58832 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Proposed Rules 

1 The comment must be accompanied by an 

explicit request for confidential treatment, 

including the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. 

The request will be granted or denied by the 

Commission’s General Counsel, consistent with 

applicable law and the public interest. See 

Commission Rule 4.9(c), 16 CFR 4.9(c). 

FEDERAL TRADE COMMISSION 

16 CFR Parts 3 and 4 

Rules of Practice 

AGENCY: Federal Trade Commission 

(‘‘Commission’’ or ‘‘FTC’’). 

ACTION: Proposed rule amendments; 

request for public comment. 

SUMMARY: The FTC is proposing to 

amend Parts 3 and 4 of its Rules of 

Practice, in order to further expedite its 

adjudicative proceedings, improve the 

quality of adjudicative decision making, 

and clarify the respective roles of the 

Administrative Law Judge (‘‘ALJ’’) and 

the Commission in Part 3 proceedings. 

DATES: Written comments must be 

received on or before November 6, 2008. 

ADDRESSES: Interested parties are 

invited to submit written comments 

electronically or in paper form. 

Comments should refer to ‘‘Parts 3 and 

4 Rules of Practice Rulemaking— 

P072104’’ to facilitate the organization 

of comments. Please note that comments 

will be placed on the public record of 

this proceeding—including on the 

publicly accessible FTC website, at 

(http://www.ftc.gov/os/ 

publiccomments.shtm) — and therefore 

should not include any sensitive or 

confidential information. In particular, 

comments should not include any 

sensitive personal information, such as 

an individual’s Social Security number; 

date of birth; driver’s license number or 

other state identification number, or 

foreign country equivalent; passport 

number; financial account number; or 

credit or debit card number. Comments 

also should not include any sensitive 

health information, such as medical 

records and other individually 

identifiable health information. In 

addition, comments should not include 

any ‘‘[t]rade secret or any commercial or 

financial information which is obtained 

from any person and which is privileged 

or confidential. . . . ,’’ as provided in 

Section 6(f) of the FTC Act, 15 U.S.C. 

46(f), and Commission Rule 4.10(a)(2), 

16 CFR 4.10(a)(2). Comments containing 

material for which confidential 

treatment is requested must be filed in 

paper form, must be clearly labeled 

‘‘Confidential,’’ and must comply with 

Commission Rule 4.9(c).1

Because paper mail in the Washington 

area, and specifically to the FTC, is 

subject to delay due to heightened 

security screening, please consider 

submitting your comments in electronic 

form. Comments filed in electronic form 

should be submitted by using the 

following weblink: (https:// 

secure.commentworks.com/ftcpart3rules) (and following the 

instructions on the web-based form). To 

ensure that the Commission considers 

an electronic comment, you must file it 

on the web-based form at the weblink: 

(https://secure.commentworks.com/ftcpart3rules). If this document appears at 

(http://www.regulations.gov/search/ 

index.jsp), you may also file an 

electronic comment through that 

website. The Commission will consider 

all comments that regulations.gov 

forwards to it. You may also visit the 

FTC website at www.ftc.gov to read this 

document and the news release 

describing it. 

A comment filed in paper form 

should include the ‘‘Parts 3 and 4 Rules 

of Practice Rulemaking—P072104’’ 

reference both in the text and on the 

envelope, and should be mailed or 

delivered by courier to the following 

address: Federal Trade Commission, 

Office of the Secretary, Room H–135 

(Annex R), 600 Pennsylvania Avenue, 

NW, Washington, DC 20580. 

The Federal Trade Commission Act 

(‘‘FTC Act’’) and other laws the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives, 

whether filed in paper or electronic 

form. Comments received will be 

available to the public on the FTC 

website, to the extent practicable, at 

(http://www.ftc.gov/os/ 

publiccomments.shtm). As a matter of 

discretion, the Commission makes every 

effort to remove home contact 

information for individuals from the 

public comments it receives before 

placing those comments on the FTC 

website. More information, including 

routine uses permitted by the Privacy 

Act, may be found in the FTC’s privacy 

policy, at (http://www.ftc.gov/ftc/ 

privacy.shtm) 

FOR FURTHER INFORMATION CONTACT: 

Michael D. Bergman, Attorney, (202) 

326–3184, or Lisa M. Harrison, 

Attorney, (202) 326–3204, Office of the 

General Counsel, Federal Trade 

Commission, 600 Pennsylvania Avenue, 

NW, Washington DC 20580. 

SUPPLEMENTARY INFORMATION: This 

discussion contains the following 

sections: 

I. Introduction 

II. Section-By-Section Analysis of the 

Proposed Rule Revisions 

III. Invitation to Comment 

IV. Proposed Rule Revisions 

I. Introduction 

A. Need for Reform of the Commission’s 

Adjudicatory Process 

The Commission has periodically 

reviewed its rules and procedures 

governing the process of administrative 

adjudication at the Commission (‘‘Part 3 

Rules’’) to determine if its 

administrative adjudication process can 

be improved, and has made changes it 

considered appropriate. In particular, 

the Commission’s Part 3 adjudicatory 

process has long been criticized as being 

too protracted. See, e.g., FTC v. Freeman 

Hosp., 911 F.Supp. 1213, 1228 n.8 (W.D. 

Mo. 1995) (‘‘The average time from the 

issuance of a complaint by the FTC to 

an initial decision by an administrative 

law judge averaged nearly three years in 

1988. Moreover, additional time will be 

required if that initial decision is 

appealed.’’), aff’d, 69 F.3d 260 (8th Cir. 

1995); see also National Dynamics Corp. 

v. FTC, 492 F.2d 1333, 1335 (2d Cir. 

1974) (remarking upon the ‘‘leisurely 

course typical of FTC proceedings’’); J. 

Robert Robertson, FTC Part III 

Litigation: Lessons from Chicago Bridge 

and Evanston Northwestern Healthcare, 

20 Antitrust 12 (Spring 2006); Report of 

the American Bar Association Section of 

Antitrust Law Special Committee to 

Study the Role of the Federal Trade 

Commission, 58 Antitrust L.J. 43, 116 

n.167 (1989) (‘‘It is disappointing that 

the Commission . . . continues to have 

problems of delay.’’). 

Protracted Part 3 proceedings have at 

least three undesirable consequences. 

First, in merger cases, such protracted 

proceedings may result in parties 

abandoning transactions before their 

antitrust merits can be adjudicated. 

Second, protracted Part 3 proceedings 

may result in substantially increased 

litigation costs for the Commission and 

respondents whose transactions or 

practices are challenged. For example, 

protracted discovery schedules and 

pretrial proceedings can result in 

nonessential discovery and motion 

practice that can be very costly to both 

the Commission and respondents. 

Third, protracted Part 3 proceedings do 

not necessarily result in decisions that 

are more just or fair. To the contrary, 

there is some truth to the adage that 

frequently ‘‘justice delayed, is justice 

denied.’’ 


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Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Proposed Rules 58833 

2 5 U.S.C. 551 et seq. 3 As discussed below in the section-by-section 

summary of the proposed rule revisions, the 

Commission is proposing certain rule revisions to 

rules it implemented previously that had 

lengthened the process. For example, it is proposing 

to revise Rule 3.12(a) (as amended in the 2001 

revisions), which permits the tolling of the period 

to answer the complaint until resolution of certain 

motions, because parties have other procedural 

means available to them that would not unduly 

delay the proceedings. Similarly, the Commission is 

proposing a modest reduction in the period of time 

to schedule an initial pretrial conference under 

Rule 3.21(b) that had been enlarged in the 2001 

revisions. 

4 Final Report of the Attorney General’s 

Committee on Administrative Procedure 16 (1941) 

[hereinafter Attorney General’s Final Report]; see 

also Marc Winerman, The Origins of the FTC: 

Concentration, Cooperation, Control, and 

Competition, 71 Antitrust L.J. 1 (2003) (discussing 

the formation and history of the FTC); D. Bruce 

Hoffman & M. Sean Royall, Administrative 

Litigation at the FTC: Past, Present, and Future, 71 

Antitrust L.J. 319 (2003) (discussing the evolution 

of administrative adjudication at the FTC). 

5 Hoffman & Royall, supra note 4, at 319. 

6 Id. at 319–20. 

7 Id. 

8 Attorney General’s Final Report, supra note 4, 

at 11–18. 

9 Id. at 15. 

10 Id. at 47. 

11 Id. at 45–46. 

12 Attorney General’s Manual on the 

Administrative Procedure Act 74 (1947) [hereinafter 

Attorney General’s Manual]. 

13 See 5 U.S.C. 556(c). 

14 Attorney General’s Manual, supra note 12, at 

74–75. 

To address these concerns, the 

Commission has periodically engaged in 

reform efforts to minimize delay and 

improve the quality of the 

administrative decisionmaking process 

in a fair manner fully consistent with 

the Administrative Procedure Act 

(‘‘APA’’)2 without prejudicing the due 

process rights of the parties in these 

proceedings. For example, in 1994 the 

Commission adopted a guideline to 

expedite the preparation and issuance of 

final orders and opinions from an initial 

decision. See (http://www.ftc.gov/os/ 

adjpro/adjproprepprocedures.pdf). In 

1996, the Commission adopted the ‘‘fast 

track’’ procedure in Rule 3.11A and 

other changes. 61 FR 50640 (Sept. 26, 

1996). In 2001, the Commission issued 

another package of approximately 

twenty rule changes, 66 FR 17622 (Apr. 

3, 2001),3 and has implemented other 

rule changes throughout the past 

decade. 

More recently, Commission staff 

engaged in a broad and systematic 

internal review to further improve its 

Part 3 practices and procedures in light 

of the Commission’s recent adjudicatory 

experiences. The goal of this effort was 

for significant improvement in the Part 

3 process through comprehensive 

review rather than piecemeal 

modifications of a limited number of 

rules, to ensure that the rules are 

consistent with one another and that 

they are workable in practice. 

Discussions involved input from various 

Bureaus within the Commission, the 

Office of the General Counsel, the Office 

of the Administrative Law Judges, an 

evaluation of the rules and procedures 

of the federal courts and other agencies’ 

adjudicative procedures, as well as the 

legal standards imposed by the APA. 

The Commission believes that any 

adjudicative process should balance 

three factors: the public interest in a 

high quality decisionmaking process; 

the interests of justice in an expeditious 

resolution of litigated matters; and the 

very real interest of the parties in 

litigating matters economically without 

unnecessary expense. For example, in 

principle, high quality expeditious 

adjudications may impose costs on the 

parties or the agency that they may not 

need to bear if the demands of a given 

case permit a more leisurely 

adjudicative process. Alternatively, 

attempts to increase efficiency or 

decrease costs to those involved could 

lead to trade offs in the quality of the 

ultimate result. The Commission 

believes that these comprehensive 

proposed rule revisions would strike an 

appropriate balance between the need 

for fair process and quality 

decisionmaking, the desire for efficient 

and speedy resolution of matters, and 

the potential costs imposed on the 

Commission and the parties. 

B. Respective Roles of the Commission 

and the Administrative Law Judge 

The Commission was established by 

Congress and President Woodrow 

Wilson in 1914 to be an expert, 

specialized agency providing guidance 

to consumers and the business 

community on sophisticated questions 

involving unfair methods of 

competition, later expanded to issues 

involving unfair or deceptive acts or 

practices.4 To accomplish this goal, it 

was provided the authority not only to 

prosecute cases and serve as a ‘‘think 

tank’’ making policy, but also to 

adjudicate its own cases and render 

decisions.5 Congress determined that 

the Commission could use its expertise 

and administrative adjudicative powers 

as a ‘‘uniquely effective vehicle for the 

development of antitrust law in 

complex settings in which the agency’s 

expertise [could] make a measurable 

difference.’’6 Certainty, consistency and 

accuracy in Commission decisions 

could serve as a tool not only to 

improve the resolution of individual 

cases, but to provide broad guidance to 

industry and the public and help set the 

policy agenda.7

In the influential 1941 report by the 

Attorney General that became the basis 

for the subsequently enacted APA, the 

Attorney General identified numerous 

advantages to administrative 

adjudications: for example, the potential 

for uniformity of decisions, efficiency, 

and the inability of courts to handle the 

volume of suits heard by administrative 

agencies.8 One of the most critical 

advantages, and a cornerstone 

characteristic of administrative 

agencies, is expertise. The Congress and 

the Executive have long recognized that 

the ability of agencies to devote 

continuous time, supervision, and 

expertise to complex problems calling 

for specialized knowledge is a critical 

advantage and an important reason for 

the creation of administrative agencies.9

With its expertise and unique 

institutional tools, the Commission was 

created to be—and continues to function 

as—a forum for expert adjudication. 

