies. 

To clarify that these sentences require 

oral arguments to be held, and not 

merely scheduled for some later date, 

within the prescribed amount of days, 

the Commission is replacing ‘‘schedule’’ 

with ‘‘hold’’ in these sentences. 

In addition, the Commission is 

amending the beginning of these 

sentences, which had set aside the 

deadlines for oral argument where ‘‘the 

Commission determines there shall be 

no oral argument.’’ Because the 

paragraph permits the Commission to 

‘‘order’’ that no oral argument be held, 

the sentence now uses ‘‘orders’’ in place 

of ‘‘determines’’ to make these sentences 

more consistent with the previous 

language. 

Section 3.83: Procedures for 

Considering Applications 

The Commission is correcting the 

citation to the Equal Access to Justice 

Act in Section 3.83(i). That Section 

provided that ‘‘[j]udicial review of final 

Commission decisions on awards may 

be sought as provided in 5 U.S.C. 

503(c)(2).’’ The paragraph now correctly 

cites to 5 U.S.C. 504(c)(2). 

List of Subjects in 16 CFR Parts 3 

and 4 

Administrative practice and 

procedure. 

For the reasons set forth in the 

preamble, the Federal Trade 

Commission amends Title 16, Chapter 1, 

Subchapter A of the Code of Federal 

Regulations, parts 3 and 4, as follows: 

PART 3—RULES OF PRACTICE FOR 

ADJUDICATIVE PROCEEDINGS 

■ 1. The authority citation for part 3 

continues to read as follows: 

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

noted. 

■ 2. Amend § 3.31, by adding a new 

sentence at the end of paragraph (a) and 

revising the introductory text of 

paragraph (c) and paragraphs (c)(2)(i), 

(c)(2)(iii), and the first two sentences of 

paragraph (c)(3) to read as follows: 

§ 3.31 General discovery provisions. 

(a) * * * Unless all parties expressly 

agree otherwise, no discovery shall take 

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52252 Federal Register / Vol. 76, No. 162 / Monday, August 22, 2011 / Rules and Regulations 

place before the issuance of a prehearing 

scheduling order under § 3.21(c), except 

for the mandatory initial disclosures 

required by paragraph (b) of this section. 

* * * * * 

(c) Scope of discovery. Unless 

otherwise limited by order of the 

Administrative Law Judge or the 

Commission in accordance with these 

rules, the scope of discovery under all 

the rules in this part is as follows: 

* * * * * 

(2) * * * 

(i) The discovery sought from a party 

or third party is unreasonably 

cumulative or duplicative, or is 

obtainable from some other source that 

is more convenient, less burdensome, or 

less expensive; 

* * * * * 

(iii) The burden and expense of the 

proposed discovery on a party or third 

party outweigh its likely benefit. 

(3) Electronically stored information. 

A party or third party need not provide 

discovery of electronically stored 

information from sources that the party 

or third party identifies as not 

reasonably accessible because of undue 

burden or cost. On a motion to compel 

discovery, the party or third party from 

whom discovery is sought must show 

that the information is not reasonably 

accessible because of undue burden or 

cost. * * * 

* * * * * 

■ 3. In Appendix A to § 3.31 revise the 

first sentence of paragraph 1, the first 

sentence of paragraph 2, paragraph 5, 

and the last sentence of paragraph 6 to 

read as follows: 

Appendix A to § 3.31: Standard 

Protective Order 

* * * * * 

1. As used in this Order, ‘‘confidential 

material’’ shall refer to any document or 

portion thereof that contains privileged 

information, competitively sensitive 

information, or sensitive personal 

information. * * * 

2. Any document or portion thereof 

submitted by a respondent or a third party 

during a Federal Trade Commission 

investigation or during the course of this 

proceeding that is entitled to confidentiality 

under the Federal Trade Commission Act, or 

any other federal statute or regulation, or 

under any federal court or Commission 

precedent interpreting such statute or 

regulation, as well as any information that 

discloses the substance of the contents of any 

confidential materials derived from a 

document subject to this Order, shall be 

treated as confidential material for purposes 

of this Order. * * * 

* * * * * 

5. A designation of confidentiality shall 

constitute a representation in good faith and 

after careful determination that the material 

is not reasonably believed to be already in 

the public domain and that counsel believes 

the material so designated constitutes 

confidential material as defined in Paragraph 

1 of this Order. 

6. * * * Masked or otherwise redacted 

copies of documents may be produced where 

the portions masked or redacted contain 

privileged matter, provided that the copy 

produced shall indicate at the appropriate 

point that portions have been masked or 

redacted and the reasons therefor. 

* * * * * 

■ 4. Amend § 3.31A, by revising 

paragraph (d) and adding paragraphs (e) 

and (f) to read as follows: 

§ 3.31A Expert discovery. 

* * * * * 

(d) A party may depose any person 

who has been identified as an expert 

whose opinions may be presented at 

trial. Unless otherwise ordered by the 

Administrative Law Judge, a deposition 

of any expert witness shall be 

conducted after the disclosure of a 

report prepared by the witness in 

accordance with paragraph (a) of this 

section. Depositions of expert witnesses 

shall be completed not later than 65 

days after the close of fact discovery. 

