45338 Federal Register / Vol. 76, No. 145 / Thursday, July 28, 2011 / Rules and Regulations 

1The Act is Title X of the Dodd-Frank Wall Street 

Reform and Consumer Protection Act, as amended, 

Public Law 111–203 (July 21, 2010), Title X, 12 

U.S.C. 5481 et seq. Section 1066 of the Act grants 

the Secretary of the Treasury interim authority to 

perform certain functions of the CFPB. Pursuant to 

that authority, Treasury publishes these Rules on 

behalf of the CFPB. 

2For ease of reference, citations to the Uniform 

Rules herein are to the Uniform Rules as adopted 

by the Office of the Comptroller of the Currency, 

which are codified at 12 CFR part 19. 

BUREAU OF CONSUMER FINANCIAL 

PROTECTION 

12 CFR Part 1081 

[Docket No. CFPB–2011–0006] 

RIN 3170–AA05 

Rules of Practice for Adjudication 

Proceedings 

AGENCY: Bureau of Consumer Financial 

Protection. 

ACTION: Interim final rule with request 

for public comment. 

SUMMARY: Section 1053(e) of the 

Consumer Financial Protection Act of 

2010 requires the Bureau of Consumer 

Financial Protection (‘‘CFPB’’ or 

‘‘Bureau’’) to prescribe rules 

establishing procedures for the conduct 

of adjudication proceedings conducted 

pursuant to section 1053. This interim 

final rule with a request for public 

comment sets forth those rules. 

DATES: This interim final rule is 

effective on July 28, 2011. Written 

comments must be received on or before 

September 26, 2011. 

ADDRESSES: You may submit comments, 

identified by Docket No. CFPB–2011– 

0006, by any of the following methods: 

• Electronic: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail or Hand Delivery/Courier in 

Lieu of Mail: Monica Jackson, Office of 

the Executive Secretary, Consumer 

Financial Protection Bureau, 1801 L 

Street, NW., Washington, DC 20036. 

All submissions must include the 

agency name and docket number or 

Regulatory Information Number (RIN) 

for this rulemaking. In general, all 

comments received will be posted 

without change to http:// 

www.regulations.gov. In addition, 

comments will be available for public 

inspection and copying at 1801 L Street, 

NW., Washington, DC 20036, on official 

business days between the hours of 

10 a.m. and 5 p.m. Eastern Time. You 

can make an appointment to inspect the 

documents by telephoning (202) 435– 

7275. 

All comments, including attachments 

and other supporting materials, will 

become part of the public record and 

subject to public disclosure. Sensitive 

personal information, such as account 

numbers or social security numbers, 

should not be included. Comments will 

not be edited to remove any identifying 

or contact information. 

FOR FURTHER INFORMATION CONTACT: 

Monica Jackson, Office of the Executive 

Secretary, Consumer Financial 

Protection Bureau, 1801 L Street, NW., 

Washington, DC 20036, (202) 435–7275. 

SUPPLEMENTARY INFORMATION:

The Bureau herein promulgates its 

Rules of Practice Governing 

Adjudication Proceedings (‘‘Rules’’), 

pursuant to section 1053(e) of the 

Consumer Financial Protection Act of 

2010 (‘‘Act’’),1 12 U.S.C. 5563(e). The 

Rules are promulgated as interim final 

rules with a request for comment. The 

Bureau invites interested members of 

the public to submit written comments 

addressing the issues raised herein. 

A. Background 

The Rules will govern proceedings 

brought under section 1053 of the Act, 

12 U.S.C. 5563, which authorizes the 

Bureau to use administrative 

adjudications to ensure or enforce 

compliance with (a) the provisions of 

the Act, (b) the rules prescribed by the 

Bureau under the Act, and (c) any other 

Federal law or regulation that the 

Bureau is authorized to enforce. The 

Rules do not apply to the issuance of 

temporary cease-and-desist proceedings 

pursuant to section 1053(c) of the Act, 

but the Bureau invites comments as to 

whether special rules governing such 

proceedings are necessary and, if so, 

what they should provide. The Rules are 

modeled on the uniform rules and 

procedures for administrative hearings 

(‘‘Uniform Rules’’) adopted by the 

prudential regulators pursuant to 

section 916 of the Financial Institutions 

Reform, Recovery, and Enforcement Act 

of 1989 (‘‘FIRREA’’), 56 FR 38024 (Aug. 

9, 1991); 2 the Federal Trade 

Commission’s (‘‘FTC’’) Rules of Practice 

for Adjudicative Proceedings (‘‘FTC 

Rules’’), 16 CFR part 3; and the Security 

and Exchange Commission’s (‘‘SEC’’) 

Rules of Practice (‘‘SEC Rules’’), 17 CFR 

part 201. The Bureau has also looked to 

the Model Adjudication Rules prepared 

by the Administrative Conference of the 

United States. See Michael P. Cox, The 

Model Adjudication Rules (MARs), 11 

T.M. Cooley L. Rev. 75 (1994). 

In drafting these Rules, the Bureau 

endeavored to create a process that 

simultaneously provides for expeditious 

resolution of claims and ensures that 

parties who appear before the Bureau 

receive a fair hearing. Notably, in the 

last several decades, both the SEC and 

the FTC revised their rules of practice 

relating to administrative proceedings to 

make the adjudicatory process more 

efficient. In 1990, the SEC created a task 

force ‘‘to review the rules and 

procedures relating to [SEC] 

administrative proceedings, to identify 

sources of delay in those proceedings 

and to recommend steps to make the 

adjudicatory process more efficient and 

effective.’’ 60 FR 32738, 32738 (June 23, 

1995). The result was a comprehensive 

revision of the SEC Rules in 1995. See 

id. Similarly, when the FTC proposed 

revisions to its Rules of Practice for 

Adjudicative Proceedings in 2008, the 

FTC’s Notice of Proposed Rulemaking 

stated: ‘‘In particular, the [FTC’s] Part 3 

adjudicatory process has long been 

criticized as being too protracted * * * 

The [FTC] believes that these 

comprehensive proposed rule revisions 

would strike an appropriate balance 

between the need for fair process and 

quality decision-making, the desire for 

efficient and speedy resolution of 

matters, and the potential costs imposed 

on the Commission and the parties.’’ 73 

FR 58831, 58832–33 (Oct. 7, 2008). The 

Rules adopted herein are animated by 

the experiences of these agencies. 

Drawing from best practices of existing 

agency adjudication processes, these 

Rules look to learn from and improve 

upon other agencies’ efforts to 

streamline their processes while 

protecting parties’ rights to fair and 

impartial proceedings. The following 

discussion outlines some significant 

aspects of the Rules. 

The Rules adopt a decision-making 

procedure that incorporates elements of 

the SEC Rules, FTC Rules, and Uniform 

Rules. The Rules implement a 

procedure, like that of the Uniform 

Rules, whereby a hearing officer will 

issue a recommended decision in each 

administrative adjudication. Like the 

FTC Rules, the Bureau’s Rules provide 

any party the right to contest the 

recommended decision by filing a 

notice of appeal to the Director and 

perfecting the appeal by later filing an 

opening brief. In the event a party fails 

to timely file or perfect an appeal, the 

Director may either adopt the 

recommended decision as the Bureau’s 

final decision or order further briefing 

with respect to any findings of fact or 

conclusions of law contained in the 

recommended decision. The Bureau 

believes this approach best balances the 

need for expeditious decision-making 

with protecting the parties’ rights to 

ultimate consideration of a matter by the 

Director. 

In keeping with this approach, the 

Rules also provide that the hearing 


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officer will decide dispositive motions 

in the first instance, subject to the same 

right of review provided for 

recommended decisions in the event 

that the ruling upon such a motion 

disposes of the case. The Bureau has 

adopted this model because it provides 

for the most expeditious resolution of 

matters while preserving all parties’ 

rights to review by the Director. 

The Rules set deadlines for both the 

recommended decision of the hearing 

officer and the final decision of the 

Director. The Bureau has adopted an 

approach, similar to that used by the 

SEC, wherein the hearing officer is 

permitted a specified period of time— 

300 days, beginning with service of the 

notice of charges—to issue a 

recommended decision. The Rules also 

require the hearing officer to convene a 

scheduling conference soon after the 

respondent files its answer to craft a 

schedule appropriate to the particular 

proceeding. This construct gives the 

hearing officer considerable discretion 

in conducting proceedings and the 

flexibility to respond to the nuances of 

individual matters while ensuring that 

each case concludes within a fixed 

number of days. The Rules do permit 

hearing officers to request an extension 

of the 300-day deadline, but the 

Bureau’s intent is that such extensions 

will be requested of and granted by the 

Director only in rare circumstances. 

The Rules for the timing of the 

Director’s decision on appeal or review 

are guided by the language of section 

1053 of the Act, 12 U.S.C. 5563. If a 

recommended decision is appealed to 

the Director, or the Director orders 

additional briefing regarding the 

recommended decision, the Rules 

provide that the Director must notify the 

parties that the case has been submitted 

for final Bureau decision at the 

expiration of the time permitted for 

filing reply briefs with the Director. The 

Director then must issue his or her final 

decision within 90 days of providing 

such notice to the parties. See 12 U.S.C. 

5563(b)(3). In keeping with the goal of 

providing for the expeditious resolution 

of claims, the Rules also adopt the SEC’s 

standard governing extensions of time, 

which makes it clear that such 

extensions are generally disfavored. 

The Bureau has adopted the SEC’s 

affirmative disclosure approach to fact 

discovery in administrative 

adjudications. See generally 17 CFR 

201.230. Thus, the Rules provide that 

the Division of Enforcement will 

provide any party in an adjudication 

proceeding with an opportunity to 

inspect and copy certain categories of 

documents obtained by the Division of 

Enforcement from persons not 

employed by the Bureau, as that term is 

defined in the Rules, in connection with 

the investigation leading to the 

institution of the proceedings and 

certain categories of documents created 

by the Bureau, provided such material 

is not privileged or otherwise protected 

from disclosure. The Division of 

Enforcement’s obligation under this rule 

relates only to documents obtained by 

the Division of Enforcement; documents 

located only in the files of other 

divisions or offices of the Bureau are 

beyond the scope of this rule. As set 

forth in greater detail in the section-bysection analysis below, the Bureau has 

modified the SEC rule slightly, by 

eliminating any reference to Brady v. 

Maryland while retaining an obligation 

to turn over material exculpatory 

information in the Division of 

Enforcement’s possession, and by 

providing that nothing in the rule shall 

require the Division of Enforcement to 

provide reports of examination to 

parties to whom the reports do not 

relate. 

The goal in adopting the SEC’s 

approach in this regard is to ensure that 

respondents have access to all of the 

material facts underlying Enforcement 

Counsel’s decision to commence 

enforcement proceedings and have a fair 

opportunity to prepare and present a 

defense, while eliminating much of the 

expense and delay often associated with 

pre-trial discovery in civil matters. 

Recognizing that administrative 

adjudications will take place after a 

Bureau investigation intended to gather 

relevant evidence, and in light of the 

affirmative obligation that the Rules 

place on Enforcement Counsel to 

provide access to materials gathered in 

the course of the investigation, the Rules 

do not provide for many other 

traditional forms of pre-trial discovery, 

such as interrogatories and depositions. 

The Rules do provide for the deposition 

of witnesses unavailable for trial, the 

use of subpoenas to compel the 

production of documentary or tangible 

evidence, and, in appropriate cases, 

expert discovery, thus ensuring that 

respondents have an adequate 

opportunity to marshal evidence in 

support of their defense. We believe this 

approach will promote the fair and 

speedy resolution of claims while 

ensuring that parties have access to the 

relevant information necessary to 

prepare a defense. 

B. Section-by-Section Summary 

Subpart A—General Rules 

Section 1081.100 Scope of the Rules of 

Practice 

This section sets forth the scope of the 

Rules and states that they apply to 

adjudication proceedings brought under 

section 1053 of the Act. Pursuant to the 

definition of the term ‘‘adjudication 

proceeding’’ in § 103 of the Rules, the 

Rules do not apply to proceedings 

intended to lead to the formulation of a 

temporary cease-and-desist order 

pursuant to section 1053(c) of the Act, 

although they would apply to 

subsequent proceedings initiated by a 

notice of charges seeking a permanent 

cease-and-desist order or other relief. 

The Rules do not apply to Bureau 

investigations, rulemakings, or other 

proceedings. 

Section 1081.101 Expedition and 

Fairness of Proceedings 

This section, which is modeled on the 

FTC Rules, 16 CFR 3.1, sets forth the 

Bureau’s policy to avoid delays in any 

stage of an adjudication proceeding 

while still ensuring fairness to all 

parties. It further permits the hearing 

officer or the Director to shorten time 

periods set by the Rules, provided that 

the parties consent to shortened time 

periods. This authority could be used in 

proceedings where expedited hearings 

would serve the public interest or where 

the issues do not require expert 

discovery or extended evidentiary 

hearings. 

Section 1081.102 Rules of 

Construction 

This section, drawn from the Uniform 

Rules, 12 CFR 19.2, makes clear that the 

use of any term in the Rules includes 

either its singular or plural form, as 

appropriate, and that the use of the 

masculine, feminine, or neuter gender 

shall, if appropriate, be read to 

encompass all three. This section also 

explicitly states that, unless otherwise 

indicated, any action required to be 

taken by a party to a proceeding may be 

taken by the party’s counsel. Finally, 

this section provides that terms not 

otherwise defined by § 103 should be 

defined in accordance with the Act. 

Section 1081.103 Definitions 

This section sets forth definitions of 

certain terms used in the Rules. It 

defines ‘‘adjudication proceeding’’ to 

include any proceeding conducted 

pursuant to section 1053 of the Act, 

except for proceedings to obtain a 

temporary cease-and-desist order 

pursuant to section 1053(c). The Bureau 

intends for the term ‘‘counsel’’ to 


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include any individual representing a 

party, including, as appropriate, an 

individual representing himself or 

herself. The term ‘‘Director’’ has been 

defined to include the Director, as well 

as any person authorized to perform the 

functions of the Director in accordance 

with the law. This is intended to allow 

the Deputy Director or Acting Director, 

or a delegee of the Director, as 

appropriate, to perform the functions of 

the Director. It is also intended to allow 

the Secretary of the Treasury to perform 

certain functions of the Director in 

accordance with section 1066 of the Act. 

The term ‘‘person employed by the 

Bureau’’ is defined to include Bureau 

employees and contractors as well as 

others working under the direction of 

Bureau personnel, and is intended to 

encompass, among other things, 

consulting experts. 

Section 1081.104 Authority of the 

Hearing Officer 

This section enumerates powers 

granted to the hearing officer 

subsequent to appointment. The list of 

powers in paragraph (b) is not intended 

to be exhaustive. The hearing officer is 

permitted to take any other action 

necessary and appropriate to discharge 

the duties of a presiding officer. All 

powers granted by this provision are 

intended to further the Bureau’s goal of 

an expeditious, fair, and impartial 

hearing process. The powers set forth in 

this section are generally drawn from 

the Administrative Procedure Act 

(‘‘APA’’), 5 U.S.C. 556, 557, and are 

similar to the powers granted to hearing 

officers and administrative law judges 

under the Uniform Rules, the SEC 

Rules, and the FTC Rules. 

This section provides the hearing 

officer with the explicit authority to 

issue sanctions against parties or their 

counsel as may be necessary to deter 

sanctionable conduct, provided that any 

person to be sanctioned first has an 

opportunity to show cause as to why no 

sanction should issue. The Bureau 

believes such authority is included 

within the hearing officer’s authority to 

regulate the course of the hearing, 5 

U.S.C. 556(c)(5), but considers it 

appropriate to explicitly authorize the 

exercise of such authority in the Rules. 

The Bureau notes that the MARs 

provide adjudicators with the authority 

‘‘to impose appropriate sanctions 

against any party or person failing to 

obey his/her order, refusing to adhere to 

reasonable standards of orderly and 

ethical conduct, or refusing to act in 

good faith.’’ See MARs, 11 T. M. Cooley 

L. Rev. at 83. 

Section 1081.105 Assignment, 

Substitution, Performance, 

Disqualification of Hearing Officer 

This section is modeled on the FTC 

and the SEC Rules setting forth the 

process for assigning hearing officers in 

the event that more than one hearing 

officer is available to the Bureau. See 16 

CFR 3.42(b), (e); 17 CFR 201.110, 

201.112, 201.120. Consistent with 5 

U.S.C. 3105, hearing officers will be 

‘‘assigned to cases in rotation so far as 

practicable.’’ This section also sets forth 

the process by which hearing officers 

may be disqualified from presiding over 

an adjudication proceeding. Section 

556(b) of the APA, 5 U.S.C. 556(b), 

provides that a hearing officer may 

disqualify himself or herself at any time. 

The standard for making a motion to 

disqualify requires that the movant have 

a reasonable, good faith basis for the 

motion. This standard is intended to 

emphasize that there must be objective 

reasons to seek a disqualification, not 

just a subjective, though sincerely held, 

belief. If a hearing officer does not 

withdraw in response to a motion for 

withdrawal, the motion is certified to 

the Director for his or her review in 

accordance with the Rules’ interlocutory 

review provision. Finally, this section 

provides the procedure for reassignment 

of a proceeding in the event a hearing 

officer becomes unavailable. 

Section 1081.106 Deadlines 

This section provides that deadlines 

for action by the hearing officer 

established by the Rules do not confer 

any substantive rights on respondents. 

The SEC Rules, 17 CFR 201.360(a)(2), 

contain similar language regarding the 

timelines set out for certain hearing 

officer actions in SEC proceedings. 

Section 1081.107 Appearance and 

Practice in Adjudication Proceedings 

This section is largely based on the 

Uniform Rules, 12 CFR 19.6, and sets 

forth the criteria for persons acting in a 

representative capacity for parties in 

adjudication proceedings. A notice of 

appearance is required to be filed by an 

individual representing any party, 

including an individual representing the 

Bureau, simultaneously with or before 

the submission of papers or other act of 

representation on behalf of a party. Any 

counsel filing a notice of appearance is 

deemed to represent that he or she 

agrees and is authorized to accept 

service on behalf of the represented 

party. The section also sets forth the 

standards of conduct expected of 

attorneys and others practicing before 

the Bureau. It provides that counsel may 

be excluded or suspended from 

proceedings, or disbarred from 

practicing before the Bureau, for 

engaging in sanctionable conduct during 

any phase of the adjudication 

proceeding. 

Section 1081.108 Good Faith 

Certification 

This section is based on the Uniform 

Rules, 12 CFR 19.7, and requires that all 

filings and submissions be signed by at 

least one counsel of record, or the party 

if appearing on his or her own behalf. 

This section provides that, by signing a 

filing or submission, the counsel or 

party certifies and attests that the 

document has been read by the signer, 

and, to the best of his or her knowledge, 

is well grounded in fact and is 

supported by existing law or a good 

faith argument for the extension or 

modification of the existing law. In 

addition, the certification attests that the 

filing or submission is not for purposes 

of unnecessary delay or any improper 

purpose. Oral motions or arguments are 

also subject to the good faith 

certification: the act of making the oral 

motion or argument constitutes the 

required certification. Finally, this 

section makes clear that a violation of 

the good faith certification requirement 

would be grounds for sanctions under 

§ 104(b)(13). This section, which also 

mirrors the requirements of Federal 

Rule of Civil Procedure 11, is intended 

to ensure that parties and their counsel 

are not abusing the administrative 

process by making filings that are 

factually or legally unfounded or 

intended simply to delay or obstruct the 

proceeding. 

Section 1081.109 Conflict of Interest 

In general, conflicts of interest in 

representing parties to adjudication 

proceedings are prohibited by the Rules. 

The hearing officer is empowered to 

take corrective steps to eliminate such 

conflicts. If counsel represents more 

than one party to a proceeding, counsel 

is required to file at the time he or she 

files his or her notice of appearance a 

certification that: (1) The potential for 

possible conflicts of interest has been 

fully discussed with each such party; 

and (2) the parties individually waive 

any right to assert any conflicts of 

interest during the proceeding. This 

approach is based upon the Uniform 

Rules, 12 CFR 19.8, which itself was 

based upon the Model Code of Conduct 

for attorneys and the District of 

Columbia Ethics Rule. See 56 FR 27790, 

27793 (June 17, 1991). 


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Section 1081.110 Ex Parte 

Communication 

This section implements the APA’s 

prohibition on ex parte 

communications. See 5 U.S.C. 554(d)(1), 

557(d)(1). Paragraphs (a)(1), (a)(2), and 

(b) are based on the Uniform Rules, 12 

CFR 19.9(a), (b), and prohibit an ex 

parte communication relevant to the 

merits of an adjudication proceeding 

between a person not employed by the 

Bureau and the Director, hearing officer, 

or any decisional employee during the 

pendency of an adjudication 

proceeding. Paragraph (a)(3) defines the 

term ‘‘pendency of an adjudication 

proceeding,’’ and provides that if the 

person responsible for the 

communication has knowledge that a 

notice of charges will or is likely to be 

issued, the pendency of an adjudication 

shall be deemed to have commenced at 

the time of his or her acquisition of such 

knowledge. This provision implements 

5 U.S.C. 557(d)(1)(E). 

Consistent with the MARs and the 

practice of other agencies, 

communications regarding the status of 

the proceeding are expressly excluded 

from the definition of ex parte 

communications. See MARs, 11 T.M. 

Cooley L. Rev. at 87; 12 CFR 19.9(a)(2); 

16 CFR 4.7(a). If an ex parte 

communication does occur, the 

document itself, or if oral, a 

memorandum of the substance of the 

communication must be placed in the 

record. All other parties to the 

proceeding may have the opportunity to 

respond to the prohibited 

communication, and such response may 

include a recommendation for 

sanctions. The hearing officer or the 

Director, as appropriate, may determine 

whether sanctions are appropriate. 

Finally, paragraph (e) of this section 

provides that the hearing officer is not 

permitted to consult an interested 

person or a party on any matter relevant 

to the merits of the adjudication, except 

to the extent required for the disposition 

of ex parte matters. Consistent with 5 

U.S.C. 554(d), this paragraph also 

provides that Bureau employees 

engaged in an investigational or 

prosecutorial function, other than the 

Director, may not participate in the 

decision-making function in the same or 

a factually related matter. 

Section 1081.111 Filing of Papers 

This section requires the filing of 

papers in an adjudication proceeding. It 

specifies the papers that must be filed 

and addresses the time and manner of 

filing. The section provides for filing by 

electronic transmission upon the 

conditions specified by the Director or 

the hearing officer, recognizing that 

while the Bureau anticipates the 

development of an electronic filing 

system, it may adopt other means of 

electronic filing in the interim (e.g., 

e-mail transmission). The section 

authorizes other methods of filing if a 

respondent demonstrates that filing via 

electronic transmission is not practical. 

Section 1081.112 Formal 

Requirements as to Papers Filed 

This section sets forth the formal 

requirements for papers filed in 

adjudication proceedings. It sets forth 

formatting requirements, requires that 

all documents be signed in accordance 

with § 108, and requires the redaction of 

sensitive personal information from 

filings where the filing party determines 

that such information is not relevant or 

otherwise necessary for the conduct of 

the proceeding. This section also sets 

forth the method of filing documents 

containing information for which 

confidential treatment has been granted 

or is sought, and requires that in 

addition to the filing of the confidential 

information under seal, an expurgated 

copy of the filing be made on the public 

record. Section 119 governs the filing of 

motions seeking confidential treatment 

of information and sets forth the 

standard to be applied by the hearing 

officer in determining whether to grant 

such treatment. 

Section 1081.113 Service of Papers 

This section requires that every paper 

filed in a proceeding be served on all 

other parties to the proceeding in the 

manner set forth in the rule. Service by 

electronic transmission is encouraged, 

but is conditioned upon the consent of 

the parties. The section also sets forth 

specific methods for the Bureau to serve 

notices of charges, as well as 

recommended decisions and final 

orders. In this regard, the section 

provides that such service cannot be 

made by First Class mail, but also 

provides that service may be made on 

authorized agents for service of process. 

The section also provides that the 

Bureau may serve persons at the most 

recent business address provided to the 

Bureau in connection with a person’s 

registration with the Bureau. Although 

no such registration requirements 

currently exist, the Bureau has included 

this provision to account for any such 

requirements in the future. In the event 

that a party is required to register with 

the Bureau and maintain the accuracy of 

such registration information, the 

Bureau should be entitled to rely upon 

such information for service of process. 

This provision is modeled on the SEC 

Rules, 17 CFR 201.141(a)(2)(iii). 

Section 1081.114 Construction of Time 

Limits 

This section provides common rules 

for computing time limits, taking into 

account the effect of weekends and 

holidays on time periods that are 10 

days or less. This section also sets forth 

when filing or service is effective. With 

regard to time limits for responsive 

pleadings or papers, the Rules 

incorporate a three-day extension for 

mail service, similar to the Federal 

Rules of Civil Procedure, and a one-day 

extension for overnight delivery, as 

contained in some agencies’ existing 

rules. A one-day extension for service 

by electronic transmission is consistent 

with the Uniform Rules and reflects that 

electronic transmission may result in 

delays in actual receipt by the person 

served. 