The Attorney General’s Final Report 

also described the role of hearing 

examiners (the predecessor to ALJs) in 

all agencies that use them. The report 

observed that the hearing examiner 

‘‘plays an essential part of the process 

of hearing and deciding’’ given the 

difficulty for busy agency heads to 

fulfill these roles.10 Specifically, the 

Report discussed the importance of 

having a presiding officer, such as an 

ALJ, hear the evidence and make an 

initial decision or recommendation 

because agency heads may lack the time 

to ‘‘read the voluminous records and 

winnow out the essence of them.’’11 The 

Attorney General’s Manual on the APA 

further explained that a general 

statutory purpose of the APA was to 

‘‘enhance[] the status and role of hearing 

officers’’ and, because the APA vests in 

the ALJs the enumerated powers to the 

extent that such powers have been given 

to the agency itself, ‘‘an agency is 

without power to withhold such powers 

from its hearing officers.’’12 ALJs have 

wide ranging authority under the 

APA.13

At the same time, the APA specifies 

that such authority is ‘‘subject to the 

published rules of the agency,’’ which 

‘‘is intended to make clear the authority 

of the agency to lay down policies and 

procedural rules which will govern the 

exercise of such powers by [ALJs].’’14

Thus, the Supreme Court ‘‘has for more 

than four decades emphasized that the 

formulation of procedures was basically 

to be left within the discretion of the 

agencies to which Congress had 

confided the responsibility for 

substantive judgments.’’ Vermont 


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58834 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Proposed Rules 

15 16 CFR 0.14. 

16 16 CFR 3.42(c). 

Yankee Nuclear Power Corp. v. Natural 

Resources Defense Council, Inc., 435 

U.S. 519, 524 (1978). In accordance with 

the APA, the Commission’s rules 

contemplate an important role for its 

ALJs not only in ensuring a fair and 

orderly process but also in assuring the 

public that the Commission’s 

proceedings are fair. Under Rule 0.14, 

the Commission delegates to the ALJs 

‘‘the initial performance of statutory 

fact-finding functions and initial rulings 

on conclusions of law, to be exercised 

in conformity with Commission 

decisions and policy directives and with 

its Rules of Practice.’’15 Further, Rule 

3.42(c) provides that presiding officials 

‘‘shall have the duty to conduct fair and 

impartial hearings, to take all necessary 

action to avoid delay in the disposition 

of proceedings, and to maintain order,’’ 

and that they shall have ‘‘all powers 

necessary to that end.’’16 The 

Commission believes that the following 

proposed rule revisions would ensure 

the proper balance between the 

Commission’s expertise and the 

important function to be served by its 

ALJs. 

These proposed rule provisions can 

be considered an important first step, 

but not the end of the process. To 

expedite such reforms, the Commission 

intends to establish an internal Standing 

Rules Committee to address potential 

rule changes that may be needed in the 

future, with this standing committee’s 

recommendations to be reviewed 

annually by the Commission. We 

recognize that, if adopted, the amended 

rules’ use in actual litigation, the 

comments invited by this document, as 

well as future events, may reveal the 

need for further amendments, and that 

a standing committee could ensure that 

the Commission’s rules remain current. 

The Commission also announces today 

its intention to make best efforts to 

expedite its preparation and disposition 

of final orders and opinions in its 

review of initial decisions in 

adjudicatory proceedings. The 

Commission understands that public 

concern about Part 3 delay is not limited 

to the proceedings before the ALJ, but 

extends to the delay occasionally 

incurred by Commission resolution of 

appeals of initial decisions. The 

Commission intends to expedite all 

phases of the Part 3 process. 

C. Overview of Proposed Rule Revisions 

The Commission staff’s effort has 

culminated in comprehensive and 

systematic proposed rule changes. We 

believe that administrative rules that 

bring the Commission’s expertise into 

play earlier and more often during the 

Part 3 process will likely further the 

Congressional purpose that the 

Commission be a proper forum for 

expert adjudication and ensure the high 

quality of the Commission’s 

decisionmaking. For ease of reference, 

the proposed revisions discussed in the 

following section can be organized into 

certain categories, generally designed to 

improve the quality of decisionmaking 

or to expedite the Part 3 process by 

imposing stricter deadlines throughout 

the prehearing or hearing process, or by 

giving the Commission the authority to 

intercede earlier in the proceedings. 

Tighter time limits. Several of the 

proposed rule revisions allow the ALJ or 

the Commission to impose tighter time 

periods during the adjudicatory process. 

For example, Rule 3.1 would provide 

that the ALJ or the Commission may 

shorten any time periods set in the rules 

provided that no party will be unfairly 

prejudiced. Rule 3.11 would require that 

the date of the evidentiary hearing be set 

in the notice accompanying the 

complaint, which would be 5 months 

from the date of the complaint in merger 

cases and 8 months from the date of the 

complaint in non-merger cases, unless 

the Commission orders otherwise. Rule 

3.12 would require the respondent to 

file its answer within 14 days of service 

of the complaint, instead of 20. Rule 

3.21 would impose strict deadlines on 

prehearing procedures, including 

requiring that the parties’ initial meet 

and confer session and the initial 

scheduling conference take place 

shortly after the answer is filed. Rule 

3.51 would be amended to eliminate the 

authority of the ALJ to extend the oneyear deadline for filing initial decisions, 

and would provide that any extensions 

be approved by the Commission only 

where it finds there are ‘‘extraordinary 

circumstances.’’ 

Earlier Commission involvement. 

Other proposed rule revisions are 

intended to ensure that the Commission 

is appropriately involved earlier in the 

adjudicatory process. For example, 

Rules 3.22 and 3.24 would provide 

authority to the Commission to decide 

in the first instance all dispositive 

prehearing motions, including motions 

for summary decision, unless it refers 

the motion to the ALJ, while at the same 

time ensuring that the underlying 

proceedings are not stayed pending 

resolution of the dispositive motion 

absent a Commission order. The 

proposed revisions are intended to 

avoid the substantial delay that can 

result from an erroneous ruling by the 

ALJ on legal and policy issues that are 

within the Commission’s expertise. Rule 

3.42 would expressly provide authority 

for the Commission or an individual 

Commissioner to preside over discovery 

and other prehearing proceedings before 

transferring the matter to the ALJ. 

Discovery and motion practice 

reforms. Other proposed rule changes 

are intended to expedite and improve 

the quality of the proceedings by 

making the discovery process and 

motion practice more efficient. For 

example, Rule 3.22 would impose word 

count limits on both dispositive and 

nondispositive motions. Rule 3.31 

would limit the scope of the search for 

discoverable materials for complaint 

counsel, respondents, and third parties 

to minimize the burden and costs of 

searching for materials that are likely 

either duplicative or privileged, unless 

there has been a sufficient showing of 

need. Rule 3.31 would also expressly 

limit waivers resulting from the 

inadvertent disclosure of privileged 

materials. Rule 3.31 would further 

require the ALJ to issue a standard 

protective order that is intended to limit 

delay from negotiations and disputes 

arising from case-specific orders and to 

ensure that privileged information, 

competitively sensitive information, and 

personally sensitive information are 

treated consistently in all Part 3 cases. 

A new Rule 3.31A would govern expert 

discovery and would impose strict 

deadlines, to begin essentially at the end 

of fact discovery, to identify expert 

witnesses and to submit expert reports 

and rebuttal expert reports, and would 

limit each side to 5 expert witnesses 

unless there are ‘‘extraordinary 

circumstances.’’ Rule 3.36 would 

impose a heightened requirement for 

subpoenas issued to component offices 

of the Commission that are not involved 

in the litigation. Rule 3.37 would 

specify procedures governing the 

exchange of relevant ‘‘electronically 

stored information,’’ and Rule 3.38 

would be amended to impose strict 

deadlines and word count limits to 

resolve motions to compel discovery. 

Hearings. Other proposed rule 

revisions are intended to expedite and 

streamline the evidentiary hearing. For 

example, Rule 3.41 would limit the 

length of hearings to 210 hours—the 

equivalent of 30 seven-hour trial days— 

unless there is a showing of ‘‘good 

cause,’’ would limit each side to one 

half of the trial time, and would limit 

the length of opening and closing 

arguments. Rule 3.43 would be revised 

to expressly permit at the hearing the 

use of hearsay evidence—including 

prior testimony—if sufficiently reliable, 

as well as the admission of relevant 

statements or testimony by a partyopponent and the self-authentication 


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Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Proposed Rules 58835 

17 5 U.S.C. 554, 556–57. 

18 5 U.S.C. 554. 

and admission of third party 

documents. Rule 3.44 would require 

that witness testimony be video 

recorded digitally and made part of the 

official record so that the Commission, 

if appropriate, can make an independent 

assessment of witness demeanor. Rule 

3.46 would impose strict deadlines for 

the simultaneous filing of proposed 

findings, conclusions, and supporting 

briefs. 

Initial decision and Commission 

review. As noted above, Rule 3.51 

would maintain the one-year deadline 

for the issuance of the initial decision 

(except where the Commission 

otherwise orders), but would require 

that the initial decision be issued within 

70 days of the last filed proposed 

findings. Rule 3.52 would be revised to 

shorten the lengths of principal briefs 

on appeal to the Commission to 14,000 

words and reply briefs to 7,000 words, 

lengths consistent with the approach 

taken in the Federal Rules of Appellate 

Procedure, unless otherwise permitted 

by the Commission. In this regard, the 

Commission notes that it has the benefit 

of all the briefs, legal memoranda, and 

proposed findings of fact that the parties 

have submitted to the ALJ. 

Finally, the Commission intends to 

make certain technical revisions 

throughout the rules including, for 

example, eliminating the convention of 

specifying numbers in both written and 

numerical form, and substituting 

gender-neutral language. 

The proposed rule revisions relate 

solely to agency practice and, thus, are 

not subject to the notice and comment 

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

553(a)(2). Although the proposed rule 

revisions are exempt from these 

requirements, the Commission invites 

comment on them before deciding 

whether to adopt them. The proposed 

revisions are also not subject to the 

requirements of the Regulatory 

Flexibility Act, 5 U.S.C. 601(2) and the 

requirements of the Paperwork 

Reduction Act, 44 U.S.C. 

3518(c)(1)(B)(ii); 5 CFR 1320.4 

(exempting information collected during 

the conduct of administrative 

proceedings or investigations). 

II. Section-By-Section Analysis of the 

Proposed Rule Revisions 

The following is a section-by-section 

analysis of the proposed revisions to 

Part 3 of the Commission’s Rules, and 

the proposed revision to Rule 4.3, which 

would allow for extensions in certain 

circumstances of the time limits in the 

Part 3 Rules. 

Subpart A—Scope of Rules; Nature of 

Adjudicative Proceedings 

Section 3.1: Scope of the rules in this 

part. 

The Rule would be amended to state 

that the Part 3 Rules generally apply 

only to ‘‘formal’’ adjudicative 

proceedings. This change, if adopted, 

would clarify that the Part 3 Rules 

generally apply only to the types of 

adjudication governed by the 

adjudication provisions in the APA.17

These provisions only govern cases of 

‘‘adjudication required by statute to be 

determined on the record after 

opportunity for an agency hearing.’’18

Rule 3.2, as amended, would specify 

further the types of adjudicative 

proceedings that are subject to the Part 

3 Rules. 

The Rule would be amended further 

to allow the ALJ or the Commission to 

shorten time periods set by the Rule, 

provided that the shortened time 

periods would not unfairly prejudice 

any party. This authority could be used 

in proceedings where expedited 

procedures would serve the public 

interest (e.g., unconsummated mergers) 

or where the issues do not require 

elaborate discovery or evidentiary 

hearings (e.g., cases where the parties 

agree that a copious evidentiary record 

already exists that merely needs to be 

supplemented). 

Section 3.2: Nature of adjudicative 

proceedings. 

The technical revisions to this Rule 

would clarify that Commission 

consideration of consent orders—in 

addition to negotiations of consent 

orders—are not adjudicative 

proceedings. The proposed changes also 

omit from the list of excluded items 

proceedings under specific statutes that 

have rarely occurred in recent decades. 

Subpart B—Pleadings 

Section 3.11: Commencement of 

proceedings. 

The proposed Rule amendment 

specifies that the actual date for the 

evidentiary hearing would be 5 months 

from the date the complaint is issued in 

merger cases and 8 months from the 

date of the complaint in all other cases. 

The proposed change would also give 

the Commission discretion to determine 

a different date for the evidentiary 

hearing when it issues the complaint. 

As amended, Rule 3.21(c), discussed 

below, would provide that the hearing 

date can be extended by the 

Commission for good cause after the 

complaint is issued. 

In most cases where the issues are not 

exceptionally complex and the 

premerger process has been complete, 

the Commission believes a 5-month 

complaint-to-evidentiary-hearing 

process should be feasible. Considering 

the ‘‘safety valve’’ built into the 

proposed Rule and the ability of 

respondents’ counsel to engage in precomplaint meetings with the 

Commissioners where they might 

advocate for longer post-complaint 

discovery periods, the proposed Rule 

would appear to be flexible enough to 

accommodate the exceptional case. 

Similarly, the Commission believes a 8- 

month complaint-to-evidentiary-hearing 

process is feasible for all other cases. 

Here too, the amended language, if 

adopted, would be broad enough to 

allow the Commission either to set a 

later hearing date at the time it issues 

the complaint or, under amended Rule 

3.21(c), to entertain a request for more 

time upon a showing of good cause 

post-complaint. 