Upon motion, the Administrative Law 

Judge may order further discovery by 

other means, subject to such restrictions 

as to scope as the Administrative Law 

Judge may deem appropriate. 

(e) A party may not discover facts 

known or opinions held by an expert 

who has been retained or specifically 

employed by another party in 

anticipation of litigation or preparation 

for hearing and who is not listed as a 

witness for the evidentiary hearing. A 

party may not discover drafts of any 

report required by this section, 

regardless of the form in which the draft 

is recorded, or any communications 

between another party’s attorney and 

any of that other party’s testifying 

experts, regardless of the form of the 

communications, except to the extent 

that the communications: 

(1) Relate to compensation for the 

expert’s study or testimony; 

(2) Identify facts or data that the other 

party’s attorney provided and that the 

expert considered in forming the 

opinions to be expressed; or 

(3) Identify assumptions that the other 

party’s attorney provided and that the 

expert relied on in forming the opinions 

to be expressed. 

(f) The Administrative Law Judge 

may, upon a finding of good cause, alter 

the pre-hearing schedule set forth in this 

section; provided, however, that no 

such alteration shall affect the date of 

the evidentiary hearing noticed in the 

complaint. 

■ 5. Amend § 3.43 by removing the sixth 

sentence of paragraph (b) and adding, in 

its place, two sentences, to read as 

follows: 

§ 3.43 Evidence. 

* * * * * 

(b) * * * If otherwise meeting the 

standards for admissibility described in 

this paragraph, depositions, 

investigational hearings, prior testimony 

in Commission or other proceedings, 

expert reports, and any other form of 

hearsay, shall be admissible and shall 

not be excluded solely on the ground 

that they are or contain hearsay. 

However, absent the consent of the 

parties, before admitting prior testimony 

(including expert reports) from other 

proceedings where either the 

Commission or respondent did not 

participate, except for other proceedings 

where the Commission and at least one 

respondent did participate, the 

Administrative Law Judge must make a 

finding upon the motion of a party 

seeking the admission of such evidence 

that the prior testimony would not be 

duplicative, would not present 

unnecessary hardship to a party or delay 

to the proceedings, and would aid in the 

determination of the matter. * * * 

* * * * * 

■ 6. Amend § 3.44, by removing the last 

two sentences of paragraph (a) and 

adding, in their place, five sentences, to 

read as follows: 

§ 3.44 Record. 

(a) * * * Upon a motion by any party, 

for good cause shown the 

Administrative Law Judge may order 

that the live oral testimony of all 

witnesses be video recorded digitally, at 

the expense of the moving party, and in 

such cases the video recording and the 

written transcript of the testimony shall 

be made part of the record. If a video 

recording is so ordered, the moving 

party shall not pay or retain any person 

or entity to perform such recording 

other than the reporter designated by 

the Commission to transcribe the 

proceeding, except by order of the 

Administrative Law Judge upon a 

finding of good cause. In any order 

allowing for video recording by a person 

or entity other than the Commission’s 

designated reporter, the Administrative 

Law Judge shall prescribe standards and 

procedures for the video recording to 

ensure that it is a complete and accurate 

record of the witnesses’ testimony. 

Copies of the written transcript and 

video recording are available from the 

reporter at rates not to exceed the 

maximum rates fixed by contract 

between the Commission and the 

reporter. Copies of a video recording 

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Federal Register / Vol. 76, No. 162 / Monday, August 22, 2011 / Rules and Regulations 52253 

1Revisions to Forms, Statements, and Reporting 

Requirements for Natural Gas Pipelines, Order No. 

710–B, 76 FR 4516 (Jan. 26, 2011), 134 FERC 

¶ 61,033 (2011) (Order No. 710–B or Final Rule). 

made by a person or entity other than 

the reporter shall be available at the 

same rates, or no more than the actual 

cost of duplication, whichever is higher. 

* * * * * 

■ 7. Amend § 3.45, by revising the 

second and seventh full sentences of 

paragraph (e) and the second and third 

full sentences of paragraph (f) to read as 

follows: 

§ 3.45 In camera orders. 