Section 1081.115 Change of Time 

Limits 

This section is modeled on the SEC 

Rules, 17 CFR 201.161, and is intended 

to limit extensions of time to those 

necessary to prevent substantial 

prejudice. The section is intended to 

further the Bureau’s goal of ensuring the 

timely conclusion of adjudication 

proceedings. The section generally 

provides the hearing officer and the 

Director with the authority to extend the 

time limits prescribed by the Rules in 

certain defined circumstances. In 

keeping with the goal of expeditious 

resolution of proceedings, this section 

provides that motions for extension of 

time are strongly disfavored and may 

only be granted after consideration of 

various enumerated factors, provided 

that the requesting party makes a strong 

showing that denial of the motion 

would substantially prejudice its case. 

The section also provides that any 

extension of time shall not exceed 21 

days unless the hearing officer or 

Director, as appropriate, states on the 

record or in a written order the reasons 

why a longer extension of time is 

necessary. Finally, the section provides 

that the granting of a motion for an 

extension of time does not affect the 

deadline for the recommended decision 

of the hearing officer, which must be 

filed no later than the earlier of 300 days 

after the filing of the notice or charges 

or 90 days after the end of post-hearing 

briefing (unless separately extended by 

the Director as provided for in § 400). 

Section 1081.116 Witness Fees and 

Expenses 

This section provides that fees and 

expenses for non-party witnesses 

subpoenaed pursuant to these Rules 


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shall be the same as for witnesses in 

United States district courts. 

Section 1081.117 Bureau’s Right To 

Conduct Examination, Collect 

Information 

This section, which is modeled on the 

Uniform Rules, 12 CFR 19.16, states that 

nothing contained in the Rules shall be 

construed to limit the right of the 

Bureau to conduct examinations or 

visitations of any person, or the right of 

the Bureau to conduct any form of 

investigation authorized by law, or to 

take other actions the Bureau is 

authorized to take outside the context of 

conducting adjudication proceedings. 

This section is intended to clarify that 

the pendency of an adjudication 

proceeding with respect to a person 

shall not affect the Bureau’s authority to 

exercise any of its powers with respect 

to that person. 

Section 1081.118 Collateral Attacks on 

Adjudication Proceedings 

This section, which is modeled on the 

Uniform Rules, 12 CFR 19.17, is 

intended to preclude the use of 

collateral attacks to circumvent or delay 

the administrative process. 

Section 1081.119 Confidential 

Information; Protective Orders 

This section sets forth the means by 

which a party or another person may 

seek a protective order shielding 

confidential information. While 

generally modeled on the SEC Rules, 17 

CFR 201.322, the section adopts the 

substantive standard set forth in the 

FTC Rules, 16 CFR 3.45(b), which 

provides that the hearing officer may 

grant a protective order only upon a 

finding that public disclosure will likely 

result in a clearly defined, serious injury 

to the person requesting confidential 

treatment or after finding that the 

material constitutes sensitive personal 

information. The Rule adopts the FTC’s 

standard because it comports with the 

Bureau’s goals of providing as much 

transparency in the adjudicative process 

as possible, while also protecting 

confidential business information or 

other sensitive information of parties 

appearing before the Bureau or third 

parties whose information may be 

introduced into evidence. The Bureau 

expects that the standard set forth in 

this section will be met in cases where 

the disclosure of trade secrets or other 

information to the public or to parties is 

likely to result in harm, but that the 

standard will not be met simply because 

the information at issue is deemed 

‘‘confidential’’ or ‘‘proprietary’’ by the 

movant. To the extent that a movant can 

identify a clearly defined, serious injury 

likely to result from the disclosure of 

such particular information, it will be 

protected; generalized claims of 

competitive or other injury generally 

will not suffice. This section provides 

that documents subject to a motion for 

confidential treatment will be 

maintained under seal until the motion 

is decided. 

Section 1081.120 Settlement 

This section is based on the SEC 

Rules, 17 CFR 201.240. It addresses 

offers of settlement made both prior to 

and after the institution of proceedings. 

Any person who is notified that a 

proceeding may or will be instituted 

against him or her, or any party to a 

proceeding, may make an offer of 

settlement in writing at any time. Any 

settlement offer shall be presented to the 

Director with a recommendation, except 

that, if the recommendation is 

unfavorable, the offer shall not be 

presented to the Director unless the 

person making the offer so requests. 

The section requires that each offer of 

settlement recite or incorporate as part 

of the offer the provisions of paragraphs 

(c)(3) and (c)(4). Because certain facts 

necessary for the Director to make a 

reasoned judgment as to whether a 

particular settlement offer is in the 

public interest will often be available 

only to the Bureau employee that 

negotiated the proposed settlement, 

paragraph (c)(4)(i) requires waiver of 

any provisions, under the Rules or 

otherwise, that may be construed to 

prohibit ex parte communications 

regarding the settlement offer between 

the Director and Bureau employee 

involved in litigating the proceeding. 

Paragraph (c)(4)(ii) requires waiver of 

any right to claim bias or prejudgment 

by the Director arising from the 

Director’s consideration or discussions 

concerning settlement of all or any part 

of the proceeding. If the Director rejects 

the offer of settlement, the person 

making the offer shall be notified of the 

Director’s action. The rejection of the 

offer of settlement shall not affect the 

continued validity of the waivers 

pursuant to paragraph (c)(4). 

Section 1081.121 Cooperation With 

Other Agencies 

This section sets forth the policy of 

the Bureau to cooperate with other 

governmental agencies to avoid 

unnecessary overlapping or duplication 

of regulatory functions. 

Subpart B—Initiation of Proceedings 

and Prehearing Rules 

Section 1081.200 Commencement of 

Proceedings and Contents of Notice of 

Charges 

This section, similar to the 

comparable Uniform Rule, 12 CFR 

19.18, contains the requirements 

relating to the initiation of adjudication 

proceedings, including the required 

content of a notice of charges initiating 

a hearing. In provisions modeled on the 

MARs and the Federal Rules of Civil 

Procedure, see MARs, 11 T.M. Cooley L. 

Rev. at 96; Fed. R. Civ. P. 41(a), this 

section also sets forth the circumstances 

under which the Bureau may 

voluntarily dismiss an adjudication 

proceeding, either on its own motion 

before the respondent(s) serve an 

answer, or by filing a stipulation of 

dismissal signed by all parties who have 

appeared. Unless the notice or 

stipulation of dismissal states otherwise, 

a dismissal pursuant to this section is 

without prejudice. In keeping with the 

principle that Bureau proceedings are 

presumed to be public, this section also 

provides that a notice of charges shall be 

released to the public after affording the 

respondent or others an opportunity to 

seek a protective order to shield 

confidential information. 

Section 1081.201 Answer 

This section requires a respondent to 

file an answer in all cases. The Bureau 

considered, but rejected, the approach 

set forth in the SEC Rules, 17 CFR 

201.220(a), whereby an answer is 

required only if specified in the notice 

of charges. The Bureau believes that an 

answer can help focus and narrow the 

matters at issue. Respondents must file 

an answer within 14 days of service of 

the notice of charges. The 14-day time 

period is adopted from the FTC Rules, 

16 CFR 3.12. As in the Uniform Rules, 

12 CFR 19.19(c), failure to file a timely 

answer is deemed to be a waiver of the 

right to appear and a consent to the 

entry of an order granting the relief 

sought by the Bureau in the notice of 

charges. This section provides that in 

the case of default, the hearing officer is 

authorized, without further proceedings, 

to find the facts to be as alleged in the 

notice of charges and to enter a 

recommended decision containing 

appropriate findings and conclusions. 

This section adopts the procedure 

from the SEC Rules for a motion to set 

aside a default, 17 CFR 201.155. It also 

provides that the hearing officer, prior 

to the filing of the recommended 

decision, or the Director, at any time, 

may set aside a default for good cause 

shown. 


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Section 1081.202 Amended Pleadings 

This section provides that the parties 

may amend the notice of charges or the 

answer at any stage of the proceeding. 

Formal amendments to the notice of 

charges and answer are not required 

when an issue not raised by the notice 

of charges or answer is tried at the 

hearing by express or implied consent of 

the parties. In the event that a party 

seeks to introduce evidence at a hearing 

that is outside the scope of matters 

raised in the notice of charges or 

answer, the hearing officer may admit 

the evidence when admission is likely 

to assist in adjudicating the merits of the 

action unless the objecting party 

demonstrates that admission of such 

evidence would unfairly prejudice that 

party’s action or defense upon the 

merits. The Bureau has adopted this 

liberal standard to the amendment of 

the pleadings to promote adjudication 

on the merits, and believes that the 

standard set forth in the rule should 

adequately protect parties from undue 

prejudice. 

Section 1081.203 Scheduling 

Conference 

This section requires the parties to 

meet before the initial scheduling 

conference to discuss the nature and 

basis of their claims and defenses, the 

possibilities for a prompt settlement or 

resolution of the case, and other matters 

to be determined at the scheduling 

conference. 

Within 20 days of the service of the 

notice of charges, or at another time if 

the parties agree, the hearing officer and 

the parties are to have a scheduling 

conference. This section sets forth the 

issues to be discussed at the scheduling 

conference. These issues are drawn from 

those the parties are required to discuss 

at scheduling and prehearing 

conferences under the Uniform Rules, 

12 CFR 19.31, the SEC Rules, 17 CFR 

201.221, and the FTC Rules, 16 CFR 

3.21. Paragraph (b)(1) provides that the 

parties shall be prepared to address the 

determination of hearing dates and 

location, and whether, in proceedings 

under section 1053(b) of the Act, the 

hearing should commence later than 60 

days after service of the notice of 

charges. This provision was added to 

account for the requirement in section 

1053(b) of the Act that the hearing be 

held no earlier than 30 days nor later 

than 60 days after the date of service of 

the notice of charges, unless an earlier 

or later date is set by the Bureau at the 

request of any party so served. It is 

expected that the parties shall discuss a 

hearing date at the scheduling 

conference, and that this would afford 

respondents the opportunity to request 

a hearing date outside the 30-to-60 day 

timeframe. 

It is also expected that at or before the 

scheduling conference, the parties will 

discuss any issues related to the 

production of documents pursuant to 

§ 206, any anticipated motions for 

witness statements pursuant to § 207, 

whether either party intends to issue 

documentary subpoenas, and whether 

either party believes that depositions 

will be necessary to preserve the 

testimony of witnesses who will be 

unavailable for the hearing. The parties 

are also expected to discuss the need 

and a schedule for any expert discovery. 

The hearing officer is required to 

issue a scheduling order at or within 

five days of the conclusion of the 

scheduling hearing, setting forth the 

date and location of the hearing, as well 

as other procedural determinations 

made. It is expected that the hearing 

officer will establish any dates for 

expert discovery in the scheduling 

order, or else expressly find that such 

discovery is not necessary or reasonable 

in a particular case. This scheduling 

order will govern the course of the 

proceedings, unless later modified by 

the hearing officer. 

Provision for a prompt scheduling 

conference followed by prompt issuance 

of a scheduling order is necessary in 

order to allow for the orderly course of 

proceedings on the timeline set forth 

elsewhere in the Rules. Particularly in 

cases brought pursuant to section 

1053(b) of the Act in which the 

respondent does not request a hearing 

date outside the 30-to-60 day timeframe 

set forth in the statute, it is essential that 

the hearing officer and the parties have 

a clear understanding of the applicable 

schedule at the earliest possible date. 

As provided for in the SEC Rules, 17 

CFR 201.221(f), this section provides 

that any person named as a respondent 

in a notice of charges who fails to 

appear at a scheduling conference may 

be deemed in default pursuant to 

§ 201(d)(1). Finally, like the FTC Rules, 

16 CFR 3.21(g), this section provides 

that scheduling conferences are 

presumptively public unless the hearing 

officer determines otherwise based on 

the standard set forth in § 119. 

Section 1081.204 Consolidation and 

Severance of Actions 

This section, modeled after the 

Uniform Rules, 12 CFR 19.22, allows the 

consolidation of actions if the 

proceedings arise out of the same 

transaction, occurrence, or series of 

transactions or occurrences or if the 

proceedings involve at least one 

common respondent or a material 

common question of law or fact. 

Proceedings are not to be consolidated 

if to do so would unreasonably delay 

the proceeding or cause significant 

injustice. 

Severance, on the other hand, may be 

granted by the hearing officer only if he 

or she determines that undue prejudice 

or injustice would result from a 

consolidated proceeding and if such 

prejudice or injustice would outweigh 

the interests of judicial economy and 

speed in the adjudication of actions. 

This is a higher standard than is 

required for the consolidation of 

actions. 

Section 1081.205 Non-Dispositive 

Motions 

This section governs all motions other 

than motions to dismiss or motions for 

summary disposition, which are 

governed by § 212. The section generally 

sets forth the requirements for filing a 

non-dispositive motion, and requires 

that all such motions must be in writing, 

state with particularity the relief sought, 

and include a proposed order. This 

section also makes clear that motions 

filed pursuant to sections that impose 

different requirements should follow 

those requirements, and the 

requirements of § 205 to the extent they 

are not inconsistent. For example, 

§ 208(g), which relates to motions to 

quash subpoenas, provides for a shorter 

time period for the filing of a responsive 

brief and prohibits the filing of a reply 

unless requested by the hearing officer. 

These conditions govern motions to 

quash, but such motions are still subject 

to other provisions of § 205, including, 

inter alia, the need to meet and confer, 

deadlines for the hearing officer’s 

ruling, and length limitations of the 

briefs. 

Like the Uniform Rules and the FTC 

Rules, 12 CFR 19.23(d)(1); 16 CFR 

3.22(d), this section gives a party 10 

days after service of a non-dispositive 

motion to respond to such motion in 

writing. It provides for reply briefs, 

which must be filed within three days 

after service of the response. A party’s 

failure to respond to a motion shall 

waive that party’s right to oppose such 

motion and constitutes consent to the 

entry of an order substantially in the 

form of the order accompanying that 

motion. This section adopts the SEC’s 

15-page length limitation for nondispositive motions and oppositions, 17 

CFR 201.154(c), and a six page length 

limitation for reply briefs. The Bureau 

has adopted these time and length 

limitations because they provide parties 

ample opportunity to express their 

views on matters that do not concern 

the ultimate disposition of the action. 


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The section also requires parties to 

make a good faith effort to meet and 

confer prior to the filing of a nondispositive motion in an effort to resolve 

the controversy by agreement. The 

Bureau has included the meet-andconfer requirement because it believes 

that such conferences can help obviate 

the need for, or narrow the scope of, 

disputed motions, thus saving both the 

parties and the hearing officer time and 

resources. 

This section provides that the hearing 

officer shall rule on a non-dispositive 

motion, and shall do so within 14 days 

after the expiration of the time for filing 

of all motions papers authorized by this 

section, and that the pendency of a 

motion shall not stay proceedings. This 

time limitation is based on the FTC 

Rules, 16 CFR 3.22(e), and is intended 

to ensure the timely resolution of 

disputes so that the proceeding as a 

whole can conclude in a fair and 

expeditious manner. As noted above, 

both the FTC and the SEC have revised 

their rules of practice to provide for the 

more expeditious resolution of 

administrative adjudications, and the 

incorporation of a time period in which 

the hearing officer must rule on a nondispositive motion is, in the views of 

the Bureau, a critical part of that effort. 

See 73 FR 58831, 58836 (Oct. 7, 2008) 

(FTC expects that provision requiring 

ALJs to decide motions within 14 days 

will expedite cases). 

Section 1081.206 Availability of 

Documents for Inspection and Copying 

Modeled primarily after the SEC 

Rules, 17 CFR 201.230, this section 

adopts the SEC’s affirmative disclosure 

approach to fact discovery in 

administrative adjudications. Generally, 

this section requires that the Division of 

Enforcement make available for 

inspection and copying certain 

categories of documents obtained by the 

Division of Enforcement prior to the 

institution of proceedings from persons 

not employed by the Bureau, in 

connection with the investigation 

leading to the institution of proceedings. 

The Bureau believes that this section 

will promote the fair and efficient 

resolution of administrative 

proceedings. A respondent’s right to 

inspect and copy documents under this 

section is automatic; the respondent 

does not need to make a formal request 

for access through the hearing officer. 

Pursuant to this section, the Division of 

Enforcement will turn over information 

from its investigatory file that was 

obtained from persons not employed by 

the Bureau as part of the investigation 

resulting in the Bureau’s decision to 

institute proceedings. The respondent 

will have access to the documents, 

testimony, and other information that 

the Bureau relied upon in determining 

to file a notice of charges, in addition to 

evidence that the Bureau will rely upon 

at the hearing. 

This approach has several advantages. 

By automatically providing respondents 

with the factual information gathered by 

the Division of Enforcement in the 

course of the investigation leading to the 

institution of proceedings, this 

provision helps ensure that respondents 

have a complete understanding of the 

basis for the Bureau’s action and can 

more accurately and efficiently 

determine the nature of their defenses or 

whether they wish to seek settlement. 

Because this approach renders 

traditional document discovery largely 

unnecessary, it will lead to a faster and 

more efficient resolution of Bureau 

administrative proceedings, saving both 

the Bureau and respondents the 

resources typically expended in the 

civil discovery process. 

The section adopts most of the 

procedures and conditions set forth in 

the SEC Rules, as discussed below. 

Pursuant to paragraph (a)(1), the 

Division of Enforcement’s obligation 

under this section relates to documents 

obtained by the Division of 

Enforcement. Documents located only 

in the files of other divisions or offices 

are beyond the scope of the rule. The 

term ‘‘documents’’ has been defined in 

the same manner as the term 

‘‘documentary material’’ in section 

1051(4) of the Act, and encompasses, 

among other things, electronic files or 

other data or data compilations stored in 

any medium. 

Paragraph (a)(1) also provides that the 

Division of Enforcement will make the 

documents available for inspection and 

copying. This provision is modeled after 

the SEC Rules and the Federal Rules of 

Civil Procedure. The Bureau anticipates 

that in most cases it will simply provide 

either paper or electronic copies of the 

material at issue to respondents, but has 

adopted the formulation in the rule to 

preserve flexibility and the Division of 

Enforcement’s right to require 

inspection and copying in appropriate 

cases. 

Paragraphs (a)(1)(i), (a)(1)(ii), and 

(a)(1)(iii) describe the types of 

documents that are subject to the 

disclosure requirement of paragraph 

(a)(1). Paragraph (a)(2) provides that the 

Division of Enforcement shall also make 

available each civil investigative 

demand or other written request to 

provide documents or to be interviewed 

issued by the Division of Enforcement 

in connection with the investigation 

leading to the institution of proceedings. 

The Division of Enforcement shall also 

make available any final examination or 

inspection reports prepared by any 

other Division of the Bureau if the 

Division of Enforcement either intends 

to introduce any such report into 

evidence or to use any such report to 

refresh the recollection of, or impeach, 

any witness. The provisions of 

paragraph (a)(2) are included in the SEC 

Rules, but have been broken out into a 

separate paragraph of this section 

because they do not comprise 

documents that the Division of 

Enforcement obtained from persons not 

employed by the Bureau, and thus do 

not technically fall within the scope of 

paragraph (a)(1). 

Pursuant to § 1081.208, a respondent 

may seek production of other 

documents pursuant to subpoena. 

Paragraph (a)(3) is intended to make 

clear that the affirmative disclosure 

obligation set forth in paragraphs (a)(1) 

and (a)(2) does not preclude the 

availability of subpoenas as separately 

provided by the Rules. 

Paragraph (a)(4) provides that this 

section does not require the Division of 

Enforcement to produce a final 

examination or inspection report 

prepared by any other Division of the 

Bureau to a respondent who is not the 

subject of that report. The Bureau has 

added this provision, which does not 

appear in the SEC Rules, out of concern 

for the privileged and confidential 

nature of examination and inspection 

reports and to make clear that 

respondents cannot rely upon the 

Bureau’s affirmative disclosure 

obligation to require the production of 

supervision or examination reports 

concerning other persons. Although the 

disclosure obligation as drafted would 

not require the production of such 

reports, the Bureau is adding this 

provision to remove any question 

regarding the issue. 

Paragraph (b)(1) of this section 

permits the Division of Enforcement to 

withhold documents that would 

otherwise be produced under paragraph 

(a) under five exceptions. Exception (i) 

shields information subject to a claim of 

privilege. Exception (ii) protects as work 

product internal documents prepared by 

persons employed by the Bureau, 

including consulting experts, which 

will not be offered in evidence. Work 

product includes any notes, working 

papers, memoranda or other similar 

materials, prepared by an attorney or 

under an attorney’s direction in 

anticipation of litigation. See Hickman 

v. Taylor, 329 U.S. 495 (1947); see also 

Fed. R. Civ. P. 26(b)(3) and (b)(5). 

Accountants, paralegals, investigators, 

and consulting experts who work on an 


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investigation do so at the direction of 

the Director, an associate director, or 

another supervisory attorney, and their 

work product is therefore shielded by 

the rule. Although such material would 

not fall within the purview of 

paragraphs (a)(1) and (a)(2), the Bureau 

has retained this provision of the SEC 

Rule to make clear that such work 

product is not subject to the affirmative 

disclosure obligation. An examination 

or inspection report prepared by one of 

the Bureau’s Supervision Divisions, 

which the Division of Enforcement 

intends to introduce into evidence or to 

use to refresh the recollection of, or 

impeach, a witness, is explicitly 

excluded from the materials that may be 

withheld pursuant to this exception. 

Exception (iii) protects the identity of 

a confidential source. See 5 U.S.C. 

552(b)(7)(C) and (D). Exception (iv) 

provides that documents need not be 

produced where applicable law 

prohibits their production. Exception (v) 

protects any other document or category 

of documents that the hearing officer 

determines may be withheld as not 

relevant to the subject matter of the 

proceeding, or otherwise for good cause 

shown. This exception is intended to 

provide the hearing officer with the 

flexibility to adjust the Bureau’s 

affirmative disclosure obligation to the 

particular contours of a proceeding. For 

example, this exception could be used 

in a situation where a single 

investigation involves a discrete 

segment or segments that are related 

only indirectly, or not at all, to the 

recommendations ultimately made to 

the Director with respect to the 

particular respondents in a specific 

proceeding. To require that documents 

not relevant to the subject matter of the 

proceeding be made available, simply 

because they were obtained as part of a 

broad investigation, burdens the 

respondent as well as the Division of 

Enforcement with unnecessary costs 

and delay. 

Paragraph (b)(2) of this section 

provides that paragraph (b) does not 

authorize the Division of Enforcement to 

withhold material exculpatory evidence 

in the possession of the Division of 

Enforcement that would otherwise be 

subject to disclosure pursuant to 

paragraph (a). Pursuant to this section, 

the Division of Enforcement will 

provide respondents with material 

exculpatory evidence it has obtained 

from persons not employed by the 

Bureau even if such evidence is 

contained in documents that the 

Division of Enforcement is otherwise 

permitted to withhold pursuant to 

paragraph (b)(1). 

The Bureau has declined to adopt the 

SEC Rules’ explicit reference to Brady v. 

Maryland, 373 U.S. 83 (1963) in this 

context. Proceedings under this part are 

civil in nature, not criminal, and the 

requirements of Brady are therefore 

inapplicable. The Division of 

Enforcement will turn over information 

from its investigatory file that was 

obtained from persons not employed by 

the Bureau as part of the investigation 

resulting in the Bureau’s decision to 

institute proceedings, including any 

material exculpatory evidence so 

obtained. The Bureau understands this 

approach to be consistent with that 

provided for in the SEC Rules. 

The Bureau has also added the clause 

‘‘that would otherwise be required to be 

produced pursuant to paragraph (a) of 

this section’’ to paragraph (b) to make 

clear that the material exculpatory 

evidence provision works in concert 

with paragraph (a), and does not impose 

a separate, free-standing obligation to 

disclose exculpatory evidence that is 

not otherwise within the scope of 

paragraph (a). 

Paragraph (c) provides that the 

hearing officer may require the Division 

of Enforcement to submit a withheld 

document list, and may order that a 

withheld document be made available 

for inspection and copying. 

Pursuant to paragraph (d), the 

Division of Enforcement is required to 

make the material governed by this 

section available for inspection and 

copying no later than seven days after 

service of the notice of charges. The 

Bureau has considered requiring 

production of the covered material at 

the time the notice of charges is served, 

but has decided against such an 

approach. A provision for a delay of no 

more than seven days will allow for the 

entry of any appropriate protective 

orders and is consistent with the SEC’s 

approach in this regard. See 17 CFR 

201.230(d). It is the Bureau’s 

expectation that the Division of 

Enforcement will make this material 

available as soon as possible in every 

case. 

Paragraphs (e) and (f) set forth the 

procedure to obtain copies of 

documents and the costs of such copies. 

As noted above, the Bureau anticipates 

providing electronic copies of the 

documents to respondents in most 

cases, and paragraph (f) accounts for 

such a provision of electronic 

documents. In order to preserve the 

discretion of the Division of 

Enforcement, however, this paragraph 

includes provisions governing the 

inspection and copying of documents. 