Proposed Rule 3.11 would also delete 

paragraph (c), which has allowed the 

respondent to file a motion for more 

definite statement. If a respondent elects 

to file such a motion, or any other 

motion, it tolls the deadline for 

respondent to file an answer to the 

complaint that would result in 

substantial delay in the proceedings. 

The proposed Rule revision would still 

provide the respondent an opportunity 

to raise similar objections and to file a 

motion to dismiss, but under the 

proposed amendment to Rule 3.22(b) 

discussed below, the Commission’s 

consideration of the motion would not 

stay proceedings before the ALJ unless 

the Commission so orders. 

These proposed amendments to Rule 

3.11 are intended to expedite cases by 

requiring the Commission to set a fixed 

deadline for the start of the evidentiary 

hearing and the ALJ and the parties to 

adhere to the deadline. 

Section 3.12: Answer. 

The proposed Rule amendment would 

shorten the current deadline in 

paragraph (a) for filing an answer from 

20 to 14 days, a time period that should 

be sufficient for parties who, during the 

course of the precomplaint 

investigation, have become familiar 

with the issues. The proposed Rule 

revision would also eliminate the 

provision in paragraph (a) that allows 

the filing of any motion to toll the 

deadline for respondent to file an 

answer to the complaint, which had 

been added by the Commission in its 


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58836 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Proposed Rules 

19 66 FR 17622 (Apr. 3, 2001). 

20 See Attorney General’s Final Report, supra 

note 4, 45–46. 

21 66 FR 17622 (Apr. 3, 2001). 

2001 Rule amendments.19 The 

Commission believes the Rule, if 

amended as proposed in this document, 

would result in an earlier prehearing 

conference, earlier discovery, and a 

more expeditious closure to the 

proceeding. 

The proposed changes to paragraphs 

(b) and (c) would remove the ALJ’s 

authority to render an initial decision 

when the allegations of the complaint 

are admitted or there is a default. 

Instead, the Commission would render 

its final decision on the basis of the facts 

alleged in the complaint. One rationale 

for the provision of ‘‘hearing officers’’ 

(the predecessor to ALJs) in the APA 

was to alleviate the burden on agency 

heads of hearing evidence and 

reviewing a voluminous record.20 When 

those burdens do not exist, it will likely 

be more efficient for the Commission to 

issue a final opinion and order without 

the intermediate step of an ALJ’s initial 

decision. 

Subpart C—Prehearing Procedures; 

Motions; Interlocutory Appeals; 

Summary Decisions 

Section 3.21: Prehearing procedures. 

As amended, Rule 3.21(a) would 

require that the parties’ initial meet-andconfer session take place within 5 days 

of the answer and would require the 

parties to discuss electronically stored 

information (ESI) at that time, including 

the scope of and the time period for the 

exchange of ESI and the format for 

exchanging such information. This 

change is intended to help expedite the 

case and facilitate resolution of 

production issues in ways that 

minimize costs. Rule 3.21(a) would also 

be modified by deleting a phrase that 

suggested that the parties should 

discuss a proposed hearing date 

because, under proposed Rule 3.11, 

such a date will already have been set 

by the Commission when it issued the 

complaint, and under proposed Rule 

3.21(c), that date could be modified by 

the Commission upon a showing of 

good cause. Rule 3.21(a), as amended, 

would also specify broad subjects to be 

discussed at the parties’ meet and confer 

session(s) before the scheduling 

conference. 

Revised paragraph (b) would advance 

the deadline for the scheduling 

conference from 14 days after the 

answer is filed to 10 days after the 

answer is filed. Although the 

Commission extended the deadline to 

14 days in 2001,21 it believes the 10-day 

deadline is reasonable for most cases. In 

extraordinary circumstances, the 

scheduling conference can be 

postponed. Revised paragraph (b) would 

include additional items to be discussed 

at the scheduling conference, such as 

stages of the proceeding that may be 

expedited. The proposed revisions 

contemplate that the parties would 

inform the ALJ of the results of their 

meeting(s) pursuant to paragraph (a) 

regarding their proposed discovery plan, 

including the disclosure of ESI, and that 

the ALJ would incorporate in the 

scheduling order a discovery plan that 

he or she deems appropriate. 

Revised paragraph (c)(1) would 

specify that the ALJ’s scheduling order 

will establish a schedule of proceedings 

that will permit the evidentiary hearing 

to commence on the date set by the 

Commission. The Rule would also state 

that the Commission may, upon a 

showing of good cause, order a later 

date for the evidentiary hearing than the 

one specified in the complaint. The 

proposed deadline for the prehearing 

scheduling conference and order and 

the more detailed requirements for both 

are intended to help keep the prehearing 

proceedings on track and enable the 

parties to contribute to a high quality 

record on which the ALJ can base his or 

her decisions. 

Revised paragraph (c)(2) would be 

revised to authorize the ALJ to extend, 

upon a showing of good cause, any 

deadline in the scheduling order other 

than the date of the evidentiary hearing. 

Revised paragraph (f) would state that 

the ALJ shall hold additional prehearing 

and status conferences or enter 

additional orders as may be needed to 

‘‘ensure the just and expeditious 

disposition of the proceeding and to 

avoid unnecessary cost.’’ 

Section 3.22: Motions. 

Revised Rule 3.22(a) would give the 

Commission the opportunity to rule on 

motions to strike, motions for summary 

decision, and prehearing motions to 

dismiss, but the Commission may refer 

such motions back to the ALJ. This 

proposal allows the Commission to 

decide legal questions and articulate 

applicable law when the parties raise 

purely legal issues. In addition, an early 

ruling on a dispositive motion may 

expedite resolution of a matter and save 

litigants resources where the legal issue 

is the primary dispute. The Commission 

followed a similar approach in South 

Carolina State Board of Dentistry when 

it retained jurisdiction to hear motions 

to dismiss. See In re South Carolina 

State Bd. of Dentistry, 136 F.T.C. 229 

(2004). This proposal codifies that 

approach, giving the Commission more 

flexibility to determine the law and 

resolve matters expeditiously.The 

revised Rule would also provide that 

rulings on motions to dismiss based on 

alleged failure to establish a prima facie 

case shall be deferred until after the 

hearing record is closed. The current 

provision for a recommended ruling by 

the ALJ when certifying to the 

Commission a motion outside his or her 

authority to decide would be 

eliminated. 

The Commission anticipates that new 

paragraphs (b) and (e) would expedite 

cases by providing that proceedings 

before the ALJ will not be stayed while 

the Commission considers a motion, 

unless the Commission orders 

otherwise, and would require the ALJ to 

decide motions within 14 days of 

briefing of the motion. 

Re-designated paragraph (c) would 

impose word count limits on motion 

papers. Dispositive motions would be 

limited to 10,000 words (approximately 

40 double-spaced pages), and nondispositive motions would be limited to 

2,500 words (approximately 10 doublespaced pages). 

Re-designated paragraph (d) would be 

modified to provide an automatic right 

of reply in support of dispositive 

motions. Further, paragraph (d) would 

state that: ‘‘Reply and surreply briefs to 

motions other than dispositive motions 

shall be permitted only in 

circumstances where the parties wish to 

draw the ALJ’s or the Commission’s 

attention to recent important 

developments or controlling authority 

that could not have been raised earlier 

in the party’s principal brief.’’ There 

would also be a 5-day filing deadline for 

any authorized reply to a motion. 

Current paragraph (e) would be 

eliminated, and current paragraph (f) 

would be redesignated as paragraph (g). 

Section 3.23: Interlocutory appeals. 

The revised Rule would continue to 

permit the parties to seek discretionary 

review of certain interlocutory rulings 

by the ALJ. Paragraph (a) would leave 

unchanged the types of rulings that the 

parties can ask the Commission to 

review without a determination by the 

ALJ that interlocutory review is 

appropriate. Paragraph (b) would 

continue to permit interlocutory appeals 

of other rulings only on a determination 

that the ruling ‘‘involves a controlling 

question of law or policy as to which 

there is substantial ground for difference 

of opinion and that an immediate 

appeal from the ruling may materially 

advance the ultimate termination of the 

litigation or subsequent review will be 

an inadequate remedy.’’ 


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22 60 FR 39741 (Aug. 3, 1995). 23 Id. 24 Id. 

25 See In re Equitable Resources, Inc., No. 9322, 

2007 F.T.C. LEXIS 49 (May 30, 2007); 60 FR 39640, 

39641 (Aug. 3, 1995). 

In order to reduce delay, the revised 

Rule would require the ALJ to make his 

or her determination whether the 

application for review involves such a 

controlling question within three days 

after the filing by a party of a request for 

such a determination. It would 

eliminate the requirement that the ALJ 

provide a written justification for his or 

her determination. The revised Rule 

would allow the party to file its 

application for review with the 

Commission if the ALJ does not make a 

timely ruling on its request for a 

determination on the appropriateness of 

review. 

Because the pendency of an 

application for review may leave a 

cloud over the proceeding before the 

ALJ, the revised Rule would also 

provide a default if the Commission 

fails to act quickly on the application. 

The revised Rule would provide that, 

unless the Commission decides to 

entertain the appeal within three days 

after the filing of the application and 

answer, the request for discretionary 

review will be deemed to be denied. 

This would not constitute an affirmance 

of the ALJ’s ruling on the merits. Also, 

to avoid unnecessary delay, the revised 

Rule would set shorter deadlines for the 

filing of applications and answers and, 

to reduce burdens, impose tighter limits 

than the current Rule on the length of 

these filings. The Commission, however, 

would retain authority to direct 

additional briefing. 

Section 3.24: Summary decisions. 

The revised Rule would accommodate 

the proposed amendment to Rule 3.22 

providing that dispositive motions will 

be decided initially by the Commission 

unless referred by the Commission to 

the ALJ. At the same time, it would also 

require that motions be filed not later 

than 30 days before the evidentiary 

hearing, rather than 20 days as in the 

current Rule. It would extend the 

deadline for filing affidavits in 

opposition to a summary decision 

motion from 10 to 14 days. Because the 

moving party may have had months to 

prepare its motion and supporting 

papers, the revised Rule would allow 

slightly more time than the current Rule 

for the opposing party to compile, 

authenticate, and perform the other 

research necessary to respond. Finally, 

the proposed Rule would eliminate the 

30-day deadline for ruling on the 

motion but allow the Commission to set 

a deadline for decision when referring a 

summary decision motion, or any other 

dispositive motion, to the ALJ. In any 

event, under revised Rule 3.22(b), the 

filing of a motion under this Rule would 

not stay the proceeding before the ALJ. 

Rule 3.26: Motions following denial of 

preliminary injunctive relief. 

The Commission adopted the current 

version of Rule 3.26 in connection with 

a 1995 policy statement, which 

explained the process the Commission 

follows in deciding whether to pursue 

administrative litigation of a merger 

case following the denial of a 

preliminary injunction.22 The statement 

noted that the ‘‘Commission was created 

in part because Congress believed that a 

special administrative agency would 

serve the public interest by helping to 

resolve complex antitrust questions’’ 

and that it was expected that ‘‘an 

administrative agency was especially 

suited to resolving difficult antitrust 

questions, and that the FTC should be 

the principal fact finder in the 

process.’’23

According to the statement, ‘‘[i]n any 

given case, the evidence, arguments, 

and/or opinion from the preliminary 

injunction hearing may, or may not, 

suggest that further proceedings would 

be in the public interest. The 

Commission’s guiding principle is that 

the determination whether to proceed in 

administrative litigation following the 

denial of a preliminary injunction and 

the exhaustion or expiration of all 

avenues of appeal must be made on a 

case-by-case basis.’’24 The Commission 

adopted Rule 3.26 to provide a formal 

mechanism for making this 

determination. 

The Commission proposes to revise 

provisions in the Rule that grant an 

automatic withdrawal from adjudication 

of the Part 3 case upon the filing of a 

motion to withdraw from adjudication 

or an automatic stay upon the filing of 

a motion to dismiss. An automatic 

withdrawal from adjudication or stay 

might well be appropriate if the denial 

of preliminary injunctive relief typically 

warranted terminating the Part 3 case. 

But the Part 3 proceeding is the suitable 

forum for deciding the merits, see FTC 

v. Whole Foods Market, Inc., 533 F.3d 

869, 875–76 (D.C. Cir. 2008) (‘‘[A] 

district court must not require the FTC 

to prove the merits, because, in a [5 

U.S.C.] § 53(b) preliminary injunction 

proceeding, a court ‘is not authorized to 

determine whether the antitrust laws . . . 

are about to be violated.’ That 

responsibility lies with the FTC.’’) 

(quoting FTC v. Food Town Stores, Inc., 

539 F.2d 1339, 1342 (4th Cir. 1976)). 

Thus, the Commission believes the 

norm should be that the Part 3 case can 

proceed even if a court denies 

preliminary relief. If that is the norm, 

routine withdrawals from adjudication 

or stays of proceedings before the ALJ 

could unnecessarily delay the typical 

Part 3 case in which ancillary relief has 

been denied. The proposed Rule would 

allow the Part 3 case to proceed unless 

the Commission determines, on the facts 

of the particular case, that a withdrawal 

or stay is appropriate. 