* * * * * 

(e) * * * A complete version shall be 

marked ‘‘In Camera’’ or ‘‘Subject to 

Protective Order,’’ as appropriate, on 

every page and shall be filed with the 

Secretary and served by the party on the 

other parties in accordance with the 

rules in this part. * * * An expurgated 

version of the document, marked 

‘‘Public Record’’ on every page and 

omitting the in camera and confidential 

information and attachment that appear 

in the complete version, shall be filed 

with the Secretary within 5 days after 

the filing of the complete version, 

unless the Administrative Law Judge or 

the Commission directs otherwise, and 

shall be served by the party on the other 

parties in accordance with the rules in 

this part. * * * 

(f) * * * A complete version shall be 

marked ‘‘In Camera’’ or ‘‘Subject to 

Protective Order,’’ as appropriate, on 

every page and shall be served upon the 

parties. The complete version will be 

placed in the in camera record of the 

proceeding. An expurgated version, to 

be filed within 5 days after the filing of 

the complete version, shall omit the in 

camera and confidential information 

that appears in the complete version, 

shall be marked ‘‘Public Record’’ on 

every page, shall be served upon the 

parties, and shall be included in the 

public record of the proceeding.*** 

* * * * * 

■ 8. Amend § 3.52, by revising the 

fourth sentence of paragraph (a)(1), the 

first sentence of paragraph (a)(2), and 

the fourth sentence of paragraph (b)(2) 

to read as follows: 

§ 3.52 Appeal from initial decision. 

(a) * * * 

(1) * * * 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. * * * 

(2) If no objections to the initial 

decision are filed, the Commission may 

in its discretion hold oral argument 

within 10 days after the deadline for the 

filing of objection, * * * 

(b) * * * 

(2) * * * 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. * * * 

* * * * * 

■ 9. Amend § 3.83, by revising 

paragraph (i) to read as follows: 

§ 3.83 Procedures for considering 

applicants. 

* * * * * 

(i) Judicial review. Judicial review of 

final Commission decisions on awards 

may be sought as provided in 5 U.S.C. 

504(c)(2). 

* * * * * 

PART 4—MISCELLANEOUS RULES 

■ 1. The authority for part 4 remains: 

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

noted. 

■ 2. Amend § 4.2(b), by revising the last 

sentence, to read as follows: 

§ 4.2 Requirements as to form, and filing 

of documents other than correspondence. 

* * * * * 

(b) * * * Every page of each such 

document shall be clearly and 

accurately labeled ‘‘Public’’, ‘‘In 

Camera’’ or ‘‘Confidential’’. 

* * * * * 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2011–21019 Filed 8–19–11; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 260 

[Docket No. RM07–9–004; Order No. 710– 

C] 

Revisions to Forms, Statements, and 

Reporting Requirements for Natural 

Gas Pipelines 

AGENCY: Federal Energy Regulatory 

Commission, DOE. 

ACTION: Order on Rehearing. 

SUMMARY: In this Order, the Federal 

Energy Regulatory Commission 

(Commission) generally denies 

rehearing and reaffirms the findings 

made in Order No. 710–B. The 

Commission does, however, revise the 

burden estimate to more accurately 

account for initial start-up costs, grant 

rehearing on the issue of whether to 

include page 521d, and grant additional 

time to comply with Order No. 710–B. 

FOR FURTHER INFORMATION CONTACT: 

Brian Holmes (Technical Information), 

Office of Enforcement, Federal Energy 

Regulatory Commission, 888 First 

Street, NE., Washington, DC 20426. 

Telephone: (202) 502–6008, e-mail: 

brian.holmes@ferc.gov. 

Robert Sheldon (Technical Information), 

Office of Energy Market Regulation, 

Federal Energy Regulatory 

Commission, 888 First Street, NE., 

Washington, DC 20426. Telephone: 

(202) 502–8672, e-mail: robert.

sheldon@ferc.gov. 

Gary D. Cohen (Legal Information), 

Office of the General Counsel, Federal 

Energy Regulatory Commission, 888 

First Street, NE., Washington, DC 

20426. Telephone: (202) 502–8321, email: gary.cohen@ferc.gov. 

SUPPLEMENTARY INFORMATION: 

Before Commissioners: Jon Wellinghoff, 

Chairman; Marc Spitzer, Philip D. 

Moeller, John R. Norris, and Cheryl A. 

LaFleur. 

Order on Rehearing 

Issued August 16, 2011 

1. Earlier in this proceeding, the 

Commission issued a Final Rule (Order 

No. 710–B) revising its financial forms, 

statements, and reports for natural gas 

companies, contained in FERC Form 

Nos. 2, 2–A, and 3–Q, to provide greater 

transparency on fuel data by requiring 

the reporting of functionalized fuel data 

on pages 521a through 521c of those 

forms, and to include on those forms the 

amount of fuel waived, discounted or 

reduced as part of a negotiated rate 

agreement.1

2. In response to the Final Rule, the 

Interstate Natural Gas Association of 

America (INGAA) filed a request for 

rehearing raising eleven separate 

objections to the Final Rule. In this 

order on rehearing, we generally deny 

rehearing and reaffirm the findings we 

made in Order No. 710–B. We do, 

however, revise the burden estimate to 

more accurately account for initial startup costs, grant rehearing on the issue of 

whether to include page 521d and we 

grant filers additional time before they 

must begin filing Form Nos. 2, 2–A, and 

3–Q in accordance with the 

requirements established in Order No. 

710–B and this rehearing order. 

I. Background 

3. This matter began in 2008, when 

the Commission issued a Final Rule 

(Order No. 710) revising its financial 

forms, statements, and reports for 

natural gas companies, contained in 

mstockstill on DSK4VPTVN1PROD with RULES