In order to provide for the safekeeping 

of documents subject to inspection, and 

to control costs associated with the 

implementation of this section, 

paragraph (e) provides that documents 

shall be made available for inspection 

and copying at the Bureau office where 

they are ordinarily maintained, or at 

such other place as the parties may 

agree. In cases in which electronic 

production is unwarranted, this process 

appears more likely to result in prompt 

access to documents obtained by the 

Division of Enforcement that are the 

basis of the allegations contained in the 

notice of charges. 

In a provision added by the Bureau, 

paragraph (g) of this section imposes 

upon the Division of Enforcement a 

duty to supplement its disclosures 

under paragraph (a)(1) of this section if 

it acquires information after making its 

disclosures that it intends to rely upon 

at a hearing. 

Like the SEC Rules, 17 CFR 

201.230(h), paragraph (h) provides for a 

‘‘harmless error’’ standard in the event 

the Division of Enforcement fails to 

make available to a respondent a 

document required to be made available 

by this section. 

Finally, paragraph (i) is modeled on 

the FTC Rules, 16 CFR 3.31(g), and 

provides a ‘‘claw back’’ mechanism 

whereby inadvertent disclosure of 

privileged or protected information or 

communications shall not constitute a 

waiver of the privilege or protection, 

provided that the party took reasonable 

steps to prevent disclosure and 

promptly took reasonable steps to 

rectify the error. Furthermore, paragraph 

(i) provides that disclosure of privileged 

or protected information or 

communications shall waive the 

privilege only if the waiver was 

intentional and that the scope of such 

waiver is limited to the undisclosed 

information or communications 

concerning the same subject matter, 

which in fairness ought to be considered 

together with the disclosed information 

or communications. Paragraph (i) 

expressly applies to disclosures made 

by any party during an adjudication 

proceeding. 

Section 1081.207 Production of 

Witness Statements 

Modeled after the SEC Rules, 17 CFR 

201.231, this section provides that a 

respondent may request for inspection 

and copying any statement of a Division 

of Enforcement witness that (1) pertains 

to or is expected to pertain to his or her 

direct testimony; and (2) would be 

required to be produced pursuant to the 

Jencks Act, 18 U.S.C. 3500, if the 

adjudication proceeding were a criminal 

proceeding. This section is intended to 

promote the principles of transparency 


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and efficiency discussed with respect to 

§ 1081.206. Note, however, that the 

respondent is required to move for the 

production of these statements. 

The Jencks Act does not require 

production of a witness’ prior statement 

until the witness takes the stand. The 

Bureau expects that in most cases, the 

Division of Enforcement will provide 

prehearing production voluntarily. 

Submission of a witness’ prior 

statement, however, may provide a 

motive for intimidation of that witness 

or improper contact by a respondent 

with the witness. The rule provides, 

therefore, that the time for delivery of 

witness statements is to be determined 

by the hearing officer, so that a casespecific determination of such risks can 

be made if necessary. Upon a showing 

that there is substantial risk of improper 

use of a witness’ prior statement, the 

hearing officer may take appropriate 

steps. For example, a hearing officer 

may delay production of a prior 

statement, or prohibit parties from 

communicating with particular 

witnesses. 

Like § 1081.206 and the SEC Rules, 

this section provides for a ‘‘harmless 

error’’ standard in the event the Division 

of Enforcement fails to make available a 

statement required to be made available 

by this section. 

Section 1081.208 Subpoenas 

This section is modeled after the SEC 

Rules, 17 CFR 201.232, and provides 

that, in connection with a hearing, a 

party may request the issuance of a 

subpoena for the attendance and 

testimony of a witness or the production 

of documents. The availability of 

subpoenas for witnesses and documents 

ensures that respondents have available 

to them the necessary tools to adduce 

evidence in support of their defenses. A 

subpoena may only be issued by the 

hearing officer (as opposed to counsel) 

and the section sets forth procedures to 

prevent the issuance of subpoenas that 

may be unreasonable, oppressive, 

excessive in scope, or unduly 

burdensome. The section also sets forth 

procedures and standards applicable to 

a motion to quash or modify a 

subpoena. 

Paragraph (h) of this section also 

provides that, if a subpoenaed person 

fails to comply, the Bureau, on its own 

motion or on the motion of the party at 

whose request the subpoena was issued, 

may seek an order requiring 

compliance. In accordance with section 

1052(b)(2) of the Act, which authorizes 

the Bureau or a Bureau investigator to 

seek enforcement of a subpoena, 

paragraph (h) only authorizes the 

Bureau—and not the party at whose 

request the subpoena was issued—to 

seek judicial enforcement of the 

subpoena. Compare 12 CFR 19.26(c) 

(authorizing the ‘‘subpoenaing party or 

any other aggrieved party’’ to seek 

judicial enforcement). In a provision 

added by the Bureau, this section also 

provides that failure to request that the 

Bureau seek enforcement of a subpoena 

constitutes waiver of any claim of 

prejudice predicated upon the 

unavailability of the testimony or 

evidence sought. This provision was 

added to prevent a respondent from 

declining to request that the Bureau 

seek to enforce the subpoena of a 

witness who fails to comply, and later 

claiming that his or her defense was 

prejudiced based upon the 

unavailability of that witness. 

Section 1081.209 Deposition of 

Witness Unavailable for Hearing 

This section, generally modeled after 

the Uniform Rules and the SEC Rules, 

12 CFR 19.27; 17 CFR 201.233, provides 

that parties may seek to depose material 

witnesses unavailable for the hearing 

upon application to the hearing officer 

for a deposition subpoena. The 

application must state that the witness 

is expected to be unavailable due to age, 

illness, infirmity or other reason and 

that the petitioning party was not the 

cause of the witness’s unavailability. 

The Bureau has adopted the Uniform 

Rules’ formulation of this standard, 

which provides for such depositions 

when the witness is ‘‘otherwise 

unavailable,’’ to account for the possible 

unavailability of witnesses for reasons 

other than those specified in the SEC 

Rules. 

Paragraph (a)(2) requires a party 

seeking to record a deposition by audiovisual means to so note in the request 

for a deposition subpoena. This 

provision is modeled on Federal Rule of 

Civil Procedure 30(b)(3). Paragraph 

(a)(4) also provides that a deposition 

cannot be taken on less than 14 days’ 

notice to the witness and all parties, 

absent an order to the contrary from the 

hearing officer. 

Paragraph (h) incorporates several 

provisions from the SEC Rules. It 

provides that the witness being deposed 

may have an attorney present during the 

deposition; that objections to questions 

of evidence shall be noted by the 

deposition officer, but that only the 

hearing officer shall have the power to 

decide on the competency, materiality, 

or relevance of evidence; that the 

deposition shall be filed with the 

Executive Secretary; and that transcripts 

shall be available to the deponent and 

each party for purchase. 

This section also incorporates certain 

procedures from § 208 of the Rules 

pertaining to subpoenas. Those 

procedures are intended to protect 

against deposition requests that may be 

unreasonable, oppressive, excessive in 

scope, or unduly burdensome, and to 

provide a mechanism for signing and 

service of a deposition subpoena, the 

filing of a motion to quash, and for 

enforcing subpoenas. 

The Bureau considered whether 

respondents should be allowed to issue 

subpoenas for the purpose of 

compelling prehearing discovery 

depositions as is allowed in actions 

under the Federal Rules of Civil 

Procedure. Discovery under the Federal 

Rules of Civil Procedure, including 

deposition practice, is often a source of 

delay, extensive collateral disputes and 

high litigation costs. The Bureau 

believes expanding the scope of 

prehearing discovery to permit 

discovery depositions is not warranted 

for several reasons. 

First, the Bureau believes that even if 

limitations were placed on the 

availability of discovery depositions, 

there remains a significant potential for 

extensive collateral litigation over their 

use. Second, use of discovery 

depositions is in tension with the 

statutory timetable for hearings in ceaseand-desist proceedings under section 

1053(b) of the Act. Indeed, in part for 

this reason, the Rules allow the hearing 

officer to decide whether and to what 

extent to permit expert discovery in 

adjudication proceedings. Allowing 

prehearing depositions would present 

extreme scheduling difficulties in those 

cases in which respondents did not 

request hearing dates outside the 30-to60 day timeframe set forth in the Act. 

Third, the rationale for permitting oral 

depositions in litigation under the 

Federal Rules of Civil Procedure does 

not apply equally to a Bureau 

administrative proceeding. In the 

typical civil action between private 

parties, where neither party can compel 

testimony prior to the filing of the 

complaint, oral depositions play a 

critical role in permitting evidence to be 

gathered prior to trial. Here, by contrast, 

the Bureau can compel such testimony 

and is committed to making it available 

to respondents pursuant to § 1081.206. 

Finally, these Rules include three 

provisions that address in significant 

part a respondent’s interest in obtaining 

discovery prior to the start of the 

hearing. Section 1081.206 mandates that 

the Division of Enforcement generally 

make available not only transcripts of 

testimony, but documents obtained from 

persons not employed by the Bureau 

during the investigation leading to the 


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proceeding as well as certain documents 

of the Bureau. Section 1081.208 

authorizes the issuance of subpoenas 

duces tecum for the production of 

documents returnable at any designated 

time or place. In addition, § 1081.210 

provides for expert discovery in 

appropriate cases. Given these discovery 

mechanisms, the ability to subpoena 

witnesses to testify at the hearing, the 

ability to take the deposition of material 

witnesses unavailable for hearing, and 

the ability of respondents to conduct 

informal discovery, the marginal 

benefits of prehearing depositions are 

not justified by their likely cost in time, 

expense, collateral disputes and 

scheduling complexities. 

Section 1081.210 Expert Discovery 

This section is modeled after the FTC 

Rules, 16 CFR 3.31A. Neither the 

Uniform Rules nor the SEC Rules 

provide for expert discovery. The 

Bureau has provided for expert 

discovery so that the parties may fully 

understand the other side’s position 

prior to the hearing, which will enable 

a clearer and more efficient airing of the 

issues at the hearing, and which may 

also clarify the issues for a possible 

prehearing settlement. It will also 

enable the parties to identify rebuttal 

expert witnesses, if needed, prior to the 

hearing. 

Paragraph (a) provides that the 

hearing officer shall establish a date for 

the exchange of expert reports in the 

scheduling order. This provision is 

intended to allow flexibility in 

scheduling expert discovery depending 

on the complexity of the case and the 

date of the hearing. 

Paragraph (b) limits parties to five 

expert witnesses, including any rebuttal 

or surrebuttal experts, as do the FTC 

Rules, 16 CFR 3.31A. The Bureau 

believes this is sufficient to provide the 

parties with an opportunity to 

adequately present expert testimony 

without unduly delaying the 

proceedings. Paragraph (b) also provides 

that no party may call an expert witness 

unless that witness has been identified 

and provided a report in accordance 

with this section, unless the hearing 

officer provides otherwise at a 

scheduling conference. The last clause 

is intended to reflect a hearing officer’s 

discretion, at a scheduling conference, 

to dispense with or otherwise limit 

expert discovery in a particular case (as 

expressly provided for in paragraph (e) 

of this section). 

Paragraph (c) sets forth the required 

contents of an expert report. This 

section is based upon the corresponding 

provisions of the FTC Rules. 

Paragraph (d) provides for expert 

depositions, which are not to exceed 8 

hours absent agreement of the parties or 

an order by the hearing officer. These 

time limits are intended to provide 

adequate time to prepare for expert 

testimony without unduly delaying the 

proceedings. Paragraph (d) also provides 

that expert depositions shall be 

conducted pursuant to the procedures 

set forth in § 1081.209. Finally, 

paragraph (d) provides that an expert’s 

deposition shall be conducted after 

submission of the expert’s report but no 

later than seven days prior to the 

deadline for submission of rebuttal 

expert reports. This provision is 

intended to allow parties to rely upon 

the deposition of an opposing party’s 

expert in the preparation of a rebuttal 

expert report. Because, pursuant to 

paragraph (a), rebuttal reports are due 

28 days after the exchange of expert 

reports, expert depositions will need to 

take place within that 28 day period. 

Finally, paragraph (e) authorizes the 

hearing officer to dispense with expert 

discovery in appropriate cases. The 

Bureau envisions hearing officers 

relying on this provision in cease-anddesist proceedings brought pursuant to 

section 1053(b) of the Act, where the 

respondent has not requested a hearing 

date outside the statutory 30-to-60 day 

timeframe. In such cases, it may be 

appropriate to dispense with expert 

discovery for timing reasons, while 

allowing the parties to call expert 

witnesses. 

Section 1081.211 Interlocutory Review 

This section sets forth the procedure 

and standards applicable to 

interlocutory review by the Director of 

a ruling or order of the hearing officer. 

In contrast to the practice in the federal 

judicial system, but like the SEC, the 

Director may take up a matter on his or 

her own motion at any time, even if a 

hearing officer does not certify it for 

interlocutory review. 

Paragraph (b) provides that any party 

may file a motion for certification of a 

ruling or order for interlocutory review 

within five days of service of the order 

or ruling. Responses to such motions are 

due within three days, and the hearing 

officer is required to rule upon such a 

motion within five days thereafter. 

Paragraph (c) sets forth the 

permissible bases for certifying a ruling 

or order. Certification is appropriate if 

the hearing officer’s ruling would 

compel testimony or production of 

documents from Bureau officers or 

employees, or officers or employees 

from another governmental agency. This 

is consistent with the SEC Rules, 17 

CFR 201.400. Like FTC Rules, 16 CFR 

3.23(a)(1), however, this provision 

includes officers and employees from 

other governmental agencies, and not 

just the Bureau, in order to afford the 

same treatment to other agencies within 

the federal government. Paragraph (c) 

also provides for certification of rulings 

or orders as to which there is a 

substantial ground for difference of 

opinion and an immediate review may 

materially advance the completion of 

the proceeding or subsequent review 

will be an inadequate remedy. The 

hearing officer may also certify a ruling 

or order where the ruling or order 

involves a motion for disqualification of 

the hearing officer or the suspension of 

an individual from appearing before the 

Bureau. 

Paragraph (d) provides that a party 

whose motion for certification is denied 

by the hearing officer may petition the 

Director directly for interlocutory 

review. This provision is intended to 

guard against a hearing officer’s 

unwillingness to certify a ruling that 

appears to meet the standards set forth 

in the section. The Bureau expects such 

direct petitions to the Director to be 

used sparingly. 

Paragraph (e) governs the Director’s 

review of matters certified pursuant to 

paragraph (c) or for which review is 

sought pursuant to paragraph (d). It sets 

forth the policy of the Bureau that 

interlocutory review is disfavored and 

provides that the Director will grant 

such review only in extraordinary 

circumstances. 

Paragraph (f) provides that 

proceedings will not be stayed by the 

filing of a motion for certification for 

interlocutory review or a grant of such 

review unless the hearing officer or the 

Director shall so order. This is intended 

to promote the expeditious resolution of 

proceedings and to deter frivolous 

motions for certification or review. 

Section 1081.212 Dispositive Motions 

This section lays out the procedures 

and standards for motions to dismiss 

and motions for summary disposition. It 

expressly provides for the filing of 

motions to dismiss, but makes clear that 

filing such a motion does not affect a 

party’s obligation to file an answer or 

take any other action. This is intended 

to ensure that motions to dismiss do not 

delay the proceedings unnecessarily. 

The timelines for decisions on 

dispositive motions, discussed below, 

should help ensure that a party 

ultimately determined to be entitled to 

dismissal is not required to engage in 

the adjudicative process for a lengthy 

period of time. 

Paragraph (b) provides that a 

respondent may file a motion to dismiss 


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asserting that, even assuming the truth 

of the facts alleged in the notice of 

charges, it is entitled to dismissal as a 

matter of law. Neither the SEC Rules, 

the FTC Rules, nor the Uniform Rules 

specifically set forth procedures or a 

standard applicable to motions to 

dismiss, although the FTC Rules and 

Uniform Rules appear to contemplate 

such motions. See 16 CFR 3.22(a) 

(referencing motions to dismiss); 12 CFR 

19.5(b)(7) (same). The Bureau has 

determined that such motions are 

appropriate and should be provided for 

in the Rules, but should not serve to 

delay the proceedings. 

Paragraphs (c) and (d) govern the 

filing of motions for summary 

disposition. They adopt standards 

similar to those set forth in the Uniform 

Rules, the SEC Rules, and the FTC Rules 

for such motions. Any party to a 

proceeding may file a motion for 

summary disposition of a proceeding or 

for partial summary disposition of a 

proceeding if: (1) There is no genuine 

issue as to any material fact; and (2) the 

moving party is entitled to a favorable 

decision as a matter of law. The motion, 

which may be filed after a respondent’s 

answer has been filed and documents 

have been made available for inspection 

and copying pursuant to § 1081.206, 

must be accompanied by a statement of 

the uncontested material facts, a brief, 

and any documentary evidence in 

support of the motion. 

Any party opposing such a motion 

must file a statement setting forth those 

material facts as to which he or she 

contends a genuine dispute exists, 

supported by the same type of evidence 

permitted with a motion for summary 

disposition, and a brief in support of the 

contention that summary disposition 

would be inappropriate. These 

paragraphs are modeled after the 

Uniform Rules, 12 CFR 19.29. 

Pursuant to paragraphs (e), (f), and (g), 

motions to dismiss and for summary 

disposition are subject to a 35-page limit 

(modeled on the SEC Rules, 17 CFR 

201.250(c)), responses to such motions 

are due within 20 days (modeled on the 

Uniform Rules, 12 CFR 19.29(b)(1)), and 

reply briefs are due within five days of 

the response and shall not exceed 10 

pages. Oral argument is permitted at the 

request of any party or by motion of the 

hearing officer. 

Paragraph (h) provides that the 

hearing officer must decide a dispositive 

motion within 30 days of the expiration 

of the time for filing all oppositions and 

replies. The Uniform Rules do not set a 

deadline for a decision on dispositive 

motions. The FTC Rules provide for the 

Commission to decide substantive 

motions within 45 days, 16 CFR 3.22(a), 

and the SEC Rules state that motions for 

summary disposition are to be decided 

‘‘promptly’’ by the hearing officer, 17 

CFR 201.250(b). The Bureau has 

adopted the 30-day timeframe for 

decisions on dispositive motions in 

keeping with its emphasis on 

expeditious decision-making in 

administrative proceedings. The Bureau 

believes that 30 days affords sufficient 

time for the hearing officer to properly 

assess the merits of the motion and draft 

either a ruling denying the motion or a 

recommended decision granting it. 

If the hearing officer finds that a party 

is not entitled to dismissal or summary 

disposition, he or she shall make a 

ruling denying that motion. This ruling 

would not be subject to interlocutory 

appeal unless such an appeal was 

granted pursuant to the procedures and 

standards set forth in § 1081.211. If the 

hearing officer determines that 

dismissal or summary adjudication is 

appropriate, he or she will issue a 

recommended decision to that effect. If 

a party, for good cause shown, cannot 

yet present facts essential to justify 

opposition to the motion, the hearing 

officer is to deny or defer the motion. 

Section 1081.213 Partial Summary 

Disposition 

This section is modeled on the FTC 

Rules, 16 CFR 3.24(a)(5). It permits a 

hearing officer who denies summary 

adjudication of the whole case 

nevertheless to issue an order specifying 

the facts that appear without substantial 

controversy. Those facts will be deemed 

established in the proceeding. This 

section enables the hearing officer to 

narrow the dispute between the parties 

so that the hearing can proceed as 

efficiently as possible. 

Section 1081.214 Prehearing 

Conferences 

This section sets forth the procedures 

for a prehearing conference, which the 

hearing officer may convene on his own 

motion or at the request of a party. It 

sets forth matters that may be discussed 

at a prehearing conference. As with a 

scheduling conference pursuant to 

§ 203, the conference is presumptively 

public unless the hearing officer 

determines otherwise under the 

standard set forth in § 1081.119. 

Section 1081.215 Prehearing 

Submissions 

This section is modeled primarily 

after the Uniform Rules, 12 CFR 19.32, 

which provide for mandatory 

prehearing submissions by the parties. 

Section 215 requires that the following 

documents be served upon the other 

parties no later than 10 days prior to the 

start of the hearing: A prehearing 

statement; a final list of witnesses to be 

called to testify that includes a 

description of the expected testimony of 

each witness; any prior sworn 

statements that a party intends to admit 

into evidence pursuant to § 1081.303; a 

list of exhibits along with a copy of each 

exhibit; and any stipulations of fact or 

liability. The failure of a party to 

comply with this provision will 

preclude the party from presenting any 

witnesses or exhibits not listed in its 

prehearing submission at the hearing, 

except for good cause shown. To 

account for cases in which the hearing 

officer has dispensed with expert 

discovery, this section also requires that 

a statement of any expert’s 

qualifications and other information 

concerning the expert be turned over if 

it has not been provided pursuant to 

§ 1081.210. 

The FTC Rules do not provide for a 

prehearing submission, and the SEC 

Rules, 17 CFR 201.222, do not make 

such a submission mandatory. The 

Bureau has followed the Uniform Rules’ 

model as it believes that prehearing 

submissions will assist the parties in 

clarifying and narrowing the issues to be 

adjudicated at the hearing, which is 

especially important under the 

expedited hearing schedule provided for 

by section 1053(b) of the Act and these 

Rules. 

Section 1081.216 Amicus Participation 

This section, based upon the SEC 

Rules, 17 CFR 201.210, allows for 

amicus briefs in proceedings under this 

part, but only under certain 

circumstances. An amicus brief may be 

allowed when a motion for leave to file 

the brief has been granted; the brief is 

accompanied by written consent of all 

parties; the brief is filed at the request 

of the Director or the hearing officer, as 

appropriate; or the brief is presented by 

the United States or an officer or agency 

thereof, or by a State (defined to include 

territories or possessions of the United 

States, the District of Columbia, the 

Commonwealth of Puerto Rico, the 

Commonwealth of the Northern Mariana 

Islands, Guam, American Samoa or any 

federally recognized Indian tribe), or a 

political subdivision thereof. 

A motion to file an amicus brief is 

subject to the procedural requirements 

set forth in § 1081.205. An amicus will 

be granted oral argument only for 

extraordinary reasons. 

The Bureau considered incorporating 

other provisions of the SEC Rules 

regarding participation but decided 

against doing so. The Bureau believes 

that allowing intervention by other 

parties will serve to delay the 


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proceedings with little or no attendant 

benefit, particularly in light of the 

allowance for amicus participation. The 

Bureau has also decided against 

including a provision providing for the 

limited participation of federal or state 

criminal prosecutors for the purpose of 

seeking stays during the pendency of 

criminal investigations or prosecutions 

arising out of the same or similar facts 

as are at issue in an adjudication 

proceeding. The Bureau believes that 

such stays can be appropriately sought 

by Enforcement Counsel upon request of 

Federal or state agencies. 

Subpart C—Hearings 

Section 1081.300 Public Hearings 

This section provides that hearings 

before the Bureau will be presumptively 

public, a practice that is consistent with 

the provisions of the FTC Rules, 16 CFR 

3.41(a), SEC Rules, 17 CFR 201.301, and 

the Uniform Rules, 12 CFR 19.33(a). 

Specifically, hearings will be public 

unless a confidentiality order is entered 

by the hearing officer according to the 

standard set forth in § 1081.119, or 

unless the Director otherwise orders a 

non-public hearing on the ground that 

holding an open hearing would be 

contrary to the public interest. 

Section 1081.301 Failure To Appear 

This section, which is modeled after 

the Uniform Rules, 12 CFR 19.21, 

provides that the failure of a respondent 

to appear in person or by duly 

authorized counsel at the hearing may 

constitute a waiver of the respondent’s 

right to a hearing and may be deemed 

an admission of the facts alleged and a 

consent to the relief sought in the notice 

of charges. Without further notice to the 

respondent, the hearing officer shall file 

a recommended decision addressing the 

relief sought in the notice of charges. 

Section 1081.302 Conduct of Hearings 

This section provides general 

principles for the conduct of hearings 

and the order in which the parties are 

to present their cases. The first sentence 

emphasizing the goals of fairness, 

impartiality, expediency, and 

orderliness is drawn from the SEC 

Rules, 17 CFR 201.300. The remainder 

of the section, which governs the order 

in which the parties are to present their 

cases, is modeled after the Uniform 

Rules, 12 CFR 19.35. 

Section 1081.303 Evidence 

This section sets forth rules regarding 

the offering and admissibility of 

evidence at hearings, and adopts 

evidentiary standards similar to those 

set forth in the FTC Rules, SEC Rules, 

and the Uniform Rules. 

The section provides that 

Enforcement Counsel shall bear the 

burden of proving the ultimate issue(s) 

of the Bureau’s claims at the hearing. 

Consistent with general 

administrative practice, this section 

provides that evidence that is relevant, 

material, reliable, and not unduly 

repetitive shall be admissible to the 

fullest extent authorized by the APA 

and other applicable law, and that 

evidence shall not be excluded solely on 

the basis of its being hearsay if it is 

otherwise admissible and bears 

satisfactory indicia of reliability. 