The revised Rule would also make 

explicit that a motion to dismiss or 

withdraw may be filed only after the 

Commission has an opportunity to seek 

reconsideration and appellate review of 

a denial of injunctive relief.25 The 

revision would also prescribe the same 

word count limits for memoranda 

supporting or opposing these motions as 

for motions to dismiss filed under Rule 

3.22(a) and eliminate the special 

limitation for printed filings. 

Subpart D—Discovery; Compulsory 

Process 

Section 3.31: General discovery 

provisions. 

Paragraph (b) of Rule 3.31 would be 

amended to specify that the documents 

to be disclosed as part of the parties’ 

mandatory initial disclosures include 

declarations or affidavits, as well as 

transcripts of investigational hearings 

and depositions, and that initial 

disclosures also include ESI. The 

reference to ESI would update the term 

‘‘data compilations’’ and would parallel 

the 2006 amendment to Fed. R. Civ. 

Proc. 26(a)(1)(B). The proposed 

limitations on disclosure of ESI in 

paragraph (c)(3) follow Fed. R. Civ. P. 

26(b)(2)(B). In particular, the proposed 

provision in paragraph (c)(3) that a party 

need not provide discovery of ESI from 

sources that the party identifies as not 

reasonably accessible because of undue 

burden or cost is anticipated to reduce 

delays and costs to the parties. 

As discussed below, the Commission 

proposes to treat expert discovery in a 

new Rule 3.31A, and therefore the 

provisions in paragraphs (b) and (c) of 

Rule 3.31 governing expert discovery 

would be eliminated. 

The proposed changes to paragraph 

(c)(2) would limit the scope of discovery 

for complaint counsel, respondents, and 

third parties who receive a discovery 

request. Complaint counsel would only 

need to search for materials that were 

collected or reviewed in the course of 

the investigation of the matter or 

prosecution of the case and that are in 

the possession, custody or control of the 

Bureaus or Offices of the Commission 

that investigated the matter, including 


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26 FTC Act, 6(f), 21(d)(1)(B), 15 U.S.C. 46(f), 57b– 

2(d)(1)(B). 

the Bureau of Economics. The ALJ could 

authorize for good cause additional 

discovery of materials in the possession, 

custody, or control of those Bureaus or 

Offices, or authorize other discovery 

pursuant to § 3.36. Neither complaint 

counsel, respondent, nor a third party 

receiving a discovery request under 

these rules would be required to search 

for materials generated and transmitted 

between an entity’s counsel (including 

counsel’s legal staff or in-house counsel) 

and not shared with anyone else, or 

between complaint counsel and nontestifying Commission employees, 

unless the ALJ determines there is good 

cause to provide such materials. These 

materials are frequently duplicative of 

materials held by the parties and 

moreover, are almost always protected 

by the deliberative process or attorneyclient privileges, or as work product. 

Paragraph (d) would be revised to 

direct the ALJ to issue a standard 

protective order (provided as an 

appendix to this Rule) governing the use 

of confidential materials obtained in 

discovery. The Commission believes a 

standard order would eliminate the 

delay resulting from negotiations and 

disputes over case-specific orders and 

improve quality and reduce agency 

costs by ensuring that discovery 

materials are handled uniformly and in 

a manner that is fully consistent with 

the FTC’s statutory obligations with 

respect to materials it receives from 

private parties. 

Paragraph (h), as revised, would 

address the resources used to avoid the 

risk of privilege and work product 

waiver, which add to the costs and 

delay of discovery. The risk of waiver, 

and the time and effort needed to avoid 

it, are aggravated when the party is 

producing ESI. The revised Rule would 

limit the risk of waivers resulting from 

inadvertent disclosures as long as 

parties take reasonable measures to 

protect privileged materials. The Rule 

would not address obligations imposed 

by state bar rules on attorneys who 

receive materials that appear to be 

subject to a privilege claim. 

The FTC Act requires the Commission 

to protect ‘‘privileged or confidential’’ 

information.26 By providing that the 

Commission would not treat genuinely 

inadvertent disclosures as waivers of 

privilege claims, this proposed Rule, 

together with the relevant provisions of 

the FTC Act, is intended to assure 

respondents and third parties alike that 

if otherwise privileged materials end up 

in the hands of the FTC, they will not 

readily find their way into the public 

record. In this regard, the protective 

order would expressly include 

privileged information in the order’s 

definition of ‘‘confidential materials’’ 

subject to the protective order. 

Paragraph 3.31(i), as revised, would 

prohibit the filing of discovery materials 

with the Office of the Secretary, the ALJ, 

or otherwise providing such materials to 

the Commission, except when used to 

support or oppose a motion or to offer 

as evidence. This proposed change is 

similar to Fed. R. Civ. P. 5(d), which 

generally prohibits the filing of 

discovery material unless ordered by the 

court or used in the proceeding. 

The revised Rule would also make 

technical revisions to the current Rule. 

Section 3.31A: Expert discovery. 

New Rule 3.31A would mandate a 

schedule for the disclosure of potential 

expert witnesses, the production of 

expert reports, and the start and 

completion of expert depositions. This 

Rule would incorporate and revise 

certain provisions now contained in 

current Rule 3.31(b) and (c). The 

scheduling provisions are intended to 

provide for expert discovery in a more 

orderly and expeditious manner than 

what has occurred in past proceedings. 

The Rule would not permit expert 

discovery to begin until fact discovery is 

essentially completed. The Commission 

believes that discovery of experts, 

including the production of expert 

reports, will be less than thorough if 

facts potentially relevant to their 

opinions have yet to be discovered. The 

Rule would also limit the number of 

expert witnesses to 5 per side, but 

would allow a party to seek leave to call 

additional expert witnesses in 

extraordinary circumstances. It has been 

the Commission’s experience that 5 

expert witnesses per side is sufficient 

for each party to present its case. 

The Rule would require that each 

expert who will testify at the 

evidentiary hearing produce a written 

report, thereby eliminating the ALJ’s 

authority to dispense with them. 

Preparation of a written expert report is 

a common requirement in federal courts 

and, given the Commission’s goal of 

expedited proceedings, should be 

required here during the discovery 

period to allow the parties more 

effective and targeted discovery. 

The Rule would provide that 

complaint counsel submit their initial 

expert reports first, followed by 

respondents’ expert reports. 

Respondents’ reports, of course, can 

rebut material in complaint counsel’s 

initial expert reports. The revised Rule 

would also explicitly authorize 

complaint counsel to call rebuttal 

experts and, if complaint counsel 

exercises this option, would require the 

experts to prepare rebuttal expert 

reports. Thus, the Rule would allow 

complaint counsel’s experts an 

opportunity to respond to respondents’ 

expert reports. 

The Rule would also exclude from 

expert discovery anyone who has been 

retained or specially employed by 

another party in anticipation of 

litigation or preparation for hearing 

unless he or she is expected to be called 

as a witness at the hearing, so as to 

prevent the discovery of the 

unpublished work product of nontestifying experts, particularly where 

such materials are proprietary and 

highly confidential. The discovery of 

such marginally relevant materials can 

be a major distraction from the central 

case and can have an adverse effect on 

the willingness of non-testifying experts 

to consult in the future. 

Section 3.33: Depositions. 

Paragraph (b) would be added to 

allow the ALJ, upon a party’s motion, to 

prevent the taking of a deposition if the 

deposition would not meet the scope of 

discovery standard under Rule 3.31(c) 

or if the value of the deposition would 

be outweighed by considerations of 

unfair prejudice, confusion of the 

issues, evidence that would be 

misleading, or by considerations of 

undue delay, waste of time, or needless 

presentation of cumulative evidence (as 

set forth under Rule 3.43(b)). Paragraph 

(b) would also clarify that the fact that 

a witness testifies in an investigative 

hearing does not preclude the 

deposition of that witness. 

Paragraph (c) would be revised to stop 

the practice of filing notices of 

deposition with the Office of the 

Secretary, the ALJ or otherwise 

providing such notices to the 

Commission, except as provided in 

proposed Rule 3.31(i). Such notices 

serve no purpose for the ALJ or the 

agency, and receipt of these notices 

causes unnecessary processing costs for 

the Commission. 

Revised Rule 3.43, as discussed 

below, would provide for the admission 

of hearsay evidence in the evidentiary 

hearing if the evidence is ‘‘relevant, 

material, and bears satisfactory indicia 

of reliability so that its use is fair.’’ If 

meeting this standard, depositions, 

investigational hearings, and other prior 

testimony may be admitted. Consistent 

with this proposed revision, current 

Rule 3.33(g)(1) would be eliminated 

because it contains hearsay-based 

limitations for the use of depositions. 

Paragraphs (g)(2) and (3) would be 

renumbered accordingly. 


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Section 3.34: Subpoenas. 

Paragraphs (a) and (b), as amended, 

would authorize counsel for a party to 

sign and issue a subpoena on a form 

provided by the Secretary. These 

revisions are intended to expedite the 

commencement of hearings by speeding 

the issuance of discovery and hearing 

subpoenas. The definition of 

‘‘documents’’ would also be revised to 

be parallel to Fed. R. Civ. P. 45(c)(1). 

Revisions to paragraph (c) would 

reflect revised Rule 3.36, discussed 

below, which would require a special 

showing of need for subpoenas directed 

to the offices of the Commissioners, the 

General Counsel, Bureaus and Offices 

not involved in the matter, the ALJs, or 

the Secretary. 

Section 3.35: Interrogatories to parties. 

New paragraph (a)(3) would provide 

that interrogatories should not be filed 

with the Office of the Secretary, the ALJ 

or otherwise provided to the 

Commission except as provided in 

proposed Rule 3.31(i). 

Paragraph (b)(2), as revised, would 

eliminate the requirement that a party 

seek an order from the ALJ when not 

answering a contention interrogatory 

before the end of discovery. If a party 

poses a contention interrogatory that is 

capable of being answered at an earlier 

time, there is no reason it could not 

move to compel a more expeditious 

response. 

Section 3.36: Applications for 

subpoenas for records of or appearances 

by certain officials or employees of the 

Commission or officials or employees of 

governmental agencies other than the 

Commission, and subpoenas to be 

served in a foreign country. 

Paragraph (a) currently requires a 

special showing of need for subpoenas 

to other agencies and foreign subpoenas. 

The revised Rule would require a 

special showing of need for subpoenas 

directed to the offices of the 

Commissioners, the General Counsel, 

Bureaus and Offices not involved in the 

matter, the ALJs, and the Secretary. 

None of these offices is likely to possess 

relevant, discoverable information that 

is not available from other sources. 

Given the lack of useful additional 

information likely to be available from 

these offices, the burden (and delay) of 

searches for responsive records and the 

creation of privilege logs should not be 

imposed without strong justification. 

These revisions would reduce the cost 

and time devoted to searches for 

information that is likely to be 

privileged or that is unlikely to lead to 

the discovery of admissible evidence. 

The revisions to paragraph (b)(3) 

would require a showing of ‘‘compelling 

need’’ as the corresponding standard for 

witness testimony. Because the 

Commission is proposing to revise Rule 

3.34 to eliminate specific showings for 

hearing subpoenas, the reference to that 

Rule would be eliminated from the first 

sentence of paragraph (b). The reference 

to Rule 3.37 would be moved to a new 

paragraph (b)(5). 

Section 3.37: Production of documents, 

electronically stored information, and 

any tangible thing; access for inspection 

and other purposes. 

The existing Rule substantially 

follows Fed. R. Civ. P. 34. The revised 

Rule would include the current federal 

rule’s provisions on electronic 

discovery. The revised Rule would also 

provide that requests under this section 

not be filed with the Office of the 

Secretary, the ALJ or otherwise 

provided to the Commission, except as 

provided in proposed Rule 3.31(i). 

Section 3.38: Motion for order 

compelling disclosure or discovery; 

sanctions. 

The revised Rule would impose short 

deadlines for responses to and rulings 

on motions to compel. It would impose 

a 2,500 word limit, which translates into 

approximately 10 double-spaced pages, 

for motions and answers. This limit 

should be sufficient to enable parties to 

address several discovery issues in one 

filing. 

The revised Rule would consolidate 

the sanctions for failure to comply with 

discovery and disclosure requirements 

and add as a sanction the inability to 

call a witness who was not disclosed 

under Rule 3.31(b) or an expert not 

disclosed under proposed Rule 3.31A. 

Section 3.38A: Withholding requested 

material. 

The revised Rule would modify the 

existing requirement that a privilege/ 

work-product log must always contain 

specific information for each item being 

withheld. The Commission intends to 

substitute the more flexible requirement 

in Fed. R. Civ. P. 26(b)(5)(A) that the 

schedule of withheld items ‘‘describe 

the nature of the documents, 

communications, or tangible things not 

produced or disclosed — and do so in 

a manner that, without revealing 

information itself privileged or 

protected, will enable other parties to 

assess the claim.’’ This proposed 

requirement would permit parties to 

describe withheld items by categories, 

but only if the description ‘‘will enable 

other parties to assess the claim.’’ 

Unless such descriptions are sufficient, 

item-by-item descriptions would be 

required. 

The revised Rule would also clarify 

that the log need not describe any 

material outside the scope of the duty to 

search set forth in revised Rule 

3.31(c)(2) except to the extent that the 

ALJ has authorized additional discovery 

as provided in that Rule. These 

exclusions, if adopted, will reduce the 

burden and time devoted to preparing a 

detailed log without eliminating 

information about materials most likely 

to be relevant to the litigation. 

Section 3.39: Orders requiring witnesses 

to testify or provide other information 

and granting immunity. 

The Commission is proposing 

technical revisions to the existing Rule. 

All in all, the proposed revisions to 

the discovery Rules are designed to 

encourage the parties to cooperate in the 

discovery process, ‘‘automate’’ the 

discovery process to the greatest extent 

possible, and provide effective sanctions 

against those who violate a discovery 

obligation. The Commission’s 

expectation is that the revised Rules 

would work to improve the quality of 

the discovery process and would 

ultimately reduce the costs and delays 

that are incurred when parties engage in 

unnecessary gamesmanship. For 

example, the Commission believes that 

the sanction of prohibiting a party from 

calling a fact or expert witness who 

should have been disclosed earlier 

would reduce the need for last-minute 

discovery that could delay the hearing 

and thereby eliminate the extra costs 

associated with such discovery and 

improve the quality of the discovery 

process. 

Subpart E—Hearings 

Section 3.41: General hearing rules. 

In order to expedite proceedings, 

revised Rule 3.41(b) would require that 

the evidentiary hearing commence on 

the date set in the notice accompanying 

the complaint. It also would limit the 

length of the hearing to 210 hours, the 

equivalent of 30 seven-hour trial days, 

unless extended by the Commission for 

good cause, and establish reasonable 

time allocations for both sides. 

Section 3.42: Presiding officials. 

Revised Rule 3.42(a) would make 

explicit provision for the Commission 

retaining jurisdiction over a matter 

during some or all of the prehearing 

proceedings and designating one or 

more Commissioners to preside. The 

Commission has followed this course in 

several recent cases. The APA, 5 U.S.C. 

556(b), allows the agency itself or one or 


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27 FTC v. Cement Inst., 333 U.S. 683, 705–06 

(1948). 

28 Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir. 

1980); see also Richardson v. Perales, 402 U.S. 389, 

407–08 (1971); J.A.M. Builders, Inc. v. Herman, 233 

F.3d 1350, 1354 (11th Cir. 2000) (hearsay 

admissible in administrative proceedings if 

‘‘reliable and credible’’); 5 U.S.C. 556(d) (APA 

provides that ‘‘[a]ny oral or documentary evidence 

may be received, but the agency as a matter of 

policy shall provide for the exclusion of irrelevant, 

immaterial or unduly repetitious evidence. A 

sanction may not be imposed or rule or order issued 

except on consideration of the whole record or 

those parts thereof cited by a party and supported 

by and in accordance with the reliable, probative, 

and substantial evidence.’’). 

29 See, e.g., Citizens Awareness Network, Inc. v. 

United States, 391 F.3d 338, 351 (1st Cir. 2004); 

Central Freight Lines, Inc. v. United States, 669 F.2d 

1063 (5th Cir. 1982). 

30 See, e.g., Fed. R. Civ. P. 30(b)(3)(A). 

31 See FTC v. Tarriff, No. 08–MC–217, 2008 WL 

2230062, at *5 (D.D.C. June 2, 2008). 

more of its members to preside, and the 

Commission can see no reason why the 

Commission or an individual 

Commissioner may not preside over the 

beginning phases of the proceeding even 

where the Commission or the individual 

Commissioner does not preside over the 

hearing or issue the initial decision. In 

appropriate cases, early Commission 

involvement has the potential for 

improving the quality of the final 

product, expediting the proceeding, and 

ultimately reducing the costs of the 

litigation. 

Section 3.43: Evidence. 

The Commission proposes to amend 

this Rule to define hearsay evidence and 

to provide expressly in paragraph (b) for 

the use and admission of hearsay 

evidence in Commission proceedings if 

the evidence ‘‘is relevant, material, and 

bears satisfactory indicia or reliability so 

that its use is fair.’’ The existing Rule 

states that ‘‘[r]elevant, material, and 

reliable evidence shall be admitted. 

Irrelevant, immaterial, and unreliable 

evidence shall be excluded.’’ This 

modification does not represent a 

change in the current rule; rather it 

emphasizes that the stricter hearsay 

rules in the Federal Rules of Evidence 

do not determine admissibility of 

evidence in administrative litigation. 

The ALJ, in the first place, and 

ultimately the Commission must 

independently assess the reliability of 

the evidence itself. 

Administrative agencies like the FTC 

‘‘have never been restricted by the rigid 

rules of evidence,’’27and should 

evaluate the admissibility of hearsay 

evidence based on whether ‘‘it bear[s] 

satisfactory indicia of reliability . . . [is] 

probative and its use fundamentally 

fair.’’28 The ALJ, and on appeal the 

Commission, are capable of assessing 

the reliability and weight to be given 

hearsay evidence by, for example, 

determining the independence or 

possible bias of an out-of-court 

declarant, the context in which the 

hearsay material was created, whether 

the statement was sworn to, and 

whether it is corroborated or 

contradicted by other forms of direct 

evidence. 

In that regard, proposed paragraph (b) 

would provide that depositions, 

investigational hearings, and prior 

testimony in Commission and other 

proceedings shall be admissible even if 

they are or contain hearsay, provided 

that the testimony is otherwise 

sufficiently reliable and probative. The 

revised Rule would also make clear that 

relevant statements or testimony by a 

party-opponent are admitted since such 

statements are not hearsay. 

The Commission believes that the 

revision regarding hearsay evidence will 

improve the quality of Commission 

decisions by enabling the ALJ and the 

Commission to decide cases with a more 

complete record, which would not 

exclude relevant, material, and reliable 

evidence, including prior testimony, 

merely because it is hearsay. 

Proposed new paragraph (c), which is 

analogous to Fed. R. Evid. 902(11), is 

intended to facilitate the admissibility 

of third party documents by selfauthentication through a written 

declaration of the third party document 

custodian. 

Proposed new paragraph (d)(1) would 

adopt the standard for the presentation 

of evidence at an oral hearing under 5 

U.S.C. 556(d), including the right to 

present both sworn oral and 

documentary evidence, to offer rebuttal 

evidence, and to conduct reasonable 

cross-examination. Of particular note, 

this paragraph would permit sufficient 

‘‘cross-examination as, in the discretion 

of the Commission or the ALJ, may be 

required for a full and true disclosure of 

the facts,’’ a standard that does not 

impose an absolute or unlimited right of 

cross-examination.29

Finally, re-designated paragraph (f) 

would define what constitutes ‘‘official 

notice.’’ The current Rule does not 

define official notice or what constitutes 

such notice. Further, the revised Rule 

would provide that a party may 

controvert an officially noticed fact 

either by opposing the other party’s 

request to do so or after it has been 

noticed by the ALJ or the Commission. 

Other paragraphs in the current Rule 

would be re-designated. 

Section 3.44: Record. 

Paragraph (a) would be amended to 

require that witness testimony be 

preserved as a digital video recording 

that would be made part of the official 

record. Video recordings are permitted 

and frequently taken in depositions,30

but federal courts do not typically 

record proceedings. Section 5(b) of the 

FTC Act does not preclude video 

recording testimony, merely requiring 

that the ‘‘testimony in any such 

proceeding shall be reduced to writing 

and filed in the office of the 

Commission.’’ The purpose of the 

proposed Rule revision is to provide a 

record for the Commissioners who are 

not present at the hearing, but are 

ultimately responsible for deciding the 

outcome of the case, to be able to make 

an independent assessment of the 

demeanor of the witnesses when that is 

appropriate. Courts have recognized the 

‘‘added value of demeanor evidence’’ 

from video recording.31 The 

Commission believes that the video 

recording requirement would improve 

the quality of Commission decisions 

whenever witness demeanor is a 

significant issue. 

Paragraph (c), as revised, would 

delete the word ‘‘immediately’’ at the 

beginning of the first sentence to allow 

the Commission or ALJ to provide the 

parties with three business days to 

review the record to determine if it is 

complete or needs to be supplemented. 

Section 3.45: In camera orders. 

Paragraph (b), as revised, would add 

a paragraph making clear that parties 

have no obligation to file or provide in 

camera versions of filings with sensitive 

materials with anyone other than 

opposing counsel and the ALJ during 

the proceedings, as well as with the 

Commission or federal courts during 

any appeals. 

Section 3.46: Proposed finding, 

conclusions, and order. 

Revised paragraph (a), if adopted, 

would expressly provide for the 

simultaneous filing of proposed findings 

of fact, conclusions of law, and 

supporting briefs within 21 days of the 

close of the hearing record, and the 

filing of optional proposed reply 

findings within 10 days of the filing of 

the initial proposed findings. The 

current Rule does not impose any 

deadlines or specify the order of these 

filings. This change, if adopted, is 

expected to expedite the post-hearing 

phase. 

Subpart F—Decision 

Section 3.51: Initial decision. 

Paragraph (a) would be amended to 

establish the deadline for issuing the 


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initial decision by the filing of proposed 

findings and conclusions (and 

supporting exhibits) rather than by the 

closing of the hearing record. The 

current Rule requires that the initial 

decision be filed within 90 days after 

the close of the record. The revised Rule 

would require that the initial decision 

be filed within 70 days of the last filed 

proposed findings and conclusions (or 

85 days of the closing of the hearing 

record if the parties waive filing 

proposed findings and conclusions). 

The revised Rule would maintain the 

over-all requirement that the initial 

decision be issued within one year after 

the issuance of the complaint. The 

revised Rule, however, would no longer 

authorize the ALJ to grant consecutive 

60-day extensions upon a finding of 

‘‘extraordinary circumstances.’’ Instead, 

only the Commission could grant 

extensions if it finds there are 

‘‘extraordinary circumstances and if 

appropriate in the public interest.’’ The 

Commission believes that eliminating 

the authority of ALJs to grant extensions 

of the one-year deadline would permit 

the Commission to prevent protracted 

delays, while still providing ample time 

for the ALJ to review the evidence and 

issue the initial decision. 

New paragraph (c)(2) would require 

that the initial decision be filed in a 

word processing format that is 

accessible to the Commission on review. 

Section 3.52: Appeal from initial 

decision. 

Paragraphs (b) and (c) would be 

amended to reduce the word limit for 

the principal appellate briefs from 

18,750 words to 14,000 words 

(approximately 55 double-spaced pages) 

to minimize unnecessarily lengthy 

briefs. The Commission anticipates that 

the shortened limits would lead to more 

focused arguments. The proposed length 

is the same as that permitted in Fed. R. 

App. P. 32(a)(7). Paragraph (c) would 

also be revised to reduce the word limit 

for cross-appeal briefs to 16,500 words, 

the same as in Fed. R. App. P. 28.1(e)(2). 

While lengthier appellate briefs could 

be justified by the Commission’s 

obligation to review the record de novo, 

this is offset by the fact that the 

Commission has ready access to the 

briefs and proposed findings submitted 

by the parties to the ALJ. Further, 

parties will not be prejudiced because 

they may request permission to extend 

the word count limits, which may be 

appropriate where the case involves a 

particularly large record or complex 

legal issues. However, as noted in 

paragraph (k), the Commission will not 

lightly permit such extensions. 

Paragraph (d) would be amended to 

reduce the length of reply briefs to half 

of the principals’ briefs, or 7,000 words, 

consistent with Fed. R. App. P. 32(a)(7). 

This paragraph would also make 

explicit that parties cannot raise new 

arguments or matters in reply briefs that 

could have been raised earlier, based on 

concerns that reply briefs have often 

gone beyond ‘‘a rebuttal of matters’’ in 

the appellee’s brief. 

Paragraph (h) would be revised by 

striking the last two sentences as 

unnecessary. 

Paragraph (j) would be amended to 

impose a word count limit on amicus 

briefs to ‘‘no more than one-half the 

maximum length authorized by these 

rules for a party’s principal brief,’’ 

consistent with the approach taken by 

Fed. R. App. P. 29(d). 

Finally, revised paragraph (k) would 

specify the contents of the brief that will 

count toward the word count limit, 

similar to that imposed by Fed. R. App. 

P. 32(a)(7)(B)(iii). 

Rule 4.3: Time. 

Revised Rule 4.3(b), if adopted, would 

specify that the ALJ may extend a time 

period set by a Commission order only 

if the order expressly authorizes the ALJ 

to do so. It would also add time limits 

regarding motions directed to the 

Commission to the list of extensions 

that only the Commission may grant. 

The revised Rule would also clarify that 

the ALJ may not enlarge any deadline 

that a rule specifically authorizes only 

the Commission to extend. 