This section provides that official 

notice may be taken of any material fact 

that is not subject to reasonable dispute 

in that it is either generally known or 

capable of accurate and ready 

determination by resort to sources 

whose accuracy cannot reasonably be 

questioned. It provides further that 

duplicate copies of documents are 

admissible to the same extent as 

originals unless a genuine issue is raised 

about the veracity or legibility of a 

document. Parties may, at any stage of 

the proceeding, stipulate as to any 

relevant matters of fact or the 

authentication of any relevant 

documents. Such stipulations may be 

received in evidence at the hearing and 

are binding on the parties. This section 

also provides that documents generated 

by respondents that come from their 

own files are presumed authentic and 

kept in the regular course of business 

and that the burden of proof is on the 

respondent to introduce evidence to 

rebut such a presumption. 

Objections to the admissibility of 

evidence must be timely made and a 

failure to object to the admission of 

evidence shall constitute a waiver of the 

objection. Parties are entitled to present 

their cases or defenses by sworn oral 

testimony and documentary evidence. 

Witnesses at a hearing are required to 

testify under oath or affirmation. 

The provisions in this section about 

introducing prior sworn statements of 

witnesses into the record are modeled 

after the SEC Rules, 17 CFR 201.235. 

The section specifies the circumstances 

under which prior sworn statements by 

a non-party witness are admissible into 

the record. These statements can be 

admitted if a witness is dead, outside of 

the United States, unable to attend 

because of age, sickness, infirmity, 

imprisonment or other disability, or if 

the party offering the sworn statement is 

unable to procure the attendance of the 

witness by subpoena. Even if these 

conditions are not met, a prior sworn 

statement may be introduced into the 

record in the discretion of the hearing 

officer. 

Section 1081.304 Record of the 

Hearing 

Modeled on the FTC Rules, 16 CFR 

3.44, this section provides that hearings 

will be stenographically reported and 

transcribed and that the original 

transcript shall be part of the record. It 

outlines the procedure by which a party 

may request correction of the transcript. 

Finally, it states that upon completion 

of the hearing, the hearing officer will 

issue an order closing the record after 

giving the parties three days to 

determine whether the record is 

complete or requires supplementation. 

Section 1081.305 Post-Hearing Filings 

This section is drawn largely from the 

Uniform Rules, 12 CFR 19.37, and 

provides that the parties may file 

proposed findings of fact, proposed 

conclusions of law, and a proposed 

order within 30 days following service 

of a notice on the parties that the 

transcript has been properly filed or 

within such longer period as the hearing 

officer may order. Proposed findings 

and conclusions must be supported by 

citation to any relevant authorities, and 

by page references to any relevant 

portions of the record. Responsive briefs 

may be filed to these proposed findings 

and conclusions within 15 days after the 

deadline for the proposed findings and 

conclusions, provided that the party 

responding has filed its own proposed 

findings and conclusions. The hearing 

officer shall not order the filing by any 

party of any post-hearing brief or 

responsive brief in advance of the other 

party’s filing of its post-hearing brief. 

Section 1081.306 Record in 

Proceedings Before Hearing Officer; 

Retention of Documents; Copies 

This section, drawn from the SEC 

Rules, 17 CFR 201.350, lists the 

documents that comprise the record of 

a proceeding before the hearing officer. 

It provides that those documents 

excluded from evidence should be 

excluded from the record but retained 

until either a decision of the Bureau has 

become final, or the conclusion of any 

judicial review of the Director’s final 

order. This section also states that a 

copy of a document in the record may 

be substituted for an original. 

Subpart D—Decision and Appeal 

Section 1081.400 Recommended 

Decision of the Hearing Officer 

This section adopts the general 

framework governing decisions by the 

hearing officer from the SEC Rules, 17 

CFR 201.360. It provides that the 

hearing officer will file a recommended 

decision in each case within a specified 


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time frame. Unlike the SEC Rule, which 

provides that the hearing officer will 

issue an ‘‘initial decision,’’ this section 

provides that the hearing officer’s 

decision will be a recommended 

decision to the Director. 

This section also deviates from the 

SEC model in that it does not provide 

for multiple ‘‘tracks’’ or timelines, but 

just one. This section provides that the 

hearing officer will file a recommended 

decision in each case no later than 90 

days after the deadline for filing posthearing responsive briefs and in no 

event later than 300 days after service of 

the notice of charges. The 300-day 

timeframe is taken from the SEC Rules, 

17 CFR 201.360(a)(2), and the 90-day 

timeframe is modeled on the FTC Rules, 

16 CFR 3.51(a). Requests by the hearing 

officer for extensions of this time frame 

must be made to the Director and will 

be granted only if the Director 

determines that additional time is 

necessary or appropriate in the public 

interest. The Bureau anticipates such 

requests and extensions to be rare. As 

noted above, this provision was adopted 

to ensure the timely resolution of 

adjudication proceedings in light of the 

experience of other agencies. The 

Bureau believes that the 90-day and 

300-day timelines set forth in this 

section provide sufficient time for the 

hearing officer to conduct appropriate 

proceedings and issue an informed 

recommended decision. 

Paragraph (c) of this section is 

modeled on the SEC Rules, 17 CFR 

201.360(b), and sets forth the contents of 

the recommended decision, providing 

that the recommended decision shall 

include a statement of findings of fact 

and conclusions of law, as well as the 

reasons or basis therefore, and an 

appropriate order, sanction, relief or 

denial thereof. The recommended 

decision shall also state that a notice of 

appeal may be filed within 10 days after 

service of the recommended decision, 

and shall include a statement that the 

Director may issue a final decision and 

order adopting the recommended 

decision, unless a party timely files and 

perfects a notice of appeal. The 

recommended decision shall be filed 

with the Executive Secretary, who will 

promptly serve the recommended 

decision on the parties. 

Drawing from the FTC Rules, 16 CFR 

3.51(d), paragraph (d) of this section 

provides that the recommended 

decision shall be made by the hearing 

officer who presided over the hearing, 

except when he or she has become 

unavailable to the Bureau. Paragraph (e) 

provides that the hearing officer may 

reopen proceedings for receipt of further 

evidence upon a showing of good cause 

until the close of the hearing record. 

With the exception of correcting clerical 

errors or addressing a remand from the 

Director, the hearing officer’s 

jurisdiction terminates upon the filing 

of the recommended decision. 

Section 1081.401 Transmission of 

Documents to Director; Record Index; 

Certification 

Modeled on the Uniform Rules, 

12 CFR 19.38(b) and the SEC Rules, 17 

CFR 201.351(c), this section directs the 

hearing officer to furnish to the Director 

a certified index for the case at the same 

time that the hearing officer files the 

recommended decision. It also 

establishes the process by which the 

record is transmitted to the Director for 

review on appeal. 

Section 1081.402 Notice of Appeal; 

Review by the Director 

This section contains the process for 

review of a recommended decision by 

the Director. Paragraph (a) is drawn 

from the FTC Rules, 16 CFR 3.52(b), and 

states that any party may object to the 

recommended decision of the hearing 

officer by filing a notice of appeal to the 

Director within 10 days of the 

recommended decision and perfecting 

that notice of appeal by filing an 

opening brief within 30 days of the 

recommended decision. Any party may 

respond to the opening brief by filing an 

answering brief within 30 days of 

service of the opening brief, and reply 

briefs may be filed within seven days 

after that. Appeals to the Director are 

available as of right in all cases where 

the hearing officer has issued a 

recommended decision. 

This section also provides that within 

40 days after the date of service of the 

recommended decision, the Director, on 

his or her own initiative, may order 

further briefing or argument with 

respect to any recommended decision or 

portion of any recommended decision 

or issue a final decision and order 

adopting the recommended decision. 

The 40-day time period is intended to 

provide the Director with the benefit of 

knowing whether any party has filed 

and perfected an appeal before 

determining whether further briefing 

and argument regarding a recommended 

decision is necessary. Any such order 

shall set forth the scope of further 

review and the issues that will be 

considered and will provide for the 

filing of briefs if the Director deems 

briefing appropriate. 

Finally, this section provides that, 

pursuant to 5 U.S.C. 704, a perfected 

appeal to the Director of a 

recommended decision is a prerequisite 

to the seeking of judicial review of a 

final decision and order, unless the 

Director issues a final decision and 

order that does not incorporate the 

recommended decision, in which case 

judicial review shall be available to the 

extent that the Director’s final decision 

and order does not adopt the 

recommended decision. 

Section 1081.403 Briefs Filed With the 

Director 

This section outlines the requirements 

for briefs filed with the Director. 

Paragraph (a) is modeled on the SEC 

Rules, 17 CFR 201.350(b), and governs 

the content of briefs. Paragraph (b) is 

also drawn from the SEC Rules, 17 CFR 

201.350(c), and sets forth length 

limitations for briefs. Unlike the SEC 

and the FTC, the Bureau has placed 

page limits—rather than word limits— 

on briefs. This change is intended to 

simplify the Rules and place less of a 

burden upon the parties but should 

have no substantive impact. 

Section 1081.404 Oral Argument 

Before the Director 

This section adopts the SEC’s policy 

for oral argument on appeal wherein the 

Director will consider appeals, motions, 

and other matters on the basis of the 

papers filed without oral argument 

unless the Director determines that the 

presentation of facts and legal 

arguments in the briefs and record and 

the decisional process would be 

significantly aided by oral argument. A 

party who seeks oral argument is 

directed to indicate such a request on 

the first page of its opening or 

answering brief. Oral argument shall be 

public unless otherwise ordered by the 

Director. 

Section 1081.405 Decision of the 

Director 

This section contains rules regarding 

the final decision and order of the 

Director. Paragraph (a) provides for the 

scope of the Director’s review and 

defines the record before the Director as 

consisting of all items that were part of 

the record below in accordance with 

§ 1081.306; any notices of appeal or 

order directing review; all briefs, 

motions, submissions, and other papers 

filed on appeal or review; and the 

transcript of any oral argument held. 

The Director may have the advice and 

assistance of decisional employees in 

considering and disposing of a case. In 

rendering a final decision, the Director 

will affirm, adopt, modify, set aside, or 

remand for further proceedings the 

recommended decision and will include 

in the decision a statement of the 

reasons or basis for the Director’s 


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3Section 1022(b)(2)(A) addresses the 

consideration of the potential benefits and costs of 

regulation to consumers and industry, including the 

potential reduction of access by consumers to 

consumer financial products or services; the impact 

of proposed rules on depository institutions and 

credit unions with $10 billion or less in total assets 

as described in Section 1026 of the Dodd-Frank Act; 

and the impact on consumers in rural areas. 

4The President’s July 11, 2011, Executive Order 

13579 entitled ‘‘Regulation and Independent 

Regulatory Agencies,’’ asks the independent 

agencies to follow the cost-saving, burden-reducing 

principles in Executive Order 13563; harmonization 

and simplification of rules; flexible approaches that 

reduce costs; and scientific integrity. In the spirit 

of Executive Order 13563, the CFPB has consulted 

with the Office of Management and Budget 

regarding this interim final rule. 

actions and the findings of fact relied 

upon. 

In accordance with section 1053 of 

the Act, this section provides that, at the 

expiration of the time permitted for the 

filing of reply briefs with the Director, 

the Executive Secretary will notify the 

parties that the case has been submitted 

for final Bureau decision by the 

Director. The Director will then issue a 

final decision and order within 90 days 

of such notification to the parties. This 

policy ensures a timely final resolution 

to all administrative adjudications. 

Copies of final decisions and orders 

by the Director will be served on each 

party, upon other persons required by 

statute, and, if directed by the Director 

or required by statute, upon any 

appropriate state or Federal supervisory 

authority. The final decision and order 

will also be published on the Bureau’s 

Web site or as otherwise deemed 

appropriate by the Bureau. 

Section 1081.406 Reconsideration 

This section permits parties to file 

petitions for reconsideration of a final 

decision and order within 14 days after 

service of the decision and order. The 

Bureau has adopted the practice set 

forth in the SEC Rules, 17 CFR 201.470, 

pursuant to which no response to a 

petition for reconsideration will be filed 

unless requested by the Director, and 

the Bureau has added a provision 

providing that the Director will request 

such a response before granting any 

motion for reconsideration. This is 

intended to lessen the burden on 

prevailing parties while preserving their 

opportunity to be heard if the Director 

is considering granting a motion for 

reconsideration. 

Section 1081.407 Effective Date; Stays 

Pending Judicial Review 

This section governs the effective date 

of the Director’s final orders. We have 

incorporated the requirement in section 

1053(b) of the Act that orders to cease 

and desist shall become effective 30 

days after the date of service of the 

Director’s final decision and order. 

This section also contains the rules 

and procedures regarding stays of 

Bureau orders. Any party subject to a 

final order, other than a consent order, 

may apply to the Director for a stay of 

all or part of that order pending judicial 

review. Such a motion must be made 

within 30 days of service of the 

Director’s final decision and order. A 

motion for a stay shall address the 

likelihood of the movant’s success on 

appeal, whether the movant will suffer 

irreparable harm if a stay is not granted, 

the degree of injury to other parties if a 

stay is granted, and why the stay is in 

the public interest. 

Finally, this section adopts the 

provision from the Uniform Rules, 12 

CFR 19.41, providing that the 

commencement of proceedings for 

judicial review of a final decision and 

order of the Director does not, unless 

specifically ordered by the Director or a 

reviewing court, operate as a stay of any 

order issued by the Director. 

C. Procedural Requirements 

1. Regulatory Requirements 

The Rules relate solely to agency 

procedure and practice and, thus, are 

not subject to the notice and comment 

requirements of the APA. See 5 U.S.C. 

553(b). Although the Rules are exempt 

from these requirements, the Bureau 

invites comment on them. Because no 

notice of proposed rulemaking is 

required, the requirements of the 

Regulatory Flexibility Act, 5 U.S.C. 

601(2) do not apply. 

2. Section 1022(b)(2) Provisions 

The CFPB has conducted an analysis 

of benefits, costs, and impacts 3 and 

consulted with the prudential 

regulators, the Department of Housing 

and Urban Development, the Securities 

and Exchange Commission, the 

Department of Justice, and the Federal 

Trade Commission, including with 

respect to whether the Rules are 

consistent with any relevant prudential, 

market, and systemic objectives 

administered by such agencies.4

The Bureau concludes that the Rules 

will benefit consumers and covered 

persons alike. The Rules do not impose 

any obligations on consumers or 

covered persons, nor do they have any 

direct relevance to consumers’ access to 

consumer financial products and 

services. Rather, they provide a clear, 

efficient mechanism for the conduct of 

adjudication proceedings, which 

benefits consumers because the Rules 

offer a systematic process for protecting 

them from unlawful behavior. The Rules 

are intended to provide an expeditious 

decision-making process, which will 

benefit both consumers and covered 

persons. The Rules adopt an affirmative 

disclosure approach to fact discovery, 

pursuant to which the Bureau will make 

available to respondents the information 

obtained by the Division of Enforcement 

from persons not employed by the 

Bureau prior to the institution of 

proceedings, in connection with the 

investigation leading to the institution 

of proceedings. This affirmative 

disclosure obligation substitutes for the 

traditional civil discovery process, 

which can be both time-consuming and 

expensive. The Bureau believes that the 

Rules, on the whole, will afford covered 

persons with a relatively inexpensive 

way to have their cases heard. The Rules 

are based upon, and drawn from, 

existing rules of the prudential 

regulators, the Federal Trade 

Commission, and the Securities and 

Exchange Commission. Their grounding 

in rules likely familiar to practitioners 

should further reduce the expense of 

administrative adjudication for covered 

persons. 

Further, the Rules have no unique 

impact on insured depository 

institutions or insured credit unions 

with less than $10 billion in assets 

described in section 1026(a) of the Act, 

and do not have a unique impact on 

rural consumers. 

List of Subjects in 12 CFR Part 1801 

Administrative practice and 

procedure, Banks, banking, Consumer 

protection, Credit, Credit unions, 

Federal Reserve System, Law 

enforcement, National banks, Savings 

associations, Trade practices. 

For the reasons set forth above, the 

Bureau of Consumer Financial 

Protection adds part 1081 to 12 CFR 

Chapter X to read as set forth below. 

TITLE 12—BANKS AND BANKING 

CHAPTER X—BUREAU OF CONSUMER 

FINANCIAL PROTECTION 

PART 1081—RULES OF PRACTICE 

FOR ADJUDICATION PROCEEDINGS 

Subpart A—General Rules 

Sec. 

1081.100 Scope of the rules of practice 

1081.101 Expedition and fairness of 

proceedings 

1081.102 Rules of construction 

1081.103 Definitions 

1081.104 Authority of the hearing officer 

1081.105 Assignment, substitution, 

performance, disqualification of hearing 

officer 

1081.106 Deadlines 


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1081.107 Appearance and practice in 

adjudication proceedings 

1081.108 Good faith certification 

1081.109 Conflict of interest 

1081.110 Ex parte communication 

1081.111 Filing of papers 

1081.112 Formal requirements as to papers 

filed 

1081.113 Service of papers 

1081.114 Construction of time limits 

1081.115 Change of time limits 

1081.116 Witness fees and expenses 

1081.117 Bureau’s right to conduct 

examination, collect information 

1081.118 Collateral attacks on adjudication 

proceedings 

1081.119 Confidential information; 

protective orders 

1081.120 Settlement 

1081.121 Cooperation with other agencies 

Subpart B—Initiation of Proceedings and 

Prehearing Rules 

1081.200 Commencement of proceeding 

and contents of notice of charges 

1081.201 Answer 

1081.202 Amended pleadings 

1081.203 Scheduling conference 

1081.204 Consolidation and severance of 

actions 

1081.205 Non-dispositive motions 

1081.206 Availability of documents for 

inspection and copying 

1081.207 Production of witness statements 

1081.208 Subpoenas 

1081.209 Deposition of witness unavailable 

for hearing 

1081.210 Expert discovery 

1081.211 Interlocutory review 

1081.212 Dispositive motions 

1081.213 Partial summary disposition 

1081.214 Prehearing conferences 

1081.215 Prehearing submissions 

1081.216 Amicus participation 

Subpart C—Hearings 

1081.300 Public hearings 

1081.301 Failure to appear 

1081.302 Conduct of hearings 

1081.303 Evidence 

1081.304 Record of the hearing 

1081.305 Post-hearing filings 

1081.306 Record in proceedings before 

hearing officer; retention of documents; 

copies 

Subpart D—Decision and Appeals 

1081.400 Recommended decision of the 

hearing officer 

1081.401 Transmission of documents to 

Director; record index; certification 

1081.402 Notice of appeal; review by the 

Director 

1081.403 Briefs filed with the Director 

1081.404 Oral argument before the Director 

1081.405 Decision of the Director 

1081.406 Reconsideration 

1081.407 Effective date; stays pending 

judicial review 

Authority: Pub. L. 111–203, Title X. 

Subpart A—General Rules 

§ 1081.100 Scope of the rules of practice. 

This part prescribes rules of practice 

and procedure applicable to 

adjudication proceedings authorized by 

section 1053 of the Consumer Financial 

Protection Act of 2010 (‘‘Act’’) to ensure 

or enforce compliance with the 

provisions of the Act, rules prescribed 

by the Bureau under the Act, and any 

other Federal law or regulation that the 

Bureau is authorized to enforce. These 

rules of practice do not govern the 

conduct of Bureau investigations, 

investigational hearings or other 

proceedings that do not arise from 

proceedings after a notice of charges. 

§ 1081.101 Expedition and fairness of 

proceedings. 

To the extent practicable, consistent 

with requirements of law, the Bureau’s 

policy is to conduct such adjudication 

proceedings fairly and expeditiously. In 

the conduct of such proceedings, the 

hearing officer and counsel for all 

parties shall make every effort at each 

stage of a proceeding to avoid delay. 

With the consent of the parties, the 

Director, at any time, or the hearing 

officer at any time prior to the filing of 

his or her recommended decision, may 

shorten any time limit prescribed by 

this part. 

§ 1081.102 Rules of construction. 

For the purposes of this part: 

(a) Any term in the singular includes 

the plural, and the plural includes the 

singular, if such use would be 

appropriate; 

(b) Any use of a masculine, feminine, 

or neutral gender encompasses all three, 

if such use would be appropriate; 

(c) Unless context requires otherwise, 

a party’s counsel of record, if any, may, 

on behalf of that party, take any action 

required to be taken by the party. 

(d) To the extent this part uses terms 

defined by the Act, such terms shall 

have the same meaning as set forth in 

the Act, unless defined differently by 

§ 1081.103. 

§ 1081.103 Definitions. 

For the purposes of this part, unless 

explicitly stated to the contrary: 

Act means the Consumer Financial 

Protection Act of 2010, as amended, 

Public Law No. 111–203 (July 21, 2010), 

Title X, 12 U.S.C. 5481 et seq. 

Adjudication proceeding means a 

proceeding conducted pursuant to 

section 1053 of the Act and intended to 

lead to the formulation of a final order 

other than a temporary cease and desist 

order issued pursuant to section 1053(c) 

of the Act. 

Bureau means the Bureau of 

Consumer Financial Protection. 

Chief hearing officer means the 

hearing officer charged with assigning 

hearing officers to specific proceedings, 

in the event there is more than one 

hearing officer available to the Bureau. 

Counsel means any attorney 

representing a party or any other person 

representing a party pursuant to 

§ 1081.107. 

Decisional employee means any 

employee of the Bureau who has not 

engaged in an investigative or 

prosecutorial role in a proceeding and 

who may assist the Director or the 

hearing officer, respectively, in 

preparing orders, recommended 

decisions, decisions, and other 

documents under this part. 

Director means the Director of the 

Bureau or a person authorized to 

perform the functions of the Director in 

accordance with the law. 

Division of Enforcement means the 

division of the Bureau responsible for 

enforcement of Federal consumer 

financial law. 

Enforcement Counsel means any 

individual who files a notice of 

appearance as counsel on behalf of the 

Bureau in an adjudication proceeding. 

Executive Secretary means the 

Executive Secretary of the Bureau. 

Final order means an order issued by 

the Bureau with or without the consent 

of the respondent, which has become 

final, without regard to the pendency of 

any petition for reconsideration or 

review. 

General Counsel means the General 

Counsel of the Bureau or any Bureau 

employee to whom the General Counsel 

has delegated authority to act under this 

part. 

Hearing officer means an 

administrative law judge or any other 

person duly authorized to preside at a 

hearing. 

Notice of charges means the pleading 

that commences an adjudication 

proceeding, as described in § 1081.200 

of this part. 

Party means the Bureau and any 

person named as a party in any notice 

of charges issued pursuant to this part. 

Person means an individual, 

partnership, company, corporation, 

association (incorporated or 

unincorporated), trust, estate, 

cooperative organization, or other 

entity. 

Person employed by the Bureau 

means Bureau employees, contractors, 

agents, and others acting for or on behalf 

of the Bureau, or at its direction, 

including consulting experts. 

Respondent means any party other 

than the Bureau. 

State means any State, territory, or 

possession of the United States, the 

District of Columbia, the 

Commonwealth of Puerto Rico, the 

Commonwealth of the Northern Mariana 


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Islands, Guam, American Samoa, or the 

United States Virgin Islands or any 

federally recognized Indian tribe, as 

defined by the Secretary of the Interior 

under section 104(a) of the Federally 

Recognized Indian Tribe List Act of 

1994 (25 U.S.C. 479a–1(a)). 

§ 1081.104 Authority of the hearing officer. 

(a) General Rule. The hearing officer 

shall have all powers necessary to 

conduct a proceeding in a fair and 

impartial manner and to avoid 

unnecessary delay. No provision of this 

part shall be construed to limit the 

powers of the hearing officers provided 

by the Administrative Procedure Act, 5 

U.S.C. 556, 557. 

(b) Powers. The powers of the hearing 

officer include but are not limited to the 

power: 

(1) To administer oaths and 

affirmations; 

(2) To issue subpoenas, subpoenas 

duces tecum, and protective orders, as 

authorized by this part, and to quash or 

modify any such subpoenas or orders; 

(3) To take depositions or cause 

depositions to be taken; 

(4) To receive relevant evidence and 

to rule upon the admission of evidence 

and offers of proof; 

(5) To regulate the course of a 

proceeding and the conduct of parties 

and their counsel; 

(6) To reject written submissions that 

fail to comply with the requirements of 

this part, and to deny confidential status 

to documents and testimony without 

prejudice until a party complies with all 

relevant rules; 

(7) To hold conferences for 

settlement, simplification of the issues, 

or any other proper purpose and require 

the attendance at any such conference of 

at least one representative of each party 

who has authority to negotiate 

concerning the resolution of issues in 

controversy; 

(8) To inform the parties as to the 

availability of one or more alternative 

means of dispute resolution, and to 

encourage the use of such methods; 

(9) To certify questions to the Director 

for his or her determination in 

accordance with the rules of this part; 

(10) To consider and rule upon, as 

justice may require, all procedural and 

other motions appropriate in 

adjudication proceedings; 

(11) To issue and file recommended 

decisions; 

(12) To recuse himself or herself by 

motion made by a party or on his or her 

own motion; 

(13) To issue such sanctions against 

parties or their counsel as may be 

necessary to deter repetition of 

sanctionable conduct or comparable 

conduct by others similarly situated, as 

provided for in this part or as otherwise 

necessary to the appropriate conduct of 

hearings and related proceedings, 

provided that no sanction shall be 

imposed before providing the 

sanctioned person an opportunity to 

show cause why no such sanction 

should issue; and 

(14) To do all other things necessary 

and appropriate to discharge the duties 

of a presiding officer. 

§ 1081.105 Assignment, substitution, 

performance, disqualification of hearing 

officer. 

(a) How assigned. In the event that 

more than one hearing officer is 

available to the Bureau for the conduct 

of proceedings under this part, the 

presiding hearing officer shall be 

designated by the chief hearing officer, 

who shall notify the parties of the 

hearing officer designated. 

(b) Interference. Hearing officers shall 

not be responsible or subject to the 

supervision or direction of any officer, 

employee, or agent engaged in the 

performance of investigative or 

prosecuting functions for the Bureau, 

and all direction by the Bureau to the 

hearing officer concerning any 

adjudication proceedings shall appear 

in and be made part of the record. 

(c) Disqualification of hearing officers. 

(1) When a hearing officer deems 

himself or herself disqualified to preside 

in a particular proceeding, he or she 

shall issue a notice stating that he or she 

is withdrawing from the matter and 

setting forth the reasons therefore. 

(2) Any party who has a reasonable, 

good faith basis to believe that a hearing 

officer has a personal bias, or is 

otherwise disqualified from hearing a 

case, may make a motion to the hearing 

officer that the hearing officer withdraw. 

The motion shall be accompanied by an 

affidavit setting forth the facts alleged to 

constitute grounds for disqualification. 

Such motion shall be filed at the earliest 

practicable time after the party learns, or 

could reasonably have learned, of the 

alleged grounds for disqualification. If 

the hearing officer does not disqualify 

himself or herself within 10 days, he or 

she shall certify the motion to the 

Director pursuant to § 1081.211, 

together with any statement he or she 

may wish to have considered by the 

Director. The Director shall promptly 

determine the validity of the grounds 

alleged, either directly or on the report 

of another hearing officer appointed to 

conduct a hearing for that purpose, and 

shall either direct the reassignment of 

the matter or confirm the hearing 

officer’s continued role in the matter. 

(d) Unavailability of hearing officer. 

In the event that the hearing officer 

withdraws or is otherwise unable to 

perform the duties of the hearing officer, 

the chief hearing officer or the Director 

shall designate another hearing officer 

to serve. 

§ 1081.106 Deadlines. 

The deadlines for action by the 

hearing officer established by 

§§ 1081.203, 1081.205, 1081.211, 

1081.212, and 1081.400, or elsewhere in 

this part, confer no substantive rights on 

respondents. 

§ 1081.107 Appearance and practice in 

adjudication proceedings. 

(a) Appearance before the Bureau or 

a hearing officer. 

(1) By attorneys. Any member in good 

standing of the bar of the highest court 

of any state may represent others before 

the Bureau if such attorney is not 

currently suspended or debarred from 

practice before the Bureau. 

(2) By non-attorneys. So long as such 

individual is not currently suspended or 

debarred from practice before the 

Bureau: 

(i) An individual may appear on his 

or her own behalf; 

(ii) A member of a partnership may 

represent the partnership; 

(iii) A duly authorized officer of a 

corporation, trust or association may 

represent the corporation, trust or 

association; and 

(iv) A duly authorized officer or 

employee of any government unit, 

agency, or authority may represent that 

unit, agency, or authority. 

(3) Notice of appearance. Any 

individual acting as counsel on behalf of 

a party, including the Bureau, shall file 

a notice of appearance at or before the 

time that the individual submits papers 

or otherwise appears on behalf of a 

party in the adjudication proceeding. 

The notice of appearance must include 

a written declaration that the individual 

is currently qualified as provided in 

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

and is authorized to represent the 

particular party, and, if applicable, 

include the attorney’s jurisdiction of 

admission or qualification, attorney 

identification number, and a statement 

by the appearing attorney attesting to 

his or her good standing within the legal 

profession. By filing a notice of 

appearance on behalf of a party in an 

adjudication proceeding, the counsel 

agrees and represents that he or she is 

authorized to accept service on behalf of 

the represented party and that, in the 

event of withdrawal from 

representation, he or she will, if 

required by the hearing officer, continue 


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to accept service until a new counsel 

has filed a notice of appearance or until 

the represented party indicates that he 

or she will proceed on a pro se basis. 

The notice of appearance shall provide 

the representative’s email address, 

telephone number and business address 

and, if different from the 

representative’s addresses, electronic or 

U.S. mail addresses at which the 

represented party may be served. 

(b) Sanctions. Dilatory, obstructionist, 

egregious, contemptuous or 

contumacious conduct at any phase of 

any adjudication proceeding may be 

grounds for exclusion or suspension of 

counsel from the proceeding. An order 

imposing a sanction must describe the 

sanctioned conduct and explain the 

basis for the sanction. 

(c) Standards of conduct; disbarment. 

(1) All attorneys practicing before the 

Bureau shall conform to the standards of 

ethical conduct required by the bars of 

which the attorneys are members. 

(2) If for good cause shown, the 

Director believes that any attorney is not 

conforming to such standards, or that an 

attorney or counsel to a party has been 

otherwise engaged in conduct 

warranting disciplinary action, the 

Director may issue an order requiring 

such person to show cause why he 

should not be suspended or disbarred 

from practice before the Bureau. The 

alleged offender shall be granted due 

opportunity to be heard in his or her 

own defense and may be represented by 

counsel. Thereafter, if warranted by the 

facts, the Director may issue against the 

attorney or counsel an order of 

reprimand, suspension, or disbarment. 

§ 1081.108 Good faith certification. 

(a) General requirement. Every filing 

or submission of record following the 

issuance of a notice of charges shall be 

signed by at least one counsel of record 

in his or her individual name and shall 

state counsel’s address, email address, 

and telephone number. A party who 

acts as his or her own counsel shall sign 

his or her individual name and state his 

or her address, e-mail address, and 

telephone number on every filing or 

submission of record. Papers filed by 

electronic transmission may be signed 

with an ‘‘/s/’’ notation, which shall be 

deemed the signature of the party or 

representative whose name appears 

below the signature line. 

(b) Effect of signature. 

(1) The signature of counsel or a party 

shall constitute a certification that: the 

counsel or party has read the filing or 

submission of record; to the best of his 

or her knowledge, information, and 

belief formed after reasonable inquiry, 

the filing or submission of record is 

well-grounded in fact and is warranted 

by existing law or a good faith argument 

for the extension, modification, or 

reversal of existing law; and the filing or 

submission of record is not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

(2) If a filing or submission of record 

is not signed, the hearing officer shall 

strike the filing or submission of record, 

unless it is signed promptly after the 

omission is called to the attention of the 

filer. 

(c) Effect of making oral motion or 

argument. The act of making any oral 

motion or oral argument by any counsel 

or party constitutes a certification that 

to the best of his or her knowledge, 

information, and belief formed after 

reasonable inquiry, his or her statements 

are well-grounded in fact and are 

warranted by existing law or a good 

faith argument for the extension, 

modification, or reversal of existing law, 

and are not made for any improper 

purpose, such as to harass or to cause 

unnecessary delay or needless increase 

in the cost of litigation. 

(d) Sanctions. Counsel or a party that 

fails to abide by the requirements of this 

section may be subject to sanctions 

pursuant to § 1081.104(b)(13) of this 

part. 

§ 1081.109 Conflict of interest. 

(a) Conflict of interest in 

representation. No person shall appear 

as counsel for another person in an 

adjudication proceeding if it reasonably 

appears that such representation may be 

materially limited by that counsel’s 

responsibilities to a third person or by 

the counsel’s own interests. The hearing 

officer may take corrective measures at 

any stage of a proceeding to cure a 

conflict of interest in representation, 

including the issuance of an order 

limiting the scope of representation or 

disqualifying an individual from 

appearing in a representative capacity 

for the duration of the proceeding. 

(b) Certification and waiver. If any 

person appearing as counsel represents 

two or more parties to an adjudication 

proceeding or also represents a nonparty on a matter relevant to an issue in 

the proceeding, counsel must certify in 

writing at the time of filing the notice 

of appearance required by 

§ 1081.107(a)(3): 

(1) That the counsel has personally 

and fully discussed the possibility of 

conflicts of interest with each such 

party and non-party; and 

(2) That each such party and/or nonparty waives any right it might 

otherwise have had to assert any known 

conflicts of interest or to assert any 

conflicts of interest during the course of 

the proceeding. 

§ 1081.110 Ex parte communication. 

(a) Definitions. 

(1) For purposes of this section, ex 

parte communication means any 

material oral or written communication 

relevant to the merits of an adjudication 

proceeding that was neither on the 

record nor on reasonable prior notice to 

all parties that takes place between: 

(i) An interested person not employed 

by the Bureau (including such person’s 

counsel); and 

(ii) The hearing officer handling the 

proceeding, the Director, or a decisional 

employee. 

(2) Exception. A request for status of 

the proceeding does not constitute an ex 

parte communication. 

(3) Pendency of an adjudication 

proceeding means the time from when 

the Bureau issues a notice of charges, 

unless the person responsible for the 

communication has knowledge that a 

notice of charges will be or is likely to 

be issued, in which case the pendency 

of an adjudication shall commence at 

the time of his or her acquisition of such 

knowledge, or from when an order by a 

court of competent jurisdiction 

remanding a Bureau decision and order 

for further proceedings becomes 

effective, until the time the Director 

enters his or her final decision and 

order in the proceeding and the time 

permitted to seek reconsideration of that 

decision and order has elapsed. For 

purposes of this section, an order of 

remand by a court of competent 

jurisdiction shall be deemed to become 

effective when the Bureau determines 

not to file an appeal or a petition for a 

writ of certiorari, or when the time for 

filing such an appeal or petition has 

expired without an appeal or petition 

having been filed, or when such a 

petition has been denied. If a petition 

for reconsideration of a Bureau decision 

is filed pursuant to § 1081.406, the 

matter shall be considered to be a 

pending adjudication proceeding until 

the time the Bureau enters an order 

disposing of the petition. 

(b) Prohibited ex parte 

communications. During the pendency 

of an adjudication proceeding, except to 

the extent required for the disposition of 

ex parte matters as authorized by law or 

as otherwise authorized by this part: 

(1) No interested person not employed 

by the Bureau shall make or knowingly 

cause to be made to the Director, or to 

the hearing officer, or to any decisional 

employee, an ex parte communication; 

and 


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(2) The Director, the hearing officer, 

or any decisional employee shall not 

make or knowingly cause to be made to 

any interested person not employed by 

the Bureau any ex parte communication. 

(c) Procedure upon occurrence of ex 

parte communication. If an ex parte 

communication prohibited by paragraph 

(b) of this section is received by the 

hearing officer, the Director, or any 

decisional employee, that person shall 

cause all such written communications 

(or, if the communication is oral, a 

memorandum stating the substance of 

the communication) to be placed on the 

record of the proceeding and served on 

all parties. All other parties to the 

proceeding shall have an opportunity, 

within 10 days of receipt of service of 

the ex parte communication, to file 

responses thereto and to recommend 

any sanctions, in accordance with 

paragraph (d) of this section, that they 

believe to be appropriate under the 

circumstances. 

(d) Sanctions. 

(1) Adverse action on claim. Upon 

receipt of an ex parte communication 

knowingly made or knowingly caused to 

be made by a party and prohibited by 

paragraph (b) of this section, the 

Director or hearing officer, as 

appropriate, may, to the extent 

consistent with the interests of justice 

and the policy of the underlying 

statutes, require the party to show cause 

why his claim or interest in the 

proceeding should not be dismissed, 

denied, disregarded, or otherwise 

adversely affected on account of such 

violation. 

(2) Discipline of persons practicing 

before the Bureau. The Director may, to 

the extent not prohibited by law, 

censure, suspend, or revoke the 

privilege to practice before the Bureau 

of any person who makes, or solicits the 

making of, an unauthorized ex parte 

communication. 

(e) Separation of functions. Except to 

the extent required for the disposition of 

ex parte matters as authorized by law, 

the hearing officer may not consult a 

person or party on any matter relevant 

to the merits of the adjudication, unless 

on notice and opportunity for all parties 

to participate. An employee or agent 

engaged in the performance of 

investigative or prosecuting functions 

for the Bureau in a case, other than the 

Director, 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. 

§ 1081.111 Filing of papers. 

(a) Filing. The following papers must 

be filed by parties in an adjudication 

proceeding: the notice of charges, 

notices of appearance, answer, motion, 

brief, request for issuance or 

enforcement of a subpoena, response, 

opposition, reply, notice of appeal, or 

petition for reconsideration. The hearing 

officer shall file all written orders, 

rulings, notices, or requests. Any papers 

required to be filed shall be filed with 

the Executive Secretary, except as 

otherwise provided herein. 

(b) Manner of filing. Unless otherwise 

specified by the Director or the hearing 

officer, filing may be accomplished by: 

(1) Electronic transmission upon any 

conditions specified by the Director or 

the hearing officer, or 

(2) Any of the following methods if 

respondent demonstrates electronic 

filing is not practicable: 

(i) Personal delivery to the Bureau’s 

headquarters; 

(ii) Delivery to a reliable commercial 

courier service or overnight delivery 

service; or 

(iii) Mailing the papers by first class, 

registered, certified, or Express mail. 

§ 1081.112 Formal requirements as to 

papers filed. 

(a) Form. All papers filed by parties 

must: 

(1) Set forth the name, address, 

telephone number, and e-mail address 

of the counsel or party making the 

filing; 

(2) Be double-spaced (except for 

single-spaced footnotes and singlespaced indented quotations) and printed 

or typewritten on 81⁄2; × 11 inch paper 

in 12-point or larger font; 

(3) Include at the head of the paper, 

or on a title page, a caption setting forth 

the title of the case, the docket number 

of the proceeding, and a brief 

descriptive title indicating the purpose 

of the paper; 

(4) Be paginated with margins at least 

1 inch wide; and 

(5) If filed by other than electronic 

means, be stapled, clipped or otherwise 

fastened in a manner that lies flat when 

opened. 

(b) Signature. All papers must be 

dated and signed as provided in 

§ 1081.108. 

(c) Number of copies. Unless 

otherwise specified by the Director or 

the hearing officer, one copy of all 

documents and papers shall be filed if 

filing is by electronic transmission. If 

filing is accomplished by any other 

means, an original and one copy of all 

documents and papers shall be filed, 

except that only one copy of transcripts 

of testimony and exhibits must be filed. 

(d) Authority to reject document for 

filing. The Executive Secretary or the 

hearing officer may reject a document 

for filing that fails to comply with these 

rules. 

(e) Sensitive personal information. 

Sensitive personal information, 

including but not limited to an 

individual’s Social Security number, 

taxpayer identification number, 

financial account number, credit card or 

debit card number, driver’s license 

number, state-issued identification 

number, passport number, date of birth 

(other than year), and any sensitive 

health information identifiable by 

individual, such as an individual’s 

medical records, shall not be included 

in, and must be redacted or omitted 

from, filings where the filing party 

determines that such information is not 

relevant or otherwise necessary for the 

conduct of the proceeding. 

(f) Confidential treatment of 

information in certain filings. A party 

seeking confidential treatment of 

information contained in a filing must 

contemporaneously file either a motion 

requesting such treatment in accordance 

with § 1081.119 of this part or a copy of 

the order from the Director, hearing 

officer, or federal court authorizing such 

confidential treatment. The filing must 

be accompanied by: 

(1) A complete, sealed copy of the 

documents containing the materials as 

to which confidential treatment is 

sought, with the allegedly confidential 

material clearly marked as such, and 

with the first page of the document 

labeled ‘‘Under Seal.’’ If the movant 

seeks or has obtained a protective order 

against disclosure to other parties as 

well as the public, copies of the 

documents shall not be served on other 

parties; and 

(2) An expurgated copy of the 

materials as to which confidential 

treatment is sought, with the allegedly 

confidential materials redacted. The 

redacted version shall indicate any 

omissions with brackets or ellipses, and 

its pagination and depiction of text on 

each page shall be identical to that of 

the sealed version. 

(g) Certificate of service. Any papers 

filed in an adjudicative proceeding shall 

contain proof of service on all other 

parties or their counsel in the form of a 

statement of the date and manner of 

service and of the names of the persons 

served, certified by the person who 

made service. The certificate of service 

must be affixed to the papers filed and 

signed in accordance with § 1081.108 of 

this part. 


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§ 1081.113 Service of papers. 

(a) When required. In every 

adjudication proceeding, each paper 

required to be filed by § 1081.111 of this 

part shall be served upon each party in 

the proceeding in accordance with the 

provisions of this section; provided, 

however, that absent an order to the 

contrary, no service shall be required for 

motions which are to be heard ex parte. 

(b) Upon a person represented by 

counsel. Whenever service is required to 

be made upon a person represented by 

counsel who has filed a notice of 

appearance pursuant to § 1081.107(a)(3) 

of this part, service shall be made 

pursuant to paragraph (c) of this section 

upon counsel, unless service upon the 

person represented is ordered by the 

Director or the hearing officer, as 

appropriate. 

(c) Method of service. Except as 

provided in paragraph (d) of this 

section, service shall be made by 

delivering a copy of the filing by one of 

the following methods: 

(1) Transmitting the papers by 

electronic transmission where the 

persons so serving each other have 

consented to service by specified 

electronic transmission and provided 

the Bureau and the parties with notice 

of the means for service by electronic 

transmission (e.g., email address or 

facsimile number); 

(2) Personal service. Handing a copy 

to the person required to be served; or 

leaving a copy at the person’s office 

with a clerk or other person in charge 

thereof, or, if there is no one in charge, 

leaving it in a conspicuous place 

therein; or, if the office is closed or the 

person to be served has no office, 

leaving it at the person’s dwelling or 

usual place of abode with some person 

of suitable age and discretion then 

residing therein; 

(3) Mailing the papers through the 

U.S. Postal Service by first class, 

registered, or certified mail or Express 

Mail delivery addressed to the person; 

or 

(4) Sending the papers through a 

commercial courier service or express 

delivery service. 

(d) Service of certain papers by the 

Bureau. Service of the notice of charges, 

recommended decisions and final 

orders of the Bureau shall be effected as 

follows: 

(1) Service of a notice of charges. 

(i) To individuals. Notice of a 

proceeding shall be made to an 

individual by delivering a copy of the 

notice of charges to the individual or to 

an agent authorized by appointment or 

by law to receive such notice. Delivery, 

for purposes of this paragraph, means 

handing a copy of the notice to the 

individual; or leaving a copy at the 

individual’s office with a clerk or other 

person in charge thereof; or leaving a 

copy at the individual’s dwelling house 

or usual place of abode with some 

person of suitable age and discretion 

then residing therein; or sending a copy 

of the notice addressed to the individual 

by U.S. Postal Service certified, 

registered or Express Mail, or by thirdparty commercial carrier, for overnight 

delivery and obtaining a confirmation of 

receipt. 

(ii) To corporations or entities. Notice 

of a proceeding shall be made to a 

person other than a natural person by 

delivering a copy of the notice of 

charges to an officer, managing or 

general agent, or any other agent 

authorized by appointment or law to 

receive such notice, by any method 

specified in paragraph (d)(1)(i) of this 

section. 

(iii) Upon persons registered with the 

Bureau. In addition to any other method 

of service specified in paragraph (d)(1) 

of this section, notice may be made to 

a person currently registered with the 

Bureau by sending a copy of the notice 

of charges addressed to the most recent 

business address shown on the person’s 

registration form by U.S. Postal Service 

certified, registered or Express Mail and 

obtaining a confirmation of attempted 

delivery. 

(iv) Upon persons in a foreign 

country. Notice of a proceeding to a 

person in a foreign country may be 

made by any method specified in 

paragraph (d)(1) of this section, or by 

any other method reasonably calculated 

to give notice, provided that the method 

of service used is not prohibited by the 

law of the foreign country. 

(v) Record of service. The Bureau 

shall maintain a record of service of the 

notice of charges on parties, identifying 

the party given notice, the method of 

service, the date of service, the address 

to which service was made, and the 

person who made service. If service is 

made in person, the certificate of service 

shall state, if available, the name of the 

individual to whom the notice of 

charges was given. If service is made by 

U.S. Postal Service certified or Express 

Mail, the Bureau shall maintain the 

confirmation of receipt or of attempted 

delivery. If service is made to an agent 

authorized by appointment to receive 

service, the certificate of service shall be 

accompanied by evidence of the 

appointment. 

(vi) Waiver of service. In lieu of 

service as set forth in paragraph (d)(1) 

of this section, the party may be 

provided a copy of the notice of charges 

by first class mail or other reliable 

means if a waiver of service is obtained 

from the party and placed in the record. 

(2) Service of recommended decisions 

and final orders. Recommended 

decisions issued by the hearing officer 

and final orders issued by the Bureau 

shall be served promptly on each party 

pursuant to any method of service 

authorized under paragraph (d)(1) of 

this section. Such decisions and orders 

may also be served by electronic 

transmission if the party to be served 

has agreed to accept such service in 

writing, signed by the party or its 

counsel, and has provided the Bureau 

with information concerning the 

manner of electronic transmission. 

§ 1081.114 Construction of time limits. 

(a) General rule. In computing any 

period of time prescribed by this part, 

by order of the Director or a hearing 

officer, or by any applicable statute, the 

date of the act or event that commences 

the designated period of time is not 

included. The last day so computed is 

included unless it is a Saturday, 

Sunday, or Federal holiday as set forth 

in 5 U.S.C. 6103(a). When the last day 

is a Saturday, Sunday, or Federal 

holiday, the period runs until the end of 

the next day that is not a Saturday, 

Sunday, or Federal holiday. 

Intermediate Saturdays, Sundays, and 

Federal holidays are included in the 

computation of time, except when the 

time period within which an act is to be 

performed is 10 days or less, not 

including any additional time allowed 

for in paragraph (c) of this section. 

(b) When papers are deemed to be 

filed or served. Filing and service are 

deemed to be effective: 

(1) In the case of personal service or 

same day commercial courier delivery, 

upon actual receipt by person served; 

(2) In the case of overnight 

commercial delivery service, U.S. 

Express Mail delivery, or first class, 

registered, or certified mail, upon 

deposit in or delivery to an appropriate 

point of collection; 

(3) In the case of electronic 

transmission, upon transmission. 

(c) Calculation of time for service and 

filing of responsive papers. Whenever a 

time limit is measured by a prescribed 

period from the service of any notice or 

paper, the applicable time limits are 

calculated as follows: 

(1) If service is made by first class, 

registered, or certified mail, add three 

calendar days to the prescribed period; 

(2) If service is made by express mail 

or overnight delivery service, add one 

calendar day to the prescribed period; or 

(3) If service is made by electronic 

transmission, add one calendar day to 

the prescribed period. 


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§ 1081.115 Change of time limits. 

(a) Except as otherwise provided by 

law, the hearing officer may, in any 

proceeding before him or her, for good 

cause shown, extend the time limits 

prescribed by this part or by any notice 

or order issued in the proceedings. After 

appeal to the Director pursuant to 

§ 1081.402, the Director may grant 

extensions of the time limits for good 

cause shown. Extensions may be 

granted at the motion of a party after 

notice and opportunity to respond is 

afforded all non-moving parties or on 

the Director’s or the hearing officer’s 

own motion, as appropriate. 

(b) Considerations in determining 

whether to extend time limits or grant 

postponements, adjournments and 

extensions. In considering all motions 

for extensions of time filed pursuant to 

paragraph (a) of this section, the 

Director or the hearing officer should 

adhere to a policy of strongly 

disfavoring granting such motions, 

except in circumstances where the 

moving party makes a strong showing 

that the denial of the motion would 

substantially prejudice its case. In 

determining whether to grant any 

motions, the Director or hearing officer, 

as appropriate, shall consider, in 

addition to any other relevant factors: 

(1) The length of the proceeding to 

date; 

(2) The number of postponements, 

adjournments or extensions already 

granted; 

(3) The stage of the proceedings at the 

time of the motion; 

(4) The impact of the motion on the 

hearing officer’s ability to complete the 

proceeding in the time specified by 

§ 1081.400(a); and 

(5) Any other matters as justice may 

require. 

(c) Time limit. Postponements, 

adjournments, or extensions of time for 

filing papers shall not exceed 21 days 

unless the Director or the hearing 

officer, as appropriate, states on the 

record or sets forth in a written order 

the reasons why a longer period of time 

is necessary. 

(d) No effect on deadline for 

recommended decision. The granting of 

any extension of time pursuant to this 

section shall not affect any deadlines set 

pursuant to § 1081.400(a). 

§ 1081.116 Witness fees and expenses. 

Respondents shall pay to witnesses 

subpoenaed for testimony or 

depositions on their behalf the same 

fees for attendance and mileage as are 

paid in the United States district courts 

in proceedings in which the United 

States is a party, provided that, in the 

case of a deposition subpoena addressed 

to a party, no witness fees or mileage 

need be paid. Fees for witnesses shall be 

tendered in advance by any respondent 

requesting the issuance of a subpoena, 

except that fees and mileage need not be 

tendered in advance where the Bureau 

is the party requesting the subpoena. 