III. Invitation to Comment 

The Commission invites interested 

members of the public to submit written 

comments addressing the issues raised 

above. Such comments must be filed by 

November 6, 2008, and must be filed in 

accordance with the instructions in the 

ADDRESSES section of this document. 

IV. Proposed Rule Revisions 

List of Subjects in 16 CFR Part 3 

Administrative practice and 

procedure. 

List of Subjects in 16 CFR Part 4 

Administrative practice and 

procedure. 

■ For the reasons set forth in the 

preamble, the Federal Trade 

Commission proposes to amend Title 

16, Chapter 1, Subchapter A of the Code 

of Federal Regulations, parts 3 and 4, as 

follows: 

PART 3—RULES OF PRACTICE FOR 

ADJUDICATIVE PROCEEDINGS 

■ 1. The authority citation for part 3 

continues to read as follows: 

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

noted. 

■ 2. Revise § 3.1 to read as follows: 

§ 3.1 Scope of the rules in this part. 

The rules in this part govern 

procedure in formal adjudicative 

proceedings. To the extent practicable 

and consistent with requirements of 

law, the Commission’s policy is to 

conduct such proceedings 

expeditiously. In the conduct of such 

proceedings the Administrative Law 

Judge and counsel for all parties shall 

make every effort at each stage of a 

proceeding to avoid delay. Except as 

otherwise provided by law, the 

Commission, at any time, or the 

Administrative Law Judge at any time 

prior to the filing of his or her initial 

decision, may shorten any time limit 

prescribed by these Rules of Practice, 

provided that the shortened time limit 

would not unfairly prejudice the rights 

of any party. 

■ 3. Revise § 3.2 to read as follows: 

§ 3.2 Nature of adjudicative proceedings. 

Adjudicative proceedings are those 

formal proceedings conducted under 

one or more of the statutes administered 

by the Commission which are required 

by statute to be determined on the 

record after opportunity for an agency 

hearing. The term includes hearings 

upon objections to orders relating to the 

promulgation, amendment, or repeal of 

rules under sections 4, 5 and 6 of the 

Fair Packaging and Labeling Act, but 

does not include rulemaking 

proceedings up to the time when the 

Commission determines under § 1.26(g) 

of this chapter that objections sufficient 

to warrant the holding of a public 

hearing have been filed. The term also 

includes proceedings for the assessment 

of civil penalties pursuant to § 1.94 of 

this chapter. The term does not include 

other proceedings such as negotiations 

for and Commission consideration of 

the entry of consent orders; 

investigational hearings as 

distinguished from proceedings after the 

issuance of a complaint; requests for 

extensions of time to comply with final 

orders or other proceedings involving 

compliance with final orders; 

proceedings for the promulgation of 

industry guides or trade regulation 

rules; or the promulgation of substantive 

rules and regulations. 

■ 4. Revise § 3.11 to read as follows: 


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§ 3.11 Commencement of proceedings. 

(a) Complaint. Except as provided in 

§ 3.13, an adjudicative proceeding is 

commenced when an affirmative vote is 

taken by the Commission to issue a 

complaint. 

(b) Form of complaint. The 

Commission’s complaint shall contain 

the following: 

(1) Recital of the legal authority and 

jurisdiction for institution of the 

proceeding, with specific designation of 

the statutory provisions alleged to have 

been violated; 

(2) A clear and concise factual 

statement sufficient to inform each 

respondent with reasonable definiteness 

of the type of acts or practices alleged 

to be in violation of the law; 

(3) Where practical, a form of order 

which the Commission has reason to 

believe should issue if the facts are 

found to be as alleged in the complaint; 

and 

(4) Notice of the specific date, time 

and place for the evidentiary hearing. 

Unless a different date is determined 

by the Commission, the date of the 

evidentiary hearing shall be 5 months 

from the date of a complaint issued 

pursuant to sections 7 and 11(b) of the 

Clayton Act, 15 U.S.C. 18 and 21(b), and 

8 months from the date of issuance of 

a complaint in all other proceedings. 

■ 5. Revise § 3.12 to read as follows: 

§ 3.12 Answer. 

(a) Time for filing. A respondent shall 

file an answer within 14 days after being 

served with the complaint. 

(b) Content of answer. An answer 

shall conform to the following: 

(1) If allegations of complaint are 

contested. An answer in which the 

allegations of a complaint are contested 

shall contain: 

(i) A concise statement of the facts 

constituting each ground of defense; 

(ii) Specific admission, denial, or 

explanation of each fact alleged in the 

complaint or, if the respondent is 

without knowledge thereof, a statement 

to that effect. Allegations of a complaint 

not thus answered shall be deemed to 

have been admitted. 

(2) If allegations of complaint are 

admitted. If the respondent elects not to 

contest the allegations of fact set forth 

in the complaint, the answer shall 

consist of a statement that he or she 

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 complaint, and together 

with the complaint will provide a 

record basis on which the Commission 

shall issue a final decision containing 

appropriate findings and conclusions 

and a final 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 § 3.46. 

(c) Default. Failure of the 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 

complaint and to authorize the 

Commission, without further notice to 

the respondent, to find the facts to be as 

alleged in the complaint and to enter a 

final decision containing appropriate 

findings and conclusions and a final 

order disposing of the proceeding. 

■ 6. Revise § 3.21 to read as follows: 

§ 3.21 Prehearing procedures. 

(a) Meeting of the parties before 

scheduling conference. As early as 

practicable before the prehearing 

scheduling conference described in 

paragraph (b) of this section, but in any 

event no later than 5 days after the 

answer is filed by the last answering 

respondent, counsel for the parties shall 

meet to discuss the nature and basis of 

their claims and defenses and the 

possibilities for a prompt settlement or 

resolution of the case. The parties shall 

also agree, if possible, on (1) a proposed 

discovery plan specifically addressing a 

schedule for depositions of fact 

witnesses, the production of documents 

and electronically stored information, 

and the timing of expert discovery 

pursuant to § 3.31A. The parties’ 

agreement regarding electronically 

stored information should include the 

scope of and a specified time period for 

the exchange of such information that is 

subject to § § 3.31(b)(2), 3.31(c), and 

3.37(a), and the format for the disclosure 

of such information, consistent with 

§ 3.31(c)(3) and § 3.37(c); (2) a 

preliminary estimate of the time 

required for the evidentiary hearing; and 

(3) any other matters to be determined 

at the scheduling conference. 

(b) Scheduling conference. Not later 

than 10 days after the answer is filed by 

the last answering respondent, the 

Administrative Law Judge shall hold a 

scheduling conference. At the 

scheduling conference, counsel for the 

parties shall be prepared to address: (1) 

their factual and legal theories; (2) the 

current status of any pending motions; 

(3) a schedule of proceedings that is 

consistent with the date of the 

evidentiary hearing set by the 

Commission; (4) steps taken to preserve 

evidence relevant to the issues raised by 

the claims and defenses; (5) the scope of 

anticipated discovery, any limitations 

on discovery, and a proposed discovery 

plan, including the disclosure of 

electronically stored information; (6) 

issues that can be narrowed by 

agreement or by motion, suggestions to 

expedite the presentation of evidence at 

trial, and any request to bifurcate issues, 

claims or defenses; and (7) other 

possible agreements or steps that may 

aid in the just and expeditious 

disposition of the proceeding and to 

avoid unnecessary cost. 

(c) Prehearing scheduling order. (1) 

Not later than 2 days after the 

scheduling conference, the 

Administrative Law Judge shall enter an 

order that sets forth the results of the 

conference and establishes a schedule of 

proceedings that will permit the 

evidentiary hearing to commence on the 

date set by the Commission, including 

a plan of discovery that addresses the 

deposition of fact witnesses, timing of 

expert discovery, and the production of 

documents and electronically stored 

information, dates for the submission 

and hearing of motions, the specific 

method by which exhibits shall be 

numbered or otherwise identified and 

marked for the record, and the time and 

place of a final prehearing conference. 

The Commission may, upon a showing 

of good cause, order a later date for the 

evidentiary hearing than the one 

specified in the complaint. 

(2) The Administrative Law Judge 

may, upon a showing of good cause, 

grant a motion to extend any deadline 

or time specified in this scheduling 

order other than the date of the 

evidentiary hearing. Such motion shall 

set forth the total period of extensions, 

if any, previously obtained by the 

moving party. In determining whether 

to grant the motion, the Administrative 

Law Judge shall consider any extensions 

already granted, the length of the 

proceedings to date, the complexity of 

the issues, and the need to conclude the 

evidentiary hearing and render an initial 

decision in a timely manner. The 

Administrative Law Judge shall not rule 

on ex parte motions to extend the 

deadlines specified in the scheduling 

order, or modify such deadlines solely 

upon stipulation or agreement of 

counsel. 

(d) Meeting prior to final prehearing 

conference. Counsel for the parties shall 

meet before the final prehearing 

conference described in paragraph (e) of 

this section to discuss the matters set 

forth therein in preparation for the 

conference. 

(e) Final prehearing conference. As 

close to the commencement of the 

evidentiary hearing as practicable, the 

Administrative Law Judge shall hold a 

final prehearing conference, which 

counsel shall attend in person, to 

submit any proposed stipulations as to 

law, fact, or admissibility of evidence, 


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exchange exhibit and witness lists, and 

designate testimony to be presented by 

deposition. At this conference, the 

Administrative Law Judge shall also 

resolve any outstanding evidentiary 

matters or pending motions (except 

motions for summary decision) and 

establish a final schedule for the 

evidentiary hearing. 

(f) Additional prehearing conferences 

and orders. The Administrative Law 

Judge shall hold additional prehearing 

and status conferences or enter 

additional orders as may be needed to 

ensure the just and expeditious 

disposition of the proceeding and to 

avoid unnecessary cost. Such 

conferences shall be held in person to 

the extent practicable. 

(g) Public access and reporting. 

Prehearing conferences shall be public 

unless the Administrative Law Judge 

determines in his or her discretion that 

the conference (or any part thereof) shall 

be closed to the public. The 

Administrative Law Judge shall have 

discretion to determine whether a 

prehearing conference shall be 

stenographically reported. 

■ 7. Revise § 3.22 to read as follows: 

§ 3.22 Motions. 

(a) Presentation and disposition. 

Motions filed under § 3.26 or § 4.17 

shall be directly referred to and ruled on 

by the Commission. Motions to dismiss 

filed before the evidentiary hearing, 

motions to strike, and motions for 

summary decision shall be directly 

referred to the Commission and shall be 

ruled on by the Commission, unless the 

Commission in its discretion refers the 

motion to the Administrative Law 

Judge. If the Commission refers the 

motion to the Administrative Law 

Judge, it may set a deadline for the 

ruling by the Administrative Law Judge, 

and a party may seek review of the 

ruling of the Administrative Law Judge 

in accordance with § 3.23. During the 

time a proceeding is before an 

Administrative Law Judge, all other 

motions shall be addressed to and ruled 

upon, if within his or her authority, by 

the Administrative Law Judge. The 

Administrative Law Judge shall certify 

to the Commission a motion to 

disqualify filed under § 3.42(g) if the 

Administrative Law Judge does not 

disqualify himself or herself within 10 

days. The Administrative Law Judge 

shall certify to the Commission 

forthwith any other motion upon which 

he or she has no authority to rule. 

Rulings containing information granted 

in camera status pursuant to § 3.45 shall 

be filed in accordance with § 3.45(f). 

When a motion to dismiss is made at the 

close of the evidence offered in support 

of the complaint based upon an alleged 

failure to establish a prima facie case, 

the Administrative Law Judge shall 

defer ruling thereon until immediately 

after all evidence has been received and 

the hearing record is closed. All written 

motions shall be filed with the Secretary 

of the Commission, and all motions 

addressed to the Commission shall be in 

writing. The moving party shall also 

provide a copy of its motion to the 

Administrative Law Judge at the time 

the motion is filed with the Secretary. 

(b) Pendency of proceedings. A 

motion under consideration by the 

Commission shall not stay proceedings 

before the Administrative Law Judge 

unless the Commission so orders. 

(c) Content. All written motions shall 

state the particular order, ruling, or 

action desired and the grounds therefor. 

Memoranda in support of, or in 

opposition to, any dispositive motion 

shall not exceed 10,000 words. 

Memoranda in support of, or in 

opposition to, any other motion shall 

not exceed 2,500 words. Any reply in 

support of a dispositive motion shall not 

exceed 5,000 words and any reply in 

support of any other motion authorized 

by the Administrative Law Judge or the 

Commission shall not exceed 1,250 

words. These word count limitations 

include headings, footnotes and 

quotations, but do not include the cover, 

table of contents, table of citations or 

authorities, glossaries, statements with 

respect to oral argument, any 

addendums containing statutes, rules or 

regulations, any certificates of counsel, 

proposed form of order, and any 

attachment required by § 3.45(e). 