The Bureau shall pay to witnesses 

subpoenaed for testimony or 

depositions on behalf of the Division of 

Enforcement the same fees for 

attendance and mileage as are paid in 

the United States district courts in 

proceedings in which the United States 

is a party, but the Bureau need not 

tender such fees in advance. 

§ 1081.117 Bureau’s right to conduct 

examination, collect information. 

Nothing contained in this part limits 

in any manner the right of the Bureau 

to conduct any examination, inspection, 

or visitation of any person, to conduct 

or continue any form of investigation 

authorized by law, to collect 

information in order to monitor the 

market for risks to consumers in the 

offering or provision of consumer 

financial products or services, or to 

otherwise gather information in 

accordance with law. 

§ 1081.118 Collateral attacks on 

adjudication proceedings. 

Unless a court of competent 

jurisdiction, or the Director for good 

cause, so directs, if an interlocutory 

appeal or collateral attack is brought in 

any court concerning all or any part of 

an adjudication proceeding, the 

challenged adjudication proceeding 

shall continue without regard to the 

pendency of that court proceeding. No 

default or other failure to act as directed 

in the adjudication proceeding within 

the times prescribed in this part shall be 

excused based on the pendency before 

any court of any interlocutory appeal or 

collateral attack. 

§ 1081.119 Confidential information; 

protective orders. 

(a) Procedure. In any adjudication 

proceeding, a party; any person who is 

the owner, subject, or creator of a 

document subject to subpoena or which 

may be introduced as evidence; or any 

witness who testifies at a hearing or in 

a deposition pursuant to § 1081.209 may 

file a motion requesting a protective 

order to limit from disclosure to other 

parties or to the public documents or 

testimony that contain confidential 

information. The motion should include 

a general summary or extract of the 

documents or testimony without 

revealing confidential details. A motion 

for confidential treatment of documents 

should be filed in accordance with 

§ 1081.112(f). 

(b) Basis for issuance. Documents and 

testimony introduced in a public 

hearing are presumed to be public. A 

motion for a protective order shall be 

granted only upon a finding that public 

disclosure will likely result in a clearly 

defined, serious injury to the person 

requesting confidential treatment or 

after finding that the material 

constitutes sensitive personal 

information, as defined in § 1081.112(e). 

(c) Requests for additional 

information supporting confidentiality. 

The hearing officer may require a 

movant under paragraph (a) of this 

section to furnish in writing additional 

information with respect to the grounds 

for confidentiality. Failure to supply the 

information so requested within five 

days from the date of receipt by the 

movant of a notice of the information 

required shall be deemed a waiver of the 

objection to public disclosure of that 

portion of the documents to which the 

additional information relates, unless 

the hearing officer shall otherwise order 

for good cause shown at or before the 

expiration of such 5-day period. 

(d) Confidentiality of documents 

pending decision. Pending a 

determination of a motion under this 

section, the documents as to which 

confidential treatment is sought and any 

other documents that would reveal the 

confidential information in those 

documents shall be maintained under 

seal and shall be disclosed only in 

accordance with orders of the hearing 

officer. Any order issued in connection 

with a motion under this section shall 

be public unless the order would 

disclose information as to which a 

protective order has been granted, in 

which case that portion of the order that 

would reveal the protected information 

shall be nonpublic. 

§ 1081.120 Settlement. 

(a) Availability. Any person who is 

notified that a proceeding may or will 

be instituted against him or her, or any 

party to a proceeding already instituted, 

may, at any time, propose in writing an 

offer of settlement. 

(b) Procedure. An offer of settlement 

shall state that it is made pursuant to 

this section; shall recite or incorporate 

as a part of the offer the provisions of 

paragraphs (c)(3) and (4) of this section; 

shall be signed by the person making 

the offer, not by counsel; and shall be 

submitted to Enforcement Counsel. 

(c) Consideration of offers of 

settlement. 

(1) Offers of settlement shall be 

considered when time, the nature of the 

proceedings, and the public interest 

permit. 


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(2) Any settlement offer shall be 

presented to the Director with a 

recommendation, except that, if the 

recommendation is unfavorable, the 

offer shall not be presented to the 

Director unless the person making the 

offer so requests. 

(3) By submitting an offer of 

settlement, the person making the offer 

waives, subject to acceptance of the 

offer: 

(i) All hearings pursuant to the 

statutory provisions under which the 

proceeding is to be or has been 

instituted; 

(ii) The filing of proposed findings of 

fact and conclusions of law; 

(iii) Proceedings before, and a 

recommended decision by, a hearing 

officer; 

(iv) All post-hearing procedures; 

(v) Judicial review by any court; and 

(vi) Any objection to the jurisdiction 

of the Bureau under section 1053 of the 

Act. 

(4) By submitting an offer of 

settlement the person further waives: 

(i) Such provisions of this part or 

other requirements of law as may be 

construed to prevent any Bureau 

employee from participating in the 

preparation of, or advising the Director 

as to, any order, opinion, finding of fact, 

or conclusion of law to be entered 

pursuant to the offer; and 

(ii) Any right to claim bias or 

prejudgment by the Director based on 

the consideration of or discussions 

concerning settlement of all or any part 

of the proceeding. 

(5) If the Director rejects the offer of 

settlement, the person making the offer 

shall be notified of the Director’s action 

and the offer of settlement shall be 

deemed withdrawn. The rejected offer 

shall not constitute a part of the record 

in any proceeding against the person 

making the offer, provided, however, 

that rejection of an offer of settlement 

does not affect the continued validity of 

waivers pursuant to paragraph (c)(4) of 

this section with respect to any 

discussions concerning the rejected 

offer of settlement. 

§ 1081.121 Cooperation with other 

agencies. 

It is the policy of the Bureau to 

cooperate with other governmental 

agencies to avoid unnecessary overlap 

or duplication of regulatory functions. 

Subpart B—Initiation of Proceedings 

and Prehearing Rules 

§ 1081.200 Commencement of proceeding 

and contents of notice of charges. 

(a) Commencement of proceeding. A 

proceeding governed by this part is 

commenced by filing of a notice of 

charges by the Bureau in accordance 

with § 1081.111 of this part. The notice 

of charges must be served by the Bureau 

upon the respondent in accordance with 

§ 1081.113(d)(1) of this part. 

(b) Contents of a notice of charges. 

The notice of charges must set forth: 

(1) The legal authority for the 

proceeding and for the Bureau’s 

jurisdiction over the proceeding; 

(2) A statement of the matters of fact 

and law showing that the Bureau is 

entitled to relief; 

(3) A proposed order or prayer for an 

order granting the requested relief; 

(4) The time and place of the hearing 

as required by law or regulation; 

(5) The time within which to file an 

answer as required by law or regulation; 

(6) That the answer shall be filed and 

served in accordance with subpart A of 

this part; and 

(7) The docket number for the 

adjudication proceeding. 

(c) Publication of notice of charges. 

Unless otherwise ordered by the Bureau, 

the notice of charges shall be given 

general circulation by release to the 

public, by publication on the Bureau’s 

Web site and, where directed by the 

hearing officer or the Director, by 

publication in the Federal Register. The 

Bureau may publish any notice of 

charges after 10 days from the date of 

service except if there is a pending 

motion for a protective order filed 

pursuant to § 1081.119. 

(d) Voluntary dismissal. 

(1) Without an order. The Bureau may 

voluntarily dismiss an adjudication 

proceeding without an order entered by 

a hearing officer by filing either: 

(i) A notice of dismissal before the 

respondent(s) serves an answer; or 

(ii) A stipulation of dismissal signed 

by all parties who have appeared. 

(2) Effect. Unless the notice or 

stipulation states otherwise, the 

dismissal is without prejudice, and does 

not operate as an adjudication on the 

merits. 

§ 1081.201 Answer. 

(a) When. Within 14 days of service of 

the notice of charges, respondent shall 

file an answer as designated in the 

notice of charges. 

(b) Content of answer. An answer 

must specifically respond to each 

paragraph or allegation of fact contained 

in the notice of charges and must admit, 

deny, or state that the party lacks 

sufficient information to admit or deny 

each allegation of fact. A statement of 

lack of information has the effect of a 

denial. Denials must fairly meet the 

substance of each allegation of fact 

denied; general denials are not 

permitted. When a respondent denies 

part of an allegation, that part must be 

denied and the remainder specifically 

admitted. Any allegation of fact in the 

notice of charges which is not denied in 

the answer must be deemed admitted 

for purposes of the proceeding. A 

respondent is not required to respond to 

the portion of a notice of charges that 

constitutes the prayer for relief or 

proposed order. The answer must set 

forth affirmative defenses, if any, 

asserted by the respondent. 

(c) If the allegations of the complaint 

are admitted. If the respondent elects 

not to contest the allegations of fact set 

forth in the notice of charges, the 

answer shall consist of a statement that 

the respondent admits all of the material 

allegations to be true. Such an answer 

shall constitute a waiver of hearings as 

to the facts alleged in the notice of 

charges, and together with the notice of 

charges will provide a record basis on 

which the hearing officer shall issue a 

recommended decision containing 

appropriate findings and conclusions 

and a proposed order disposing of the 

proceeding. In such an answer, the 

respondent may, however, reserve the 

right to submit proposed findings of fact 

and conclusions of law under 

§ 1081.305. 

(d) Default. 

(1) Failure of a respondent to file an 

answer within the time provided shall 

be deemed to constitute a waiver of the 

respondent’s right to appear and contest 

the allegations of the notice of charges 

and to authorize the hearing officer, 

without further notice to the 

respondent, to find the facts to be as 

alleged in the notice of charges and to 

enter a recommended decision 

containing appropriate findings and 

conclusions. In such cases, respondent 

shall have no right to appeal pursuant 

to § 1081.402, but must instead proceed 

pursuant to paragraph (d)(2) of this 

section. 

(2) A motion to set aside a default 

shall be made within a reasonable time, 

state the reasons for the failure to appear 

or defend, and specify the nature of the 

proposed defense in the proceeding. In 

order to prevent injustice and on such 

conditions as may be appropriate, the 

hearing officer, at any time prior to the 

filing of the recommended decision, or 

the Director, at any time, may for good 

cause shown set aside a default. 

§ 1081.202 Amended pleadings. 

(a) Amendments. The notice of 

charges or answer may be amended or 

supplemented at any stage of the 

proceeding. The respondent must 

answer an amended notice of charges 

within the time remaining for the 


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respondent’s answer to the original 

notice of charges, or within 10 days after 

service of the amended notice of 

charges, whichever period is longer, 

unless the hearing officer orders 

otherwise for good cause. 

(b) Amendments to conform to the 

evidence. When issues not raised in the 

notice of charges or answer are tried at 

the hearing by express or implied 

consent of the parties, they will be 

treated in all respects as if they had 

been raised in the notice of charges or 

answer, and no formal amendments are 

required. If evidence is objected to at the 

hearing on the ground that it is not 

within the issues raised by the notice of 

charges or answer, the hearing officer 

may admit the evidence when 

admission is likely to assist in 

adjudicating the merits of the action and 

the objecting party fails to satisfy the 

hearing officer that the admission of 

such evidence would unfairly prejudice 

that party’s action or defense upon the 

merits. The hearing officer may grant a 

continuance to enable the objecting 

party to meet such evidence. 

§ 1081.203 Scheduling conference. 

(a) Meeting of the parties before 

scheduling conference. As early as 

practicable before the scheduling 

conference described in paragraph (b) of 

this section, 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 discuss and agree, if possible, on 

the matters set forth in paragraph (b) of 

this section. 

(b) Scheduling conference. Within 20 

days of service of the notice of charges 

or such other time as the parties and 

hearing officer may agree, the hearing 

officer shall direct counsel for all parties 

to meet with him or her in person at a 

specified time and place prior to the 

hearing or to confer by telephone for the 

purpose of scheduling the course and 

conduct of the proceeding. This meeting 

or telephone conference is called a 

scheduling conference. At the 

scheduling conference, counsel for the 

parties shall be prepared to address: 

(1) Determination of the dates and 

location of the hearing, including, in 

proceedings under section 1053(b) of 

the Act, whether the hearing should 

commence later than 60 days after 

service of the notice of charges; 

(2) Simplification and clarification of 

the issues; 

(3) Amendments to pleadings; 

(4) Settlement of any or all issues; 

(5) Production of documents as set 

forth in § 1081.206 and of witness 

statements as set forth in § 1081.207, 

and prehearing production of 

documents in response to subpoenas 

duces tecum as set forth in § 1081.208; 

(6) Whether or not the parties intend 

to move for summary disposition of any 

or all issues; 

(7) Whether the parties intend to seek 

the deposition of witnesses pursuant to 

§ 1081.209; 

(8) A schedule for the exchange of 

expert reports and the taking of expert 

depositions, if any; and 

(9) Such other matters as may aid in 

the orderly disposition of the 

proceeding. 

(c) Transcript. The hearing officer, in 

his or her discretion, may require that 

a scheduling conference be recorded by 

a court reporter. A transcript of the 

conference and any materials filed, 

including orders, becomes part of the 

record of the proceeding. A party may 

obtain a copy of the transcript at his or 

her expense. 

(d) Scheduling order. At or within five 

days following the conclusion of the 

scheduling conference, the hearing 

officer shall serve on each party an 

order setting forth the date and location 

of the hearing and any agreements 

reached and any procedural 

determinations made. 

(e) Failure to appear; default. Any 

person who is named in a notice of 

charges as a person against whom 

findings may be made or sanctions 

imposed and who fails to appear, in 

person or through counsel, at a 

scheduling conference of which he or 

she has been duly notified may be 

deemed in default pursuant to 

§ 1081.201(d)(1). A party may make a 

motion to set aside a default pursuant to 

§ 1081.201(d)(2). 

(f) Public access. The scheduling 

conference shall be public unless the 

hearing officer determines, based on the 

standard set forth in § 1081.119(b) of 

this part, that the conference (or any 

part thereof) shall be closed to the 

public. 

§ 1081.204 Consolidation and severance of 

actions. 

(a) Consolidation. 

(1) On the motion of any party, or on 

the hearing officer’s own motion, the 

hearing officer may consolidate, for 

some or all purposes, any two or more 

proceedings, if each such proceeding 

involves or arises out of the same 

transaction, occurrence or series of 

transactions or occurrences, or involves 

at least one common respondent or a 

material common question of law or 

fact, unless such consolidation would 

cause unreasonable delay or injustice. 

(2) In the event of consolidation under 

paragraph (a)(1) of this section, 

appropriate adjustment to the 

prehearing schedule may be made to 

avoid unnecessary expense, 

inconvenience, or delay. 

(b) Severance. The hearing officer 

may, upon the motion of any party, 

sever the proceeding for separate 

resolution of the matter as to any 

respondent only if the hearing officer 

finds that: 

(1) Undue prejudice or injustice to the 

moving party would result from not 

severing the proceeding; and 

(2) Such undue prejudice or injustice 

would outweigh the interests of judicial 

economy and expedition in the 

complete and final resolution of the 

proceeding. 

§ 1081.205 Non-dispositive motions. 

(a) Scope. This section applies to all 

motions except motions to dismiss and 

motions for summary disposition. Nondispositive motions filed pursuant to 

other sections of this part shall comply 

with any specific requirements of that 

section and this section to the extent 

these requirements are not inconsistent. 

(b) In writing. 

(1) Unless made during a hearing or 

conference, an application or request for 

an order or ruling must be made by 

written motion. 

(2) All written motions must state 

with particularity the relief sought and 

must be accompanied by a proposed 

order. 

(3) No oral argument may be held on 

written motions except as otherwise 

directed by the hearing officer. Written 

memoranda, briefs, affidavits or other 

relevant material or documents may be 

filed in support of or in opposition to a 

motion. 

(c) Oral motions. The Director or the 

hearing officer, as appropriate, may 

order that an oral motion be submitted 

in writing. 

(d) Responses and replies. 

(1) Except as otherwise provided 

herein, within 10 days after service of 

any written motion, or within such 

other period of time as may be 

established by the hearing officer or the 

Director, as appropriate, any party may 

file a written response to a motion. The 

hearing officer shall not rule on any oral 

or written motion before each party has 

had an opportunity to file a response. 

(2) Reply briefs, if any, may be filed 

within three days after service of the 

response. 

(3) The failure of a party to oppose a 

written motion or an oral motion made 

on the record is deemed consent by that 

party to the entry of an order 

substantially in the form of the order 

accompanying the motion. 

(e) Length limitations. No motion 

subject to this section (together with the 


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brief in support of the motion) or brief 

in response to the motion shall exceed 

15 pages in length, exclusive of pages 

containing the table of contents, table of 

authorities, and any addendum that 

consists solely of copies of applicable 

cases, pertinent legislative provisions or 

rules, and exhibits. No reply brief shall 

exceed six pages in length, exclusive of 

pages containing the table of contents, 

table of authorities, and any addendum 

that consists solely of copies of 

applicable cases, pertinent legislative 

provisions or rules, and exhibits. 

Motions for leave to file motions and 

briefs in excess of these limitations are 

disfavored. 

(f) Meet and confer requirements. 

Each motion filed under this section 

shall be accompanied by a signed 

statement representing that counsel for 

the moving party has conferred or made 

a good faith effort to confer with 

opposing counsel in a good faith effort 

to resolve by agreement the issues raised 

by the motion and has been unable to 

reach such an agreement. If some of the 

matters in controversy have been 

resolved by agreement, the statement 

shall specify the matters so resolved and 

the matters remaining unresolved. 

(g) Ruling on non-dispositive motions. 

Unless otherwise provided by a relevant 

rule, a hearing officer shall rule on nondispositive motions. Such ruling shall 

be issued within 14 days after the 

expiration of the time period allowed 

for the filing of all motions papers 

authorized by this section. The Director, 

for good cause, may extend the time 

allowed for a ruling. 

(h) Proceedings not stayed. A motion 

under consideration by the Director or 

the hearing officer shall not stay 

proceedings before the hearing officer 

unless the Director or the hearing 

officer, as appropriate, so orders. 

(i) Dilatory motions. Frivolous, 

dilatory, or repetitive motions are 

prohibited. The filing of such motions 

may form the basis for sanctions. 

§ 1081.206 Availability of documents for 

inspection and copying. 

For purposes of this section, the term 

documents shall include any book, 

document, record, report, 

memorandum, paper, communication, 

tabulation, chart, logs, electronic files, 

or other data or data compilations stored 

in any medium. 

(a) Documents to be available for 

inspection and copying. 

(1) Unless otherwise provided by this 

section, or by order of the hearing 

officer, the Division of Enforcement 

shall make available for inspection and 

copying by any party documents 

obtained by the Division of Enforcement 

prior to the institution of proceedings, 

from persons not employed by the 

Bureau, in connection with the 

investigation leading to the institution 

of proceedings. Such documents shall 

include: 

(i) Any documents turned over in 

response to civil investigative demands 

or other written requests to provide 

documents or to be interviewed issued 

by the Division of Enforcement; 

(ii) All transcripts and transcript 

exhibits; and 

(iii) Any other documents obtained 

from persons not employed by the 

Bureau. 

(2) In addition, the Division of 

Enforcement shall make available for 

inspection and copying by any party: 

(i) Each civil investigative demand or 

other written request to provide 

documents or to be interviewed issued 

by the Division of Enforcement in 

connection with the investigation 

leading to the institution of proceedings; 

and 

(ii) Any final examination or 

inspection reports prepared by any 

other Division of the Bureau if the 

Division of Enforcement either intends 

to introduce any such report into 

evidence or to use any such report to 

refresh the recollection of, or impeach, 

any witness. 

(3) Nothing in paragraph (a) of this 

section shall limit the right of the 

Division of Enforcement to make 

available any other document, or shall 

limit the right of a respondent to seek 

access to or production pursuant to 

subpoena of any other document, or 

shall limit the authority of the hearing 

officer to order the production of any 

document pursuant to subpoena. 

(4) Nothing in paragraph (a) of this 

section shall require the Division of 

Enforcement to produce a final 

examination or inspection report 

prepared by any other Division of the 

Bureau to a respondent who is not the 

subject of that report. 

(b) Documents that may be withheld. 

(1) The Division of Enforcement may 

withhold a document if: 

(i) The document is privileged; 

(ii) The document is an internal 

memorandum, note or writing prepared 

by a person employed by the Bureau or 

another government agency, other than 

an examination or supervision report as 

specified in paragraph (a)(2)(ii) of this 

section, or would otherwise be subject 

to the work product doctrine and will 

not be offered in evidence; 

(iii) The document would disclose the 

identity of a confidential source; 

(iv) Applicable law prohibits the 

disclosure of the document; or 

(v) The hearing officer grants leave to 

withhold a document or category of 

documents as not relevant to the subject 

matter of the proceeding or otherwise, 

for good cause shown. 

(2) Nothing in paragraph (b)(1) of this 

section authorizes the Division of 

Enforcement in connection with an 

adjudication proceeding to withhold 

material exculpatory evidence in the 

possession of the Division that would 

otherwise be required to be produced 

pursuant to paragraph (a) of this section. 

(c) Withheld document list. The 

hearing officer may require the Division 

of Enforcement to submit for review a 

list of documents or categories of 

documents withheld pursuant to 

paragraphs (b)(1)(i) through (b)(1)(iv) of 

this section or to submit any document 

withheld, and may determine whether 

any such document should be made 

available for inspection and copying. 

When similar documents are withheld 

pursuant to paragraphs (b)(1)(i) through 

(b)(1)(iv) of this section, those 

documents may be identified by 

category instead of by individual 

document. The hearing officer retains 

discretion to determine when an 

identification by category is insufficient. 

(d) Timing of inspection and copying. 

Unless otherwise ordered by the hearing 

officer, the Division of Enforcement 

shall commence making documents 

available to a respondent for inspection 

and copying pursuant to this section no 

later than seven days after service of the 

notice of charges. 

(e) Place of inspection and copying. 

Documents subject to inspection and 

copying pursuant to this section shall be 

made available to the respondent for 

inspection and copying at the Bureau 

office where they are ordinarily 

maintained, or at such other place as the 

parties, in writing, may agree. A 

respondent shall not be given custody of 

the documents or leave to remove the 

documents from the Bureau’s offices 

pursuant to the requirements of this 

section other than by written agreement 

of the Division of Enforcement. Such 

agreement shall specify the documents 

subject to the agreement, the date they 

shall be returned and such other terms 

or conditions as are appropriate to 

provide for the safekeeping of the 

documents. 

(f) Copying costs and procedures. The 

respondent may obtain a photocopy of 

any documents made available for 

inspection or, at the discretion of the 

Division of Enforcement, electronic 

copies of such documents. The 

respondent shall be responsible for the 

cost of photocopying. Unless otherwise 

ordered, charges for copies made by the 

Division of Enforcement at the request 


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of the respondent will be at the rate 

charged pursuant to part 1070. The 

respondent shall be given access to the 

documents at the Bureau’s offices or 

such other place as the parties may 

agree during normal business hours for 

copying of documents at the 

respondent’s expense. 

(g) Duty to supplement. If the Division 

of Enforcement acquires information 

that it intends to rely upon at a hearing 

after making its disclosures under part 

(a)(1) of this section, the Division of 

Enforcement shall supplement its 

disclosures to include such information. 

(h) Failure to make documents 

available—harmless error. In the event 

that a document required to be made 

available to a respondent pursuant to 

this section is not made available by the 

Division of Enforcement, no rehearing 

or redecision of a proceeding already 

heard or decided shall be required 

unless the respondent establishes that 

the failure to make the document 

available was not harmless error. 

(i) Disclosure of privileged or 

protected information or 

communications; scope of waiver; 

obligations of receiving party. 

(1)(i) The disclosure of privileged or 

protected information or 

communications by any party during an 

adjudication proceeding shall not 

operate as a waiver if: 

(A) The disclosure was inadvertent; 

(B) The holder of the privilege or 

protection took reasonable steps to 

prevent disclosure; and 

(C) The holder promptly took 

reasonable steps to rectify the error, 

including notifying any party that 

received the information or 

communication of the claim and the 

basis for it. 

(ii) After being notified, the receiving 

party must promptly return, sequester, 

or destroy the specified information and 

any copies it has; must not use or 

disclose the information until the claim 

is resolved; must take reasonable steps 

to retrieve the information if the party 

disclosed it before being notified; and 

may promptly present the information 

to the hearing officer under seal for a 

determination of the claim. The 

producing party must preserve the 

information until the claim is resolved. 

(2) The disclosure of privileged or 

protected information or 

communications by any party during an 

adjudication proceeding shall waive the 

privilege or protection as to undisclosed 

information or communications only if: 

(i) The waiver is intentional; 

(ii) The disclosed and undisclosed 

information or communications concern 

the same subject matter; and 

(iii) They ought in fairness to be 

considered together. 

§ 1081.207 Production of witness 

statements. 

(a) Availability. Any respondent may 

move that the Division of Enforcement 

produce for inspection and copying any 

statement of any person called or to be 

called as a witness by the Division of 

Enforcement that pertains, or is 

expected to pertain, to his or her direct 

testimony and that would be required to 

be produced pursuant to the Jencks Act, 

18 U.S.C. 3500, if the adjudication 

proceeding were a criminal proceeding. 