Documents that fail to comply with 

these provisions shall not be filed with 

the Secretary. Motions must also 

include the name, address, telephone 

number, fax number, and e-mail address 

(if any) of counsel and attach a draft 

order containing the proposed relief. If 

a party includes in a motion information 

that has been granted in camera status 

pursuant to § 3.45(b) or is subject to 

confidentiality protections pursuant to a 

protective order, the party shall file 2 

versions of the motion in accordance 

with the procedures set forth in 

§ 3.45(e). The party shall mark its 

confidential filings with brackets or 

similar conspicuous markings to 

indicate the material for which it is 

claiming confidential treatment. The 

time period specified by § 3.22(d) 

within which an opposing party may 

file an answer will begin to run upon 

service on that opposing party of the 

confidential version of the motion. 

(d) Responses. Within 10 days after 

service of any written motion, or within 

such longer or shorter time as may be 

designated by the Administrative Law 

Judge or the Commission, the opposing 

party shall answer or shall be deemed 

to have consented to the granting of the 

relief asked for in the motion. If an 

opposing party includes in an answer 

information that has been grantedin 

camera status pursuant to § 3.45(b) or is 

subject to confidentiality protections 

pursuant to a protective order, the 

opposing party shall file 2 versions of 

the answer in accordance with the 

procedures set forth in § 3.45(e). The 

moving party shall have no right to 

reply, except for dispositive motions or 

as otherwise permitted by the 

Administrative Law Judge or the 

Commission. Reply and surreply briefs 

to motions other than dispositive 

motions shall be permitted only in 

circumstances where the parties wish to 

draw the Administrative Law Judge’s or 

the Commission’s attention to recent 

important developments or controlling 

authority that could not have been 

raised earlier in the party’s principal 

brief. The reply may be conditionally 

filed with the motion seeking leave to 

reply. Any reply to a dispositive motion, 

or any permitted reply to any other 

motion, shall be filed within 5 days after 

service of the last answer to that motion. 

(e) Rulings on motions. Unless 

otherwise provided by a relevant rule, 

the Administrative Law Judge shall rule 

on motions within 14 days after the 

filing of all motion papers authorized by 

this section. The Commission, for good 

cause, may extend the time allowed for 

a ruling. 

(f) Motions for extensions. The 

Administrative Law Judge or the 

Commission may waive the 

requirements of this section as to 

motions for extensions of time; 

however, the Administrative Law Judge 

shall have no authority to rule on ex 

parte motions for extensions of time. 

(g) Statement. Each motion to quash 

filed pursuant to § 3.34(c), each motion 

to compel or determine sufficiency 

pursuant to § 3.38(a), each motion for 

sanctions pursuant to § 3.38(b), and 

each motion for enforcement pursuant 

to § 3.38(c) shall be accompanied by a 

signed statement representing that 

counsel for the moving party has 

conferred with opposing counsel in an 

effort in good faith 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. The 

statement shall recite the date, time, and 

place of each such conference between 

counsel, and the names of all parties 


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participating in each such conference. 

Unless otherwise ordered by the 

Administrative Law Judge, the 

statement required by this rule must be 

filed only with the first motion 

concerning compliance with the 

discovery demand at issue. 

■ 8. Revise § 3.23 to read as follows: 

§ 3.23 Interlocutory appeals. 

(a) Appeals without a determination 

by the Administrative Law Judge. The 

Commission may, in its discretion, 

entertain interlocutory appeals where a 

ruling of the Administrative Law Judge: 

(1) Requires the disclosure of records 

of the Commission or another 

governmental agency or the appearance 

of an official or employee of the 

Commission or another governmental 

agency pursuant to § 3.36, if such appeal 

is based solely on a claim of privilege: 

Provided, that the Administrative Law 

Judge shall stay until further order of 

the Commission the effectiveness of any 

ruling, whether or not appeal is sought, 

that requires the disclosure of nonpublic 

Commission minutes, Commissioner 

circulations, or similar documents 

prepared by the Commission, individual 

Commissioner, or the Office of the 

General Counsel; 

(2) Suspends an attorney from 

participation in a particular proceeding 

pursuant to § 3.42(d); or 

(3) Grants or denies an application for 

intervention pursuant to the provisions 

of § 3.14. Appeal from such rulings may 

be sought by filing with the Commission 

an application for review within 3 days 

after notice of the Administrative Law 

Judge’s ruling. An answer may be filed 

within 3 days after the application for 

review is filed. The Commission upon 

its own motion may enter an order 

staying compliance with a discovery 

demand authorized by the 

Administrative Law Judge pursuant to 

§ 3.36 or placing the matter on the 

Commission’s docket for review. Any 

order placing the matter on the 

Commission’s docket for review will set 

forth the scope of the review and the 

issues which will be considered and 

will make provision for the filing of 

memoranda of law if deemed 

appropriate by the Commission. 

(b) Other interlocutory appeals. A 

party may request the Administrative 

Law Judge to determine that a ruling 

involves a controlling question of law or 

policy as to which there is substantial 

ground for difference of opinion and 

that an immediate appeal from the 

ruling may materially advance the 

ultimate termination of the litigation or 

subsequent review will be an 

inadequate remedy. An answer may be 

filed within 3 days after the application 

for review is filed. The Administrative 

Law Judge shall issue a ruling on the 

request for determination within 3 days. 

The party may file an application for 

review with the Commission within 1 

day after notice that the Administrative 

Law Judge has issued the requested 

determination or 1 day after the 

deadline has passed for the 

Administrative Law Judge to issue a 

ruling on the request for determination 

and the Administrative Law Judge has 

not issued his or her ruling. 

(c) The application for review shall 

attach the ruling from which appeal is 

being taken and any other portions of 

the record on which the moving party 

relies. Neither the application for review 

nor the answer shall exceed 2,500 

words. This word count limitation 

includes headings, footnotes and 

quotations, but does not include the 

cover, table of contents, table of 

citations or authorities, glossaries, 

statements with respect to oral 

argument, any addendums containing 

statutes, rules or regulations, any 

certificates of counsel, proposed form of 

order, and any attachment required by 

§ 3.45(e). The Commission may order 

additional briefing on the application. 

(d) Unless the Commission, within 3 

days after the filing of an application for 

review, decides to entertain the appeal, 

the application shall be deemed to be 

denied. 

(e) Proceedings not stayed. 

Application for review and appeal 

hereunder shall not stay proceedings 

before the Administrative Law Judge 

unless the Judge or the Commission 

shall so order. 

■ 9. Revise § 3.24 to read as follows: 

§ 3.24 Summary decisions. 

(a) Procedure. (1) Any party may 

move, with or without supporting 

affidavits, for a summary decision in the 

party’s favor upon all or any part of the 

issues being adjudicated. The motion 

shall be accompanied by a separate and 

concise statement of the material facts 

as to which the moving party contends 

there is no genuine issue for trial. 

Counsel in support of the complaint 

may so move at any time after 20 days 

following issuance of the complaint and 

any respondent may so move at any 

time after issuance of the complaint. 

Any such motion by any party, 

however, shall be filed in accordance 

with the scheduling order issued 

pursuant to § 3.21, but in any case at 

least 30 days before the date fixed for 

the hearing. 

(2) Any other party may, within 14 

days after service of the motion, file 

opposing affidavits. The opposing party 

shall include a separate and concise 

statement of those material facts as to 

which the opposing party contends 

there exists a genuine issue for trial, as 

provided in § 3.24(a)(3). The parties may 

file memoranda of law in support of, or 

in opposition to, the motion consistent 

with § 3.22(c). If a party includes in any 

such brief or memorandum information 

that has been granted in camera status 

pursuant to § 3.45(b) or is subject to 

confidentiality protections pursuant to a 

protective order, the party shall file 2 

versions of the document in accordance 

with the procedures set forth in 

§ 3.45(e). If the Commission (or, when 

appropriate, the Administrative Law 

Judge) determines that there is no 

genuine issue as to any material fact 

regarding liability or relief, it shall issue 

a final decision and order. In the event 

that the motion has been referred to the 

Administrative Law Judge, such 

determination by the Administrative 

Law Judge shall constitute his or her 

initial decision and shall conform to the 

procedures set forth in § 3.51(c). A 

summary decision, interlocutory in 

character and in compliance with the 

procedures set forth in § 3.51(c), may be 

rendered on the issue of liability alone 

although there is a genuine issue as to 

relief. 

(3) Affidavits shall set forth such facts 

as would be admissible in evidence and 

shall show affirmatively that the affiant 

is competent to testify to the matters 

stated therein. The Commission (or, 

when appropriate, the Administrative 

Law Judge) may permit affidavits to be 

supplemented or opposed by 

depositions, answers to interrogatories, 

or further affidavits. When a motion for 

summary decision is made and 

supported as provided in this rule, a 

party opposing the motion may not rest 

upon the mere allegations or denials of 

his or her pleading; the response, by 

affidavits or as otherwise provided in 

this rule, must set forth specific facts 

showing that there is a genuine issue of 

material fact for trial. If no such 

response is filed, summary decision, if 

appropriate, shall be rendered. 

(4) Should it appear from the 

affidavits of a party opposing the motion 

that it cannot, for reasons stated, present 

by affidavit facts essential to justify its 

opposition, the Commission (or, when 

appropriate, the Administrative Law 

Judge) may deny the motion for 

summary decision or may order a 

continuance to permit affidavits to be 

obtained or depositions to be taken or 

discovery to be had or make such other 

order as is appropriate and a 

determination to that effect shall be 

made a matter of record. 

(5) If on motion under this rule a 

summary decision is not rendered upon 


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the whole case or for all the relief asked 

and a trial is necessary, the Commission 

(or, when appropriate, the 

Administrative Law Judge) shall issue 

an order specifying the facts that appear 

without substantial controversy and 

directing further proceedings in the 

action. The facts so specified shall be 

deemed established. 

(b) Affidavits filed in bad faith. (1) 

Should it appear to the satisfaction of 

the Commission (or, when appropriate, 

the Administrative Law Judge) at any 

time that any of the affidavits presented 

pursuant to this rule are presented in 

bad faith, or solely for the purpose of 

delay, or are patently frivolous, the 

Commission (or, when appropriate, the 

Administrative Law Judge) shall enter a 

determination to that effect upon the 

record. 

(2) If upon consideration of all 

relevant facts attending the submission 

of any affidavit covered by paragraph 

(b)(1) of this section, the Commission 

(or, when appropriate, the 

Administrative Law Judge) concludes 

that action to suspend or remove an 

attorney from the case is warranted, it 

shall take action as specified in 

§ 3.42(d). If the Administrative Law 

Judge to whom the Commission has 

referred a motion for summary decision 

concludes, upon consideration of all the 

relevant facts attending the submission 

of any affidavit covered by paragraph 

(b)(1) of this section, that the matter 

should be certified to the Commission 

for consideration of disciplinary action 

against an attorney, including 

reprimand, suspension or disbarment, 

the Administrative Law Judge shall 

certify the matter, with his or her 

findings and recommendations, to the 

Commission for its consideration of 

disciplinary action in the manner 

provided by the Commission’s rules.If 

the Commission has addressed the 

motion directly, it may consider such 

disciplinary action without a 

certification by the Administrative Law 

Judge. 

■ 10. Revise § 3.26 to read as follows: 

§ 3.26 Motions following denial of 

preliminary injunctive relief. 

(a) This section sets forth two 

procedures by which respondents may 

obtain consideration of whether 

continuation of an adjudicative 

proceeding is in the public interest after 

a court has denied preliminary 

injunctive relief in a separate 

proceeding brought under section 13(b) 

of the Federal Trade Commission Act, 

15 U.S.C. 53(b), in aid of the 

adjudication. 

(b) A motion under this section shall 

be addressed to the Commission and 

filed with the Secretary of the 

Commission. Such a motion must be 

filed within 14 days after and may not 

be filed sooner than: 

(1) A district court has denied 

preliminary injunctive relief, all 

opportunity has passed for the 

Commission to seek reconsideration of 

the denial or to appeal it, and the 

Commission has neither sought 

reconsideration of the denial nor 

appealed it; or 

(2) A court of appeals has denied 

injunctive relief pending appeal. 

(c) Withdrawal from adjudication. If a 

court has denied preliminary injunctive 

relief to the Commission in a section 

13(b) proceeding brought in aid of an 

adjudicative proceeding, respondents 

may move that the proceeding be 

withdrawn from adjudication in order to 

consider whether or not the public 

interest warrants further litigation. Such 

a motion shall be filed jointly or 

separately by each of the respondents in 

the adjudicative proceeding. Complaint 

counsel may file a response within 14 

days after such motion is filed. The 

matter will not be withdrawn from 

adjudication unless the Commission so 

orders. 

(d) Consideration on the record. 

Instead of a motion to withdraw the 

matter from adjudication, any 

respondent or respondents may file a 

motion under this paragraph to dismiss 

the administrative complaint on the 

basis that the public interest does not 

warrant further litigation after a court 

has denied preliminary injunctive relief 

to the Commission. Complaint counsel 

may file a response within 14 days after 

such motion is filed. The filing of a 

motion to dismiss shall not stay the 

proceeding unless the Commission so 

orders. 