For purposes of this section, the term 

‘‘statement’’ shall have the meaning set 

forth in 18 U.S.C. 3500(e). Such 

production shall be made at a time and 

place fixed by the hearing officer and 

shall be made available to any party, 

provided, however, that the production 

shall be made under conditions 

intended to preserve the items to be 

inspected or copied. 

(b) Failure to produce—harmless 

error. In the event that a statement 

required to be made available to a 

respondent pursuant to this section is 

not made available by the Division of 

Enforcement, no rehearing or redecision 

of a proceeding already heard or 

decided shall be required unless the 

respondent establishes that the failure to 

make the statement available was not 

harmless error. 

§ 1081.208 Subpoenas. 

(a) Availability. In connection with 

any hearing ordered by the hearing 

officer, a party may request the issuance 

of one or more subpoenas requiring the 

attendance and testimony of witnesses 

at the designated time and place of the 

hearing, or the production of 

documentary or other tangible evidence 

returnable at any designated time or 

place. 

(b) Procedure. Unless made on the 

record at a hearing, requests for issuance 

of a subpoena shall be made in writing, 

and filed and served on each party 

pursuant to subpart A of this part. The 

request must contain a proposed 

subpoena and a brief statement showing 

the general relevance and 

reasonableness of the scope of testimony 

or documents sought. 

(c) Signing may be delegated. A 

hearing officer may authorize issuance 

of a subpoena, and may delegate the 

manual signing of the subpoena to any 

other person authorized to issue 

subpoenas. 

(d) Standards for issuance. The 

hearing officer shall promptly issue any 

subpoena requested pursuant to this 

section. However, where it appears to 

the hearing officer that the subpoena 

sought may be unreasonable, 

oppressive, excessive in scope, or 

unduly burdensome, he or she may, in 

his or her discretion, as a condition 

precedent to the issuance of the 

subpoena, require the person seeking 

the subpoena to show further the 

general relevance and reasonable scope 

of the testimony or other evidence 

sought. If after consideration of all the 

circumstances, the hearing officer 

determines that the subpoena or any of 

its terms is unreasonable, oppressive, 

excessive in scope, or unduly 

burdensome, he or she may refuse to 

issue the subpoena, or issue it only 

upon such conditions as fairness 

requires. In making the foregoing 

determination, the hearing officer may 

inquire of the other participants 

whether they will stipulate to the facts 

sought to be proved. 

(e) Service. Upon issuance by the 

hearing officer, the party making the 

request shall serve the subpoena on the 

person named in the subpoena and on 

each party in accordance with 

§ 1081.113(c). Subpoenas may be served 

in any state, on any person or company 

doing business in any state, or as 

otherwise permitted by law. 

(f) Tender of fees required. When a 

subpoena compelling the attendance of 

a person at a hearing is issued at the 

request of anyone other than an officer 

or agency of the United States, service 

is valid only if the subpoena is 

accompanied by a tender to the 

subpoenaed person of the fees for one 

day’s attendance and mileage specified 

by § 1081.116 of this part. 

(g) Motion to quash or modify. 

(1) Procedure. Any person to whom a 

subpoena is directed, or who is an 

owner, creator or the subject of the 

documents that are to be produced 

pursuant to a subpoena, or any party 

may, prior to the time specified therein 

for compliance, but in no event more 

than 10 days after the date of service of 

such subpoena, move that the subpoena 

be quashed or modified. Such motion 

shall be filed and served on all parties 

pursuant to subpart A of this part. 

Notwithstanding § 1081.205, the party 

on whose behalf the subpoena was 

issued or Enforcement Counsel may, 

within five days of service of the 

motion, file a response to the motion. 

Reply briefs are not permitted unless 

requested by the hearing officer. Filing 

a motion to modify a subpoena does not 

stay the movant’s obligation to comply 

with those portions of the subpoena that 

the person has not sought to modify. 

(2) Standards governing motion to 

quash or modify. If compliance with the 

subpoena would be unreasonable, 


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oppressive, or unduly burdensome, the 

hearing officer shall quash or modify the 

subpoena, or may order return of the 

subpoena only upon specified 

conditions. These conditions may 

include but are not limited to a 

requirement that the party on whose 

behalf the subpoena was issued shall 

make reasonable compensation to the 

person to whom the subpoena was 

addressed for the cost of copying or 

transporting evidence to the place for 

return of the subpoena. 

(h) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section or any order of the hearing 

officer which directs compliance with 

all or any portion of a subpoena, the 

Bureau may, on its own motion or at the 

request of the party on whose behalf the 

subpoena was issued, apply to an 

appropriate United States district court, 

in the name of the Bureau but on 

relation of such party, for an order 

requiring compliance with so much of 

the subpoena as the hearing officer has 

not quashed or modified, unless, in the 

judgment of the General Counsel, the 

enforcement of such subpoena would be 

inconsistent with law and the policies 

of the Act. Failure to request the Bureau 

to seek enforcement of a subpoena 

constitutes a waiver of any claim of 

prejudice predicated upon the 

unavailability of the testimony or 

evidence sought. 

§ 1081.209 Deposition of witness 

unavailable for hearing. 

(a) General rules. 

(1) If a witness will not be available 

for the hearing, a party desiring to 

preserve that witness’ testimony for the 

record may request in accordance with 

the procedures set forth in this section 

that the hearing officer issue a 

subpoena, including a subpoena duces 

tecum, requiring the attendance of the 

witness at a deposition. The hearing 

officer may issue a deposition subpoena 

under this section upon showing that: 

(i) The witness will be unable to 

attend or may be prevented from 

attending the hearing because of age, 

sickness, or infirmity, or will otherwise 

be unavailable; 

(ii) The witness’ unavailability was 

not procured or caused by the 

subpoenaing party; 

(iii) The testimony is reasonably 

expected to be material; and 

(iv) Taking the deposition will not 

result in any undue burden to any other 

party and will not cause undue delay of 

the proceeding. 

(2) In addition to making a showing 

as required by paragraph (a)(1) of this 

section, the request for a deposition 

subpoena must contain a proposed 

deposition subpoena and a brief 

statement showing the general relevance 

and reasonableness of the scope of 

testimony and documents sought, and 

the time and place for taking the 

deposition. Any request to record the 

deposition by audio-visual means must 

be made in the request for a deposition 

subpoena. 

(3) Any requested deposition 

subpoena that sets forth a valid basis for 

its issuance must be promptly issued, 

unless the hearing officer on his or her 

own motion requires a written response 

or requires attendance at a conference 

concerning whether the requested 

subpoena should be issued. However, 

where it appears to the hearing officer 

that the deposition subpoena sought 

may be unreasonable, oppressive, 

excessive in scope, or unduly 

burdensome, he or she may, in his or 

her discretion, as a condition precedent 

to the issuance of the deposition 

subpoena, require the person seeking 

the deposition subpoena to show further 

the general relevance and reasonable 

scope of the testimony or other evidence 

sought. If after consideration of all the 

circumstances, the hearing officer 

determines that the deposition 

subpoena or any of its terms is 

unreasonable, oppressive, excessive in 

scope, or unduly burdensome, he or she 

may refuse to issue the deposition 

subpoena, or issue it only upon such 

conditions as fairness requires. In 

making the foregoing determination, the 

hearing officer may inquire of the other 

participants whether they will stipulate 

to the facts sought to be proved. 

(4) Unless the hearing officer orders 

otherwise, no deposition under this 

section shall be taken on fewer than 14 

days’ notice to the witness and all 

parties. 

(b) Procedure. Unless made on the 

record at a hearing, requests for issuance 

of a deposition subpoena shall be made 

in writing, and filed and served on each 

party pursuant to subpart A of this part. 

(c) Signing may be delegated. A 

hearing officer may authorize issuance 

of a deposition subpoena, and may 

delegate the manual signing of the 

deposition subpoena to any other 

person authorized to issue subpoenas. 

(d) Service. Upon issuance by the 

hearing officer, the party making the 

request shall serve the subpoena on the 

person named in the subpoena and on 

each party in accordance with 

§ 1081.113(c). Deposition subpoenas 

may be served in any state, territory, 

possession of the United States, or the 

District of Columbia, on any person or 

company doing business in any state, 

territory, possession of the United 

States, or the District of Columbia, or as 

otherwise permitted by law. 

(e) Tender of fees required. When a 

subpoena compelling the attendance of 

a person at a deposition is issued at the 

request of anyone other than an officer 

or agency of the United States, service 

is valid only if the subpoena is 

accompanied by a tender to the 

subpoenaed person of the fees for one 

day’s attendance and mileage specified 

by § 1081.116 of this part. 

(f) Motion to quash or modify. 

(1) Procedure. Any person to whom a 

deposition subpoena is directed, or who 

is an owner, creator or the subject of the 

documents that are to be produced 

pursuant to a deposition subpoena, or 

any party may, prior to the time 

specified therein for compliance, but in 

no event more than 10 days after the 

date of service of such subpoena, move 

that the deposition subpoena be 

quashed or modified. Such motion must 

include a statement of the basis for the 

motion to quash or modify the 

deposition subpoena, and shall be filed 

and served on all parties pursuant to 

subpart A of this part. Notwithstanding 

§ 1081.205, the party on whose behalf 

the deposition subpoena was issued or 

Enforcement Counsel may, within five 

days of service of the motion, file a 

response to the motion. Reply briefs are 

not permitted unless requested by the 

hearing officer. 

(2) Standards governing motion to 

quash or modify. If compliance with the 

deposition subpoena would be 

unreasonable, oppressive or unduly 

burdensome, or the deposition 

subpoena does not meet the 

requirements set forth in paragraph 

(a)(1) of this section, the hearing officer 

shall quash or modify the deposition 

subpoena, or may order return of the 

deposition subpoena only upon 

specified conditions. These conditions 

may include but are not limited to a 

requirement that the party on whose 

behalf the deposition subpoena was 

issued shall make reasonable 

compensation to the person to whom 

the deposition subpoena was addressed 

for the cost of copying or transporting 

evidence to the place for return of the 

deposition subpoena. 

(g) Procedure upon deposition. 

(1) Depositions shall be taken before 

any person before whom a deposition 

may be taken pursuant to the Federal 

Rules of Civil Procedure (the 

‘‘deposition officer’’). 

(2) The witness being deposed may 

have an attorney present during the 

deposition. 

(3) Each witness testifying pursuant to 

a deposition subpoena must be duly 

sworn, and each party shall have the 


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right to examine the witness. Objections 

to questions or documents must be in 

short form, stating the grounds for the 

objection. Objections to questions of 

evidence shall be noted by the 

deposition officer upon the deposition, 

but a deposition officer other than the 

hearing officer shall not have the power 

to decide on the competency, 

materiality, or relevance of evidence. 

Failure to object to questions or 

documents is not deemed a waiver 

except where the ground for the 

objection might have been avoided if the 

objection had been timely presented. All 

questions, answers, and objections must 

be recorded. 

(4) The deposition must be subscribed 

by the witness, unless the parties and 

the witness, by stipulation, have waived 

the signing, or the witness is ill, cannot 

be found, or has refused to sign. If the 

deposition is not subscribed by the 

witness, the court reporter taking the 

deposition shall certify that the 

transcript is a true and complete 

transcript of the deposition. 

(5) The original deposition and 

exhibits shall be filed with the 

Executive Secretary. The cost of the 

transcript shall be paid by the party 

requesting the deposition. A copy of the 

deposition shall be available to the 

deponent and each party for purchase at 

prescribed rates. 

(h) Enforcing subpoenas. Any party 

may move before the hearing officer for 

an order compelling the witness to 

answer any questions the witness has 

refused to answer or submit any 

evidence the witness has refused to 

submit during the deposition. If a 

subpoenaed person fails to comply with 

any order of the hearing officer which 

directs compliance with all or any 

portion of a deposition subpoena under 

this section, the Bureau may, on its own 

motion or at the request of the party on 

whose behalf the subpoena was issued, 

apply to an appropriate United States 

district court, in the name of the Bureau 

but on relation of such party, for an 

order requiring compliance with so 

much of the subpoena as the hearing 

officer has not quashed or modified, 

unless, in the judgment of the General 

Counsel, the enforcement of such 

subpoena would be inconsistent with 

law and the policies of the Act. Failure 

to request the Bureau to seek 

enforcement of a subpoena constitutes a 

waiver of any claim of prejudice 

predicated upon the unavailability of 

the testimony or evidence sought. 

§ 1081.210 Expert discovery. 

(a) At a date set by the hearing officer 

at the scheduling conference, each party 

shall serve the other with a report 

prepared by each of its expert witnesses. 

Each party shall serve the other parties 

with a list of any rebuttal expert 

witnesses and a rebuttal report prepared 

by each such witness not later than 28 

days after the deadline for service of 

expert reports, unless another date is set 

by the hearing officer. A rebuttal report 

shall be limited to rebuttal of matters set 

forth in the expert report for which it is 

offered in rebuttal. If material outside 

the scope of fair rebuttal is presented, a 

party may file a motion not later than 

five days after the deadline for service 

of rebuttal reports, seeking appropriate 

relief with the hearing officer, including 

striking all or part of the report, leave 

to submit a surrebuttal report by the 

party’s own experts, or leave to call a 

surrebuttal witness and to submit a 

surrebuttal report by that witness. 

(b) No party may call an expert 

witness at the hearing unless he or she 

has been listed and has provided reports 

as required by this section, unless 

otherwise directed by the hearing officer 

at a scheduling conference. Each side 

will be limited to calling at the hearing 

five expert witnesses, including any 

rebuttal or surrebuttal expert witnesses. 

A party may file a motion seeking leave 

to call additional expert witnesses due 

to extraordinary circumstances. 

(c) Each report shall be signed by the 

expert and contain a complete statement 

of all opinions to be expressed and the 

basis and reasons therefore; the data, 

materials, or other information 

considered by the witness in forming 

the opinions; any exhibits to be used as 

a summary of or support for the 

opinions; the qualifications of the 

witness, including a list of all 

publications authored or co-authored by 

the witness within the preceding 10 

years; the compensation to be paid for 

the study and testimony; and a listing of 

any other cases in which the witness 

has testified or sought to testify as an 

expert at trial or by deposition within 

the preceding four years. A rebuttal or 

surrebuttal report need not include any 

information already included in the 

initial report of the witness. 

(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 

hearing officer, 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, and at least 

seven days prior to the deadline for 

submission of rebuttal expert reports. A 

deposition of an expert witness shall be 

completed no later than 14 days before 

the hearing unless otherwise ordered by 

the hearing officer. No expert deposition 

shall exceed 8 hours on the record, 

absent agreement of the parties or an 

order of the hearing officer for good 

cause shown. Expert depositions shall 

be conducted pursuant to the 

procedures set forth in § 1081.209. 

(e) The hearing officer shall have the 

discretion to dispense with the 

requirement of expert discovery in 

appropriate cases. 

§ 1081.211 Interlocutory review. 

(a) Availability. The Director may, at 

any time, direct that any matter be 

submitted to him or her for review. 

Subject to paragraph (c) of this section, 

the hearing officer may, on his or her 

own motion or on the motion of any 

party, certify any matter for 

interlocutory review by the Director. 

This section is the exclusive remedy for 

review of a hearing officer’s ruling or 

order prior to the Director’s 

consideration of the entire proceeding. 

(b) Procedure. Any party’s motion for 

certification of a ruling or order for 

interlocutory review shall be filed with 

the hearing officer within five days of 

service of the ruling or order, shall 

specify the ruling or order or parts 

thereof for which interlocutory review is 

sought, shall attach any other portions 

of the record on which the moving party 

relies, and shall otherwise comply with 

§ 1081.205. Notwithstanding § 1081.205, 

any response to such a motion must be 

filed within three days of service of the 

motion. The hearing officer shall issue 

a ruling on the motion within five days 

of the deadline for filing a response. 

(c) Certification process. Unless the 

Director directs otherwise, a ruling or 

order may not be submitted to the 

Director for interlocutory review unless 

the hearing officer, upon the hearing 

officer’s motion or upon the motion of 

a party, certifies the ruling or order in 

writing. The hearing officer shall not 

certify a ruling or order unless: 

(1) The ruling or order would compel 

testimony of Bureau officers or 

employees, or those from another 

governmental agency, or the production 

of documentary evidence in the custody 

of the Bureau or another governmental 

agency; 

(2) The ruling or order involves a 

motion for disqualification of the 

hearing officer pursuant to 

§ 1081.105(c)(2) of this part; 

(3) The ruling or order suspended or 

barred an individual from appearing 

before the Bureau pursuant to 

§ 1081.107(c) of this part; or 

(4) Upon motion by a party, the 

hearing officer is of the opinion that: 

(i) The ruling or order involves a 

controlling question of law as to which 


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there is substantial ground for difference 

of opinion; and 

(ii) An immediate review of the ruling 

or order is likely to materially advance 

the completion of the proceeding or 

subsequent review will be an 

inadequate remedy. 

(d) Interlocutory review. A party 

whose motion for certification has been 

denied by the hearing officer may 

petition the Director for interlocutory 

review. 

(e) Director review. The Director shall 

determine whether or not to review a 

ruling or order certified under this 

section or the subject of a petition for 

interlocutory review. Interlocutory 

review is disfavored, and the Director 

will grant a petition to review a hearing 

officer ruling or order prior to his or her 

consideration of a recommended 

decision only in extraordinary 

circumstances. The Director may 

decline to review a ruling or order 

certified by a hearing officer pursuant to 

paragraph (c) of this section or the 

petition of a party who has been denied 

certification if he or she determines that 

interlocutory review is not warranted or 

appropriate under the circumstances, in 

which case he or she may summarily 

deny the petition. If the Director 

determines to grant the review, he or 

she will review the matter and issue his 

or her ruling and order in an 

expeditious fashion, consistent with the 

Bureau’s other responsibilities. 

(f) Proceedings not stayed. The filing 

of a motion requesting that the hearing 

officer certify any of his or her prior 

rulings or orders for interlocutory 

review or a petition for interlocutory 

review filed with the Director, and the 

grant of any such review, shall not stay 

proceedings before the hearing officer 

unless he or she, or the Director, shall 

so order. The Director will not consider 

a motion for a stay unless the motion 

shall have first been made to the hearing 

officer. 

§ 1081.212 Dispositive motions. 

(a) Dispositive motions. This section 

governs the filing of motions to dismiss 

and motions for summary disposition. 

The filing of any such motion does not 

obviate a party’s obligation to file an 

answer or take any other action required 

by this part or by an order of the hearing 

officer, unless expressly so provided by 

the hearing officer. 

(b) Motions to dismiss. A respondent 

may file a motion to dismiss asserting 

that, even assuming the truth of the facts 

alleged in the notice of charges, it is 

entitled to dismissal as a matter of law. 

(c) Motion for summary disposition. A 

party may make a motion for summary 

disposition asserting that the 

undisputed pleaded facts, admissions, 

affidavits, stipulations, documentary 

evidence, matters as to which official 

notice may be taken, and any other 

evidentiary materials properly 

submitted in connection with a motion 

for summary disposition show that: 

(1) There is no genuine issue as to any 

material fact; and 

(2) The moving party is entitled to a 

decision in its favor as a matter of law. 

(d) Filing of motions for summary 

disposition and responses. 

(1) After a respondent’s answer has 

been filed and documents have been 

made available to the respondent for 

inspection and copying pursuant to 

§ 1081.206, any party may move for 

summary disposition in its favor of all 

or any part of the proceeding. 

(2) A motion for summary disposition 

must be accompanied by a statement of 

the material facts as to which the 

moving party contends there is no 

genuine issue. Such motion must be 

supported by documentary evidence, 

which may take the form of admissions 

in pleadings, stipulations, depositions, 

investigatory depositions, transcripts, 

affidavits and any other evidentiary 

materials that the moving party 

contends support his or her position. 

The motion must also be accompanied 

by a brief containing the points and 

authorities in support of the contention 

of the moving party. Any party opposing 

a motion for summary disposition must 

file a statement setting forth those 

material facts as to which he or she 

contends a genuine dispute exists. Such 

opposition must be supported by 

evidence of the same type as may be 

submitted in support of a motion for 

summary disposition and a brief 

containing the points and authorities in 

support of the contention that summary 

disposition would be inappropriate. 

(3) Any affidavit or declaration 

submitted in support of or in opposition 

to a motion for summary disposition 

shall set forth such facts as would be 

admissible in evidence, shall show 

affirmatively that the affiant is 

competent to testify to the matters stated 

therein, and must be signed under oath 

and penalty of perjury. 

(e) Page limitations for dispositive 

motions. A motion to dismiss or for 

summary disposition, together with any 

brief in support of the motion (exclusive 

of any declarations, affidavits, or 

attachments) shall not exceed 35 pages 

in length. Motions for extensions of this 

length limitation are disfavored. 

(f) Opposition and reply response 

time and page limitation. Any party, 

within 20 days after service of a 

dispositive motion, or within such time 

period as allowed by the hearing officer, 

may file a response to such motion. The 

length limitations set forth in paragraph 

(e) of this section shall also apply to 

such responses. Any reply brief filed in 

response to an opposition to a 

dispositive motion shall be filed within 

five days after service of the opposition. 

Reply briefs shall not exceed 10 pages. 

(g) Oral argument. At the request of 

any party or on his or her own motion, 

the hearing officer may hear oral 

argument on a dispositive motion. 

(h) Decision on motion. Within 30 

days following the expiration of the 

time for filing all responses and replies 

to any dispositive motion, the hearing 

officer shall determine whether the 

motion shall be granted. If the hearing 

officer determines that dismissal or 

summary disposition is warranted, he or 

she shall issue a recommended decision 

granting the motion. If the hearing 

officer finds that no party is entitled to 

dismissal or summary disposition, he or 

she shall make a ruling denying the 

motion. If it appears that a party, for 

good cause shown, cannot present by 

affidavit prior to hearing facts essential 

to justify opposition to the motion, the 

hearing officer shall deny or defer the 

motion. 

§ 1081.213 Partial summary disposition. 

If on a motion for summary 

disposition under § 1081.212 a decision 

is not rendered upon the whole case or 

for all the relief asked and a hearing is 

necessary, the hearing officer 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. 

§ 1081.214 Prehearing conferences. 

(a) Prehearing conferences. The 

hearing officer may, in addition to the 

scheduling conference, on his or her 

own motion or at the request of any 

party, direct counsel for the parties to 

meet with him or her (in person or by 

telephone) at a prehearing conference 

for further discussion of the issues 

outlined in § 1081.203, or for discussion 

of any additional matters that in the 

view of the hearing officer will aid in an 

orderly disposition of the proceeding, 

including but not limited to: 

(1) Identification of potential 

witnesses and limitation on the number 

of witnesses; 

(2) The exchange of any prehearing 

materials including witness lists, 

statements of issues, stipulations, 

exhibits, and any other materials; 

(3) Stipulations, admissions of fact, 

and the contents, authenticity, and 

admissibility into evidence of 

documents; 


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(4) Matters of which official notice 

may be taken; and 

(5) Whether the parties intend to 

introduce prior sworn statements of 

witnesses as set forth in § 1081.303(h). 

(b) Transcript. The hearing officer, in 

his or her discretion, may require that 

a prehearing conference be recorded by 

a court reporter. A transcript of the 

conference and any materials filed, 

including orders, becomes part of the 

record of the proceeding. A party may 

obtain a copy of the transcript at his or 

her expense. 

(c) Public access. Any prehearing 

conferences shall be public unless the 

hearing officer determines, based on the 

standard set forth in § 1081.119(b) of 

this part, that the conference (or any 

part thereof) shall be closed to the 

public. 

§ 1081.215 Prehearing submissions. 

(a) Within the time set by the hearing 

officer, but in no case later than 10 days 

before the start of the hearing, each 

party shall serve on every other party: 

(1) A prehearing statement, which 

shall include an outline or narrative 

summary of its case or defense, and the 

legal theories upon which it will rely; 

(2) A final list of witnesses to be 

called to testify at the hearing, including 

name and address of each witness and 

a short summary of the expected 

testimony of each witness; 

(3) Any prior sworn statements that a 

party intends to admit into evidence 

pursuant to § 1081.303(h); 

(4) A list of the exhibits to be 

introduced at the hearing along with a 

copy of each exhibit; and 

(5) Any stipulations of fact or liability. 

(b) Expert witnesses. Each party who 

intends to call an expert witness shall 

also serve, in addition to the 

information required by paragraph (a)(2) 

of this section, a statement of the 

expert’s qualifications, a listing of other 

proceedings in which the expert has 

given or sought to give expert testimony 

at trial or by deposition within the 

preceding four years, and a list of 

publications authored or co-authored by 

the expert within the preceding 10 

years, to the extent such information has 

not already been provided pursuant to 

§ 1081.210. 

(c) Effect of failure to comply. No 

witness may testify and no exhibits may 

be introduced at the hearing if such 

witness or exhibit is not listed in the 

prehearing submissions pursuant to 

paragraph (a) of this section, except for 

good cause shown. 

§ 1081.216 Amicus participation. 

(a) Availability. An amicus brief may 

be filed only if: 

(1) A motion for leave to file the brief 

has been granted; 

(2) The brief is accompanied by 

written consent of all parties; 

(3) The brief is filed at the request of 

the Director or the hearing officer, as 

appropriate; or 

(4) The brief is presented by the 

United States or an officer or agency 

thereof, or by a state or a political 

subdivision thereof. 