(e) Form. Memoranda in support of or 

in opposition to such motions shall not 

exceed 10,000 words. This word count 

limitation includes headings, footnotes 

and quotations, but does not include the 

cover, table of contents, table of 

citations or authorities, glossaries, 

statements with respect to oral 

argument, any addendums containing 

statutes, rules or regulations, any 

certificates of counsel, proposed form of 

order, and any attachment required by 

§ 3.45(e). 

(f) In camera materials. If any filing 

includes materials that are subject to 

confidentiality protections pursuant to 

an order entered in either the 

proceeding under section 13(b) or in the 

proceeding under this part, such 

materials shall be treated as in camera 

materials for purposes of this paragraph 

and the party shall file 2 versions of the 

document in accordance with the 

procedures set forth in § 3.45(e). The 

time within which complaint counsel 

may file an answer under this paragraph 

will begin to run upon service of the in 

camera version of the motion (including 

any supporting briefs and memoranda). 

■ 11. Revise § 3.31, to read as follows: 

§ 3.31 General discovery provisions. 

(a) Discovery methods. Parties may 

obtain discovery by one or more of the 

following methods: Depositions upon 

oral examination or written questions; 

written interrogatories; production of 

documents or things for inspection and 

other purposes; and requests for 

admission. Except as provided in the 

rules, or unless the Administrative Law 

Judge orders otherwise, the frequency or 

sequence of these methods is not 

limited. The parties shall, to the greatest 

extent practicable, conduct discovery 

simultaneously; the fact that a party is 

conducting discovery shall not operate 

to delay any other party’s discovery. 

(b) Mandatory initial disclosures. 

Complaint counsel and respondent’s 

counsel shall, within 5 days of receipt 

of a respondent’s answer to the 

complaint and without awaiting a 

discovery request, provide to each other: 

(1) The name, and, if known, the 

address and telephone number of each 

individual likely to have discoverable 

information relevant to the allegations 

of the Commission’s complaint, to the 

proposed relief, or to the defenses of the 

respondent, as set forth in § 3.31(c)(1); 

and 

(2) A copy of, or a description by 

category and location of, all documents 

and electronically stored information 

including declarations, transcripts of 

investigational hearings and 

depositions, and tangible things in the 

possession, custody, or control of the 

Commission or respondent(s) that are 

relevant to the allegations of the 

Commission’s complaint, to the 

proposed relief, or to the defenses of the 

respondent, as set forth in § 3.31(c)(1); 

unless such information or materials are 

subject to the limitations in § 3.31(c)(2), 

privileged as defined in § 3.31(c)(4), 

pertain to hearing preparation as 

defined in § 3.31(c)(5), pertain to experts 

as defined in § 3.31A, or are obtainable 

from some other source that is more 

convenient, less burdensome, or less 

expensive. A party shall make its 

disclosures based on the information 

then reasonably available to it and is not 

excused from making its disclosures 

because it has not fully completed its 

investigation. 

(c) Scope of discovery. Unless 

otherwise limited by order of the 

Administrative Law Judge or the 

Commission in accordance with these 


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rules, the scope of discovery is as 

follows: 

(1) In general. Parties may obtain 

discovery to the extent that it may be 

reasonably expected to yield 

information relevant to the allegations 

of the complaint, to the proposed relief, 

or to the defenses of any respondent. 

Such information may include the 

existence, description, nature, custody, 

condition and location of any books, 

documents, other tangible things, 

electronically stored information, and 

the identity and location of persons 

having any knowledge of any 

discoverable matter. Information may 

not be withheld from discovery on 

grounds that the information will be 

inadmissible at the hearing if the 

information sought appears reasonably 

calculated to lead to the discovery of 

admissible evidence. 

(2) Limitations. Complaint counsel 

need only search for materials that were 

collected or reviewed in the course of 

the investigation of the matter or 

prosecution of the case and that are in 

the possession, custody or control of the 

Bureaus or Offices of the Commission 

that investigated the matter, including 

the Bureau of Economics. The 

Administrative Law Judge may 

authorize for good cause additional 

discovery of materials in the possession, 

custody, or control of those Bureaus or 

Offices, or authorize other discovery 

pursuant to § 3.36. Neither complaint 

counsel, respondent, nor a third party 

receiving a discovery request under 

these rules is required to search for 

materials generated and transmitted 

between an entity’s counsel (including 

counsel’s legal staff or in-house counsel) 

and not shared with anyone else, or 

between complaint counsel and nontestifying Commission employees, 

unless the Administrative Law Judge 

determines there is good cause to 

provide such materials. The frequency 

or extent of use of the discovery 

methods otherwise permitted under 

these rules shall be limited by the 

Administrative Law Judge if he or she 

determines that: 

(i) The discovery sought is 

unreasonably cumulative or duplicative, 

or is obtainable from some other source 

that is more convenient, less 

burdensome, or less expensive; 

(ii) The party seeking discovery has 

had ample opportunity by discovery in 

the action to obtain the information 

sought; or 

(iii) The burden and expense of the 

proposed discovery outweigh its likely 

benefit. 

(3) Electronically stored information. 

A party need not provide discovery of 

electronically stored information from 

sources that the party identifies as not 

reasonably accessible because of undue 

burden or cost. On a motion to compel 

discovery, the party from whom 

discovery is sought must show that the 

information is not reasonably accessible 

because of undue burden or cost. If that 

showing is made, the Administrative 

Law Judge may nonetheless order 

discovery if the requesting party shows 

good cause, considering the limitations 

of paragraph (c)(2). The Administrative 

Law Judge may specify conditions for 

the discovery. 

(4) Privilege. Discovery shall be 

denied or limited in order to preserve 

the privilege of a witness, person, or 

governmental agency as governed by the 

Constitution, any applicable act of 

Congress, or the principles of the 

common law as they may be interpreted 

by the Commission in the light of reason 

and experience. 

(5) Hearing preparations: Materials. 

Subject to the provisions of § 3.31A, a 

party may obtain discovery of 

documents and tangible things 

otherwise discoverable under paragraph 

(c)(1) of this section and prepared in 

anticipation of litigation or for hearing 

by or for another party or by or for that 

other party’s representative (including 

the party’s attorney, consultant, or 

agent) only upon a showing that the 

party seeking discovery has substantial 

need of the materials in the preparation 

of its case and that the party is unable 

without undue hardship to obtain the 

substantial equivalent of the materials 

by other means. In ordering discovery of 

such materials when the required 

showing has been made, the 

Administrative Law Judge shall protect 

against disclosure of the mental 

impressions, conclusions, opinions, or 

legal theories of an attorney or other 

representative of a party. 

(d) Protective orders; order to preserve 

evidence. In order to protect the parties 

and third parties against improper use 

and disclosure of confidential 

information, the Administrative Law 

Judge shall issue a protective order as 

set forth in the appendix to this section. 

The Administrative Law Judge may also 

deny discovery or make any other order 

which justice requires to protect a party 

or other person from annoyance, 

embarrassment, oppression, or undue 

burden or expense, or to prevent undue 

delay in the proceeding. Such an order 

may also be issued to preserve evidence 

upon a showing that there is substantial 

reason to believe that such evidence 

would not otherwise be available for 

presentation at the hearing. 

(e) Supplementation of disclosures 

and responses. A party who has made 

a mandatory initial disclosure under 

§ 3.31(b) or responded to a request for 

discovery with a disclosure or response 

is under a duty to supplement or correct 

the disclosure or response to include 

information thereafter acquired if 

ordered by the Administrative Law 

Judge or in the following circumstances: 

(1) A party is under a duty to 

supplement at appropriate intervals its 

mandatory initial disclosures under 

§ 3.31(b) if the party learns that in some 

material respect the information 

disclosed is incomplete or incorrect and 

if the additional or corrective 

information has not otherwise been 

made known to the other parties during 

the discovery process or in writing. 

(2) A party is under a duty to amend 

in a timely manner a prior response to 

an interrogatory, request for production, 

or request for admission if the party 

learns that the response is in some 

material respect incomplete or incorrect. 

(f) Stipulations. When approved by 

the Administrative Law Judge, the 

parties may by written stipulation (1) 

provide that depositions may be taken 

before any person, at any time or place, 

upon any notice, and in any manner and 

when so taken may be used like other 

depositions, and (2) modify the 

procedures provided by these rules for 

other methods of discovery. 

(g) Ex parte rulings on applications 

for compulsory process. Applications 

for the issuance of subpoenas to compel 

testimony at an adjudicative hearing 

pursuant to § 3.34 may be madeex parte, 

and, if so made, such applications and 

rulings thereon shall remain ex parte 

unless otherwise ordered by the 

Administrative Law Judge or the 

Commission. 

(h) Inadvertent production. The 

inadvertent production of information 

produced by a party or third party in 

discovery that is subject to a claim of 

privilege or immunity for hearing 

preparation material shall not waive 

such claims as to that or other 

information regarding the same subject 

matter if the Administrative Law Judge 

determines that the holder of the claim 

made efforts reasonably designed to 

protect the privilege or the hearing 

preparation material, provided, 

however, this provision shall not apply 

if the party, or an entity related to that 

party, who inadvertently produced the 

privileged information relies upon such 

information to support a claim or 

defense. 

(i) Restriction on filings. Unless 

otherwise ordered by the Administrative 

Law Judge in his or her discretion, 

mandatory initial and supplemental 

disclosures, interrogatories, depositions, 

requests for documents, requests for 

admissions, and answers and responses 


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thereto shall be served upon other 

parties but shall not be filed with the 

Office of the Secretary, the 

Administrative Law Judge, or otherwise 

provided to the Commission, except to 

support or oppose a motion or to offer 

as evidence. 

Appendix A to § 3.31: Standard 

Protective Order 

For the purpose of protecting the 

interests of the parties and third parties 

in the above-captioned matter against 

improper use and disclosure of 

confidential information submitted or 

produced in connection with this 

matter: 

It is hereby ordered that this 

Protective Order Governing Confidential 

Material (‘‘Protective Order’’) shall 

govern the handling of all Discovery 

Material, as hereafter defined. 

1. As used in this Order, ‘‘confidential 

material’’ shall refer to any document or 

portion thereof that contains privileged, 

competitively sensitive information, or 

sensitive personal information. 

‘‘Sensitive personal information’’ shall 

refer to, but shall not be 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 identified by 

individual, such as an individual’s 

medical records. ‘‘Document’’ shall refer 

to any discoverable writing, recording, 

transcript of oral testimony, or 

electronically stored information in the 

possession of a party or a third party. 

‘‘Commission’’ shall refer to the Federal 

Trade Commission (‘‘FTC’’), or any of its 

employees, agents, attorneys, and all 

other persons acting on its behalf, 

excluding persons retained as 

consultants or experts for purposes of 

this proceeding. 

2. Any document or portion thereof 

submitted by a respondent or a third 

party during a Federal Trade 

Commission investigation or during the 

course of this proceeding that is entitled 

to confidentiality under the Federal 

Trade Commission Act, or any 

regulation, interpretation, or precedent 

concerning documents in the possession 

of the Commission, as well as any 

information taken from any portion of 

such document, shall be treated as 

confidential material for purposes of 

this Order. The identity of a third party 

submitting such confidential material 

shall also be treated as confidential 

material for the purposes of this Order 

where the submitter has requested such 

confidential treatment. 

3. The parties and any third parties, 

in complying with informal discovery 

requests, disclosure requirements, or 

discovery demands in this proceeding 

may designate any responsive document 

or portion thereof as confidential 

material, including documents obtained 

by them from third parties pursuant to 

discovery or as otherwise obtained. 

4. The parties, in conducting 

discovery from third parties, shall 

provide to each third party a copy of 

this Order so as to inform each such 

third party of his, her, or its rights 

herein. 

5. A designation of confidentiality 

shall constitute a representation in good 

faith and after careful determination 

that the material is not reasonably 

believed to be already in the public 

domain and that counsel believes the 

material so designated constitutes 

confidential material as defined in 

Paragraph of this Order. 

6. Material may be designated as 

confidential by placing on or affixing to 

the document containing such material 

(in such manner as will not interfere 

with the legibility thereof), or if an 

entire folder or box of documents is 

confidential by placing or affixing to 

that folder or box, the designation 

‘‘CONFIDENTIAL—FTC Docket No. 

XXXX’’ or any other appropriate notice 

that identifies this proceeding, together 

with an indication of the portion or 

portions of the document considered to 

be confidential material. Confidential 

information contained in electronic 

documents may also be designated as 

confidential by placing the designation 

‘‘CONFIDENTIAL—FTC Docket No. 

XXXX’’ or any other appropriate notice 

that identifies this proceeding, on the 

face of the CD or DVD or other medium 

on which the document is produced. 

Masked or otherwise redacted copies of 

documents may be produced where the 

portions deleted contain privileged 

matter, provided that the copy produced 

shall indicate at the appropriate point 

that portions have been deleted and the 

reasons therefor. 

7. Confidential material shall be 

disclosed only to: (a) the Administrative 

Law Judge presiding over this 

proceeding, personnel assisting the 

Administrative