(b) Procedure. An amicus brief may be 

filed conditionally with the motion for 

leave. The motion for leave shall 

identify the interest of the movant and 

shall state the reasons why a brief of an 

amicus curiae is desirable. Except as all 

parties otherwise consent, any amicus 

curiae shall file its brief within the time 

allowed the party whose position the 

amicus will support, unless the Director 

or hearing officer, as appropriate, for 

good cause shown, grants leave for a 

later filing. In the event that a later filing 

is allowed, the order granting leave to 

file shall specify when an opposing 

party may reply to the brief. 

(c) Motions. A motion for leave to file 

an amicus brief shall be subject to 

§ 1081.205. 

(d) Oral argument. An amicus curiae 

may move to present oral argument at 

any hearing before the hearing officer, 

but such motions will be granted only 

for extraordinary reasons. 

Subpart C—Hearings 

§ 1081.300 Public hearings. 

All hearings in adjudication 

proceedings shall be public unless a 

confidentiality order is entered by the 

hearing officer pursuant to § 1081.119 or 

unless otherwise ordered by the Director 

on the grounds that holding an open 

hearing would be contrary to the public 

interest. 

§ 1081.301 Failure to appear. 

Failure of a respondent to appear in 

person or by a duly authorized counsel 

at the hearing constitutes a waiver of 

respondent’s right to a hearing and may 

be deemed an admission of the facts as 

alleged and consent to the relief sought 

in the notice of charges. Without further 

proceedings or notice to the respondent, 

the hearing officer shall file a 

recommended decision containing 

findings of fact and addressing the relief 

sought in the notice of charges. 

§ 1081.302 Conduct of hearings. 

All hearings shall be conducted in a 

fair, impartial, expeditious, and orderly 

manner. Enforcement Counsel shall 

present its case-in-chief first, unless 

otherwise ordered by the hearing officer, 

or unless otherwise expressly specified 

by law or regulation. Enforcement 

Counsel shall be the first party to 

present an opening statement and a 

closing statement, and may make a 

rebuttal statement after the respondent’s 

closing statement. If there are multiple 

respondents, respondents may agree 

among themselves as to their order of 

presentation of their cases, but if they 

do not agree, the hearing officer shall fix 

the order. 

§ 1081.303 Evidence. 

(a) Burden of proof. Enforcement 

Counsel shall have the burden of proof 

of the ultimate issue(s) of the Bureau’s 

claims at the hearing. 

(b) Admissibility. 

(1) Except as is otherwise set forth in 

this section, relevant, material, and 

reliable evidence that is not unduly 

repetitive is admissible to the fullest 

extent authorized by the Administrative 

Procedure Act and other applicable law. 

Irrelevant, immaterial, and unreliable 

evidence shall be excluded. 

(2) Evidence, even if relevant, may be 

excluded if its probative value is 

substantially outweighed by the danger 

of unfair prejudice or confusion of the 

issues; if the evidence would be 

misleading; or based on considerations 

of undue delay, waste of time, or 

needless presentation of cumulative 

evidence. 

(3) Evidence that constitutes hearsay 

may be admitted if it is relevant, 

material, and bears satisfactory indicia 

of reliability so that its use is fair. 

Hearsay is a statement, other than one 

made by the declarant while testifying 

at the hearing, offered in evidence to 

prove the truth of the matter asserted. If 

otherwise meeting the standards for 

admissibility described in this section, 

transcripts of depositions, 

investigational hearings, prior testimony 

in Bureau or other proceedings, and any 

other form of hearsay shall be 

admissible and shall not be excluded 

solely on the ground that they are or 

contain hearsay. 

(4) 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. 

(c) Official notice. Official notice may 

be taken of any material fact that is not 

subject to reasonable dispute in that it 

is either generally known or capable of 

accurate and ready determination by 

resort to sources whose accuracy cannot 

reasonably be questioned. If official 

notice is requested or is taken of a 


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material fact not appearing in the 

evidence in the record, the parties, upon 

timely request, shall be afforded an 

opportunity to disprove such noticed 

fact. 

(d) Documents. 

(1) A duplicate copy of a document is 

admissible to the same extent as the 

original, unless a genuine issue is raised 

as to whether the copy is in some 

material respect not a true and legible 

copy of the original. 

(2) Subject to the requirements of 

paragraph (b) of this section, any 

document, including a report of 

examination, supervisory activity, 

inspection or visitation, prepared by a 

prudential regulator, as that term is 

defined in section 1002(24) of the Act, 

or by a state regulatory agency, is 

presumptively admissible either with or 

without a sponsoring witness. 

(3) Witnesses may use existing or 

newly created charts, exhibits, 

calendars, calculations, outlines or other 

graphic material to summarize, 

illustrate, or simplify the presentation of 

testimony. Such materials may, subject 

to the hearing officer’s discretion, be 

used with or without being admitted 

into evidence. 

(4) As respondents are in the best 

position to determine the nature of 

documents generated by such 

respondents and which come from their 

own files, the burden of proof is on the 

respondent to introduce evidence to 

rebut a presumption that such 

documents are authentic and kept in the 

regular course of business. 

(e) Objections. 

(1) Objections to the admissibility of 

evidence must be timely made and 

rulings on all objections must appear on 

the record. 

(2) Whenever evidence is excluded 

from the record, the party offering such 

evidence may make an offer of proof, 

which shall be included in the record. 

Rejected exhibits, adequately marked for 

identification, shall be retained 

pursuant to § 1081.306(b) so as to be 

available for consideration by any 

reviewing authority. 

(3) Failure to object to admission of 

evidence or to any ruling constitutes a 

waiver of the objection. 

(f) Stipulations. 

(1) The parties may, at any stage of the 

proceeding, stipulate as to any relevant 

matters of fact or the authentication of 

any relevant documents. Such 

stipulations must be received in 

evidence at a hearing and are binding on 

the parties with respect to the matters 

therein stipulated. 

(2) Unless the hearing officer directs 

otherwise, all stipulations of fact and 

law previously agreed upon by the 

parties, and all documents, the 

admissibility of which have been 

previously stipulated, will be admitted 

into evidence upon commencement of 

the hearing. 

(g) Presentation of evidence. 

(1) A witness at a hearing for the 

purpose of taking evidence shall testify 

under oath or affirmation. 

(2) A party is entitled to present its 

case or defense by sworn oral testimony 

and documentary evidence, to submit 

rebuttal evidence, and to conduct such 

cross-examination as, in the discretion 

of the hearing officer, may be required 

for a full and true disclosure of the facts. 

(3) An adverse party, or an officer, 

agent, or employee thereof, and any 

witness who appears to be hostile, 

unwilling, or evasive, may be 

interrogated by leading questions and 

may also be contradicted and 

impeached by the party calling him or 

her. 

(4) The hearing officer shall exercise 

reasonable control over the mode and 

order of interrogating witnesses and 

presenting evidence so as to: 

(i) Make the interrogation and 

presentation effective for the 

ascertainment of the truth; 

(ii) Avoid needless consumption of 

time; and 

(iii) Protect witnesses from 

harassment or undue embarrassment. 

(5) The hearing officer may permit a 

witness to appear at a hearing via video 

conference or telephone for good cause 

shown. 

(h) Introducing prior sworn 

statements of witnesses into the record. 

At a hearing, any party wishing to 

introduce a prior, sworn statement of a 

witness, not a party, otherwise 

admissible in the proceeding, may make 

a motion setting forth the reasons 

therefore. If only part of a statement is 

offered in evidence, the hearing officer 

may require that all relevant portions of 

the statement be introduced. If all of a 

statement is offered in evidence, the 

hearing officer may require that portions 

not relevant to the proceeding be 

excluded. A motion to introduce a prior 

sworn statement may be granted if: 

(1) The witness is dead; 

(2) The witness is out of the United 

States, unless it appears that the absence 

of the witness was procured by the party 

offering the prior sworn statement; 

(3) The witness is unable to attend or 

testify because of age, sickness, 

infirmity, imprisonment or other 

disability; 

(4) The party offering the prior sworn 

statement has been unable to procure 

the attendance of the witness by 

subpoena; or 

(5) In the discretion of the hearing 

officer, it would be desirable, in the 

interests of justice, to allow the prior 

sworn statement to be used. In making 

this determination, due regard shall be 

given to the presumption that witnesses 

will testify orally in an open hearing. If 

the parties have stipulated to accept a 

prior sworn statement in lieu of live 

testimony, consideration shall also be 

given to the convenience of the parties 

in avoiding unnecessary expense. 

§ 1081.304 Record of the hearing. 

(a) Reporting and transcription. 

Hearings shall be stenographically 

reported and transcribed under the 

supervision of the hearing officer, and 

the original transcript shall be a part of 

the record and the sole official 

transcript. The live oral testimony of 

each witness may be video recorded 

digitally, in which case the video 

recording and the written transcript of 

the testimony shall be made part of the 

record. Copies of transcripts shall be 

available from the reporter at prescribed 

rates. 

(b) Corrections. Corrections of the 

official transcript may be made only 

when they involve errors affecting 

substance and then only in the manner 

herein provided. Corrections ordered by 

the hearing officer or agreed to in a 

written stipulation signed by all counsel 

and parties not represented by counsel, 

and approved by the hearing officer, 

shall be included in the record, and 

such stipulations, except to the extent 

they are capricious or without 

substance, shall be approved by the 

hearing officer. Corrections shall not be 

ordered by the hearing officer except 

upon notice and opportunity for the 

hearing of objections. Such corrections 

shall be made by the official reporter by 

furnishing substitute type pages, under 

the usual certificate of the reporter, for 

insertion in the official record. The 

original uncorrected pages shall be 

retained in the files of the Bureau. 

(c) Closing of the hearing record. 

Upon completion of the hearing, the 

hearing officer shall issue an order 

closing the hearing record after giving 

the parties three days to determine if the 

record is complete or needs to be 

supplemented. The hearing officer shall 

retain the discretion to permit or order 

correction of the record as provided in 

paragraph (b) of this section. 

§ 1081.305 Post-hearing filings. 

(a) Proposed findings and conclusions 

and supporting briefs. 

(1) Using the same method of service 

for each party, the hearing officer shall 

serve notice upon each party that the 

certified transcript, together with all 


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hearing exhibits and exhibits introduced 

but not admitted into evidence at the 

hearing, has been filed promptly after 

that filing. Any party may file with the 

hearing officer proposed findings of fact, 

proposed conclusions of law, and a 

proposed order within 30 days 

following service of this notice by the 

hearing officer or within such longer 

period as may be ordered by the hearing 

officer. 

(2) Proposed findings and conclusions 

must be supported by citation to any 

relevant authorities and by page 

references to any relevant portions of 

the record. A post-hearing brief may be 

filed in support of proposed findings 

and conclusions, either as part of the 

same document or in a separate 

document. 

(b) Responsive briefs. Responsive 

briefs may be filed within 15 days after 

the date on which the parties’ proposed 

findings, conclusions, and order are 

due. Responsive briefs must be strictly 

limited to responding to matters, issues, 

or arguments raised in another party’s 

papers. A party who has not filed 

proposed findings of fact and 

conclusions of law or a post-hearing 

brief may not file a responsive brief. 

Unless directed by the hearing officer, 

reply briefs are not permitted. 

(c) Order of filing. The hearing officer 

shall not order the filing by any party 

of any post-hearing brief or responsive 

brief in advance of the other party’s 

filing of its post-hearing brief or 

responsive brief. 

§ 1081.306 Record in proceedings before 

hearing officer; retention of documents; 

copies. 

(a) Contents of the record. The record 

of the proceeding shall consist of: 

(1) The notice of charges, the answer, 

and any amendments thereto; 

(2) Each motion, submission, or other 

paper filed in the proceedings, and any 

amendments and exceptions to or 

regarding them; 

(3) Each stipulation, transcript of 

testimony, and any document or other 

item admitted into evidence; 

(4) Any transcript of a conference or 

hearing before the hearing officer; 

(5) Any amicus briefs filed pursuant 

to § 1081.216; 

(6) With respect to a request to 

disqualify a hearing officer or to allow 

the hearing officer’s withdrawal under 

§ 1081.105(c), each affidavit or 

transcript of testimony taken and the 

decision made in connection with the 

request; 

(7) All motions, briefs, and other 

papers filed on interlocutory appeal; 

(8) All proposed findings and 

conclusions; 

(9) Each written order issued by the 

hearing officer or Director; and 

(10) Any other document or item 

accepted into the record by the hearing 

officer. 

(b) Retention of documents not 

admitted. Any document offered into 

evidence but excluded shall not be 

considered part of the record. The 

Executive Secretary shall retain any 

such document until the later of the 

date upon which an order by the 

Director ending the proceeding becomes 

final and not appealable, or upon the 

conclusion of any judicial review of the 

Director’s order. 

(c) Substitution of copies. A true copy 

of a document may be substituted for 

any document in the record or any 

document retained pursuant to 

paragraph (b) of this section. 

Subpart D—Decision and Appeals 

§ 1081.400 Recommended decision of the 

hearing officer. 

(a) Time period for filing 

recommended decision. Subject to 

paragraph (b) of this section, the hearing 

officer shall file a recommended 

decision no later than 90 days after the 

deadline for filing post-hearing 

responsive briefs pursuant to 

§ 1081.305(b) and in no event later than 

300 days after filing of the notice of 

charges. 

(b) Extension of deadlines. In the 

event the hearing officer presiding over 

the proceeding determines that it will 

not be possible to issue the 

recommended decision within the time 

periods specified in paragraph (a) of this 

section, the hearing officer shall submit 

a written request to the Director for an 

extension of the time period for filing 

the recommended decision. This request 

must be filed no later than 30 days prior 

to the expiration of the time for issuance 

of a recommended decision. The request 

will be served on all parties in the 

proceeding, who may file with the 

Director briefs in support of or in 

opposition to the request. Any such 

briefs must be filed within three days of 

service of the hearing officer’s request 

and shall not exceed five pages. If the 

Director determines that additional time 

is necessary or appropriate in the public 

interest, the Director shall issue an order 

extending the time period for filing the 

recommended decision. 

(c) Content. 

(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, 

probative, and substantial evidence. The 

recommended decision shall include a 

statement of findings of fact (with 

specific page references to principal 

supporting items of evidence in the 

record) and conclusions of law, as well 

as the reasons or basis therefore, as to 

all the material issues of fact, law, or 

discretion presented on the record and 

the appropriate order, sanction, relief or 

denial thereof. The recommended 

decision shall also state that a notice of 

appeal may be filed within 10 days after 

service of the recommended decision 

and include a statement that, unless a 

party timely files and perfects a notice 

of appeal of the recommended decision, 

the Director may adopt the 

recommended decision as the final 

decision and order of the Bureau 

without further opportunity for briefing 

or argument. 

(2) Consistent with paragraph (a) of 

this section, when more than one claim 

for relief is presented in an adjudication 

proceeding, or when multiple parties 

are involved, the hearing officer 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 a recommended decision. 

(d) By whom made. The 

recommended decision shall be made 

and filed by the hearing officer who 

presided over the hearings, except when 

he or she shall have become unavailable 

to the Bureau. 

(e) Reopening of proceeding by 

hearing officer; termination of 

jurisdiction. 

(1) At any time from the close of the 

hearing record pursuant to § 1081.304(c) 

until the filing of his or her 

recommended decision, a hearing 

officer may reopen the proceeding for 

the receipt of further evidence for good 

cause shown. 

(2) Except for the correction of clerical 

errors or pursuant to an order of remand 

from the Director, the jurisdiction of the 

hearing officer is terminated upon the 

filing of his or her recommended 

decision with respect to those issues 

decided pursuant to paragraph (c) of 

this section. 

(f) Filing, service, and publication. 

The hearing officer shall file the 

recommended decision with the 

Executive Secretary. The Executive 

Secretary shall promptly serve the 

recommended decision upon the 

parties. 

§ 1081.401 Transmission of documents to 

Director; record index; certification. 

(a) Filing of index. At the same time 

the hearing officer files the 

recommended decision, the hearing 

officer shall furnish to the Director a 


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certified index of the entire record of the 

proceeding. The certified index shall 

include, at a minimum, an entry for 

each paper, document or motion filed in 

the proceeding, the date of the filing, 

and the identity of the filer. The 

certified index shall also include an 

exhibit index containing, at a minimum, 

an entry consisting of exhibit number 

and title or description for each exhibit 

introduced and admitted into evidence 

and each exhibit introduced but not 

admitted into evidence. 

(b) Final transmittal of record items to 

the Executive Secretary. After the close 

of the hearing, the hearing officer shall 

transmit to the Executive Secretary 

originals of any motions, exhibits or any 

other documents filed with, or accepted 

into evidence by, the hearing officer, or 

any other portions of the record that 

have not already been transmitted to the 

Executive Secretary. 

§ 1081.402 Notice of appeal; review by the 

Director. 

(a) Notice of appeal. 

(1) Filing. Any party may file 

exceptions to the recommended 

decision of the hearing officer by filing 

a notice of appeal with the Executive 

Secretary within 10 days after service of 

the recommended decision. The notice 

shall specify the party or parties against 

whom the appeal is taken and shall 

designate the recommended decision or 

part thereof appealed from. If a timely 

notice of appeal is filed by a party, any 

other party may thereafter file a notice 

of appeal within five days after service 

of the first notice, or within 10 days 

after service of the recommended 

decision, whichever period expires last. 

(2) Perfecting a notice of appeal. Any 

party filing a notice of appeal must 

perfect its appeal by filing its opening 

appeal brief within 30 days of service of 

the recommended decision. Any party 

may respond to the opening appeal brief 

by filing an answering brief within 30 

days of service of the opening brief. Any 

party may file a reply to an answering 

brief within seven days of service of the 

answering brief. These briefs must 

conform to the requirements of 

§ 1081.403. 

(b) Director review other than 

pursuant to an appeal. In the event no 

party appeals the recommended 

decision, the Director shall, within 40 

days after the date of service of the 

recommended decision, either issue a 

final decision and order adopting the 

recommended decision, or order further 

briefing regarding any portion of the 

recommended decision. The Director’s 

order for further briefing shall set forth 

the scope of review and the issues that 

will be considered and will make 

provision for the filing of briefs in 

accordance with the timelines set forth 

in paragraph (a)(2) of this section 

(except that that opening briefs shall be 

due within 30 days of service of the 

order of review) if deemed appropriate 

by the Director. 

(c) Exhaustion of administrative 

remedies. Pursuant to 5 U.S.C. 704, a 

perfected appeal to the Director of a 

recommended decision pursuant to 

paragraph (a) of this section is a 

prerequisite to the seeking of judicial 

review of a final decision and order, or 

portion of the final decision and order, 

adopting the recommended decision.. 

§ 1081.403 Briefs filed with the Director. 

(a) Contents of briefs. Briefs shall be 

confined to the particular matters at 

issue. Each exception to the findings or 

conclusions being reviewed shall be 

stated succinctly. Exceptions shall be 

supported by citation to the relevant 

portions of the record, including 

references to the specific pages relied 

upon, and by concise argument 

including citation of such statutes, 

decisions, and other authorities as may 

be relevant. If the exception relates to 

the admission or exclusion of evidence, 

the substance of the evidence admitted 

or excluded shall be set forth in the 

brief, in an appendix thereto, or by 

citation to the record. Reply briefs shall 

be confined to matters in answering 

briefs of other parties. 

(b) Length limitation. Except with 

leave of the Director, opening and 

answering briefs shall not exceed 30 

pages, and reply briefs shall not exceed 

15 pages, exclusive of pages containing 

the table of contents, table of 

authorities, and any addendum that 

consists solely of copies of applicable 

cases, pertinent legislative provisions or 

rules, and exhibits. Motions to file briefs 

in excess of these limitations are 

disfavored. 

§ 1081.404 Oral argument before the 

Director. 

(a) Availability. The Director will 

consider appeals, motions, and other 

matters properly before him or her on 

the basis of the papers filed by the 

parties without oral argument unless the 

Director determines that the 

presentation of facts and legal 

arguments in the briefs and record and 

decisional process would be 

significantly aided by oral argument, in 

which case the Director shall issue an 

order setting the date on which 

argument shall be held. A party seeking 

oral argument shall so indicate on the 

first page of its opening or answering 

brief. 

(b) Public arguments; transcription. 

All oral arguments shall be public 

unless otherwise ordered by the 

Director. Oral arguments before the 

Director shall be reported 

stenographically, unless otherwise 

ordered by the Director. Motions to 

correct the transcript of oral argument 

shall be made according to the same 

procedure provided in § 1081.304(b). 

§ 1081.405 Decision of the Director. 

(a) Upon appeal from or upon further 

review of a recommended decision, the 

Director will consider such parts of the 

record as are cited or as may be 

necessary to resolve the issues 

presented and, in addition, will, to the 

extent necessary or desirable, exercise 

all powers which he or she could have 

exercised if he or she had made the 

recommended decision. In proceedings 

before the Director, the record shall 

consist of all items part of the record 

below in accordance with § 1081.306; 

any notices of appeal or order directing 

review; all briefs, motions, submissions, 

and other papers filed on appeal or 

review; and the transcript of any oral 

argument held. Review by the Director 

of a recommended decision may be 

limited to the issues specified in the 

notice(s) of appeal or the issues, if any, 

specified in the order directing further 

briefing. On notice to all parties, 

however, the Director may, at any time 

prior to issuance of his or her decision, 

raise and determine any other matters 

that he or she deems material, with 

opportunity for oral or written argument 

thereon by the parties. 

(b) Decisional employees may advise 

and assist the Director in the 

consideration and disposition of the 

case. 

(c) In rendering his or her decision, 

the Director will affirm, adopt, reverse, 

modify, set aside, or remand for further 

proceedings the recommended decision 

and will include in the decision a 

statement of the reasons or basis for his 

or her actions and the findings of fact 

upon which the decision is predicated. 

(d) At the expiration of the time 

permitted for the filing of reply briefs 

with the Director, the Executive 

Secretary will notify the parties that the 

case has been submitted for final Bureau 

decision. The Director will issue and the 

Executive Secretary will serve the 

Director’s final decision and order 

within 90 days after such notice, unless 

the Director orders that the adjudication 

proceeding or any aspect thereof be 

remanded to the hearing officer for 

further proceedings. 

(e) Copies of the final decision and 

order of the Director shall be served 

upon each party to the proceeding, upon 


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other persons required by statute, and, 

if directed by the Director or required by 

statute, upon any appropriate state or 

Federal supervisory authority. The final 

decision and order will also be 

published on the Bureau’s Web site or 

as otherwise deemed appropriate by the 

Bureau. 

§ 1081.406 Reconsideration. 

Within 14 days after service of the 

Director’s final decision and order, any 

party may file with the Director a 

petition for reconsideration, briefly and 

specifically setting forth the relief 

desired and the grounds in support 

thereof. Any petition filed under this 

section must be confined to new 

questions raised by the final decision or 

final order and upon which the 

petitioner had no opportunity to argue, 

in writing or orally, before the Director. 

No response to a petition for 

reconsideration shall be filed unless 

requested by the Director, who will 

request such response before granting 

any petition for reconsideration. The 

filing of a petition for reconsideration 

shall not operate to stay the effective 

date of the final decision or order or to 

toll the running of any statutory period 

affecting such decision or order unless 

specifically so ordered by the Director. 

§ 1081.407 Effective date; stays pending 

judicial review. 

(a) Other than consent orders, which 

shall become effective at the time 

specified therein, an order to cease and 

desist or for other affirmative action 

under section 1053(b) of the Act 

becomes effective at the expiration of 30 

days after the date of service pursuant 

to § 1081.113(d)(2), unless the Director 

agrees to stay the effectiveness of the 

Order pursuant to this section. 

(b) Any party subject to a final 

decision and order, other than a consent 

order, may apply to the Director for a 

stay of all or part of that order pending 

judicial review. 

(c) A motion for stay shall state the 

reasons a stay is warranted and the facts 

relied upon, and shall include 

supporting affidavits or other sworn 

statements, and a copy of the relevant 

portions of the record. The motion shall 

address the likelihood of the movant’s 

success on appeal, whether the movant 

will suffer irreparable harm if a stay is 

not granted, the degree of injury to other 

parties if a stay is granted, and why the 

stay is in the public interest. 

(d) A motion for stay shall be filed 

within 30 days of service of the order on 

the party. Any party opposing the 

motion may file a response within five 

days after receipt of the motion. The 

movant may file a reply brief, limited to 

new matters raised by the response, 

within three days after receipt of the 

response. 

(e) The commencement of 

proceedings for judicial review of a final 

decision and order of the Director does 

not, unless specifically ordered by the 

Director or a reviewing court, operate as 

a stay of any order issued by the 

Director. The Director may, in his or her 

discretion, and on such terms as he or 

she finds just, stay the effectiveness of 

all or any part of an order pending a 

final decision on a petition for judicial 

review of that order. 

Dated: July 22, 2011. 

Sam Valverde, 

Deputy Executive Secretary, Department of 

the Treasury. 

[FR Doc. 2011–19032 Filed 7–25–11; 4:15 pm] 

BILLING CODE 4810–25–P 


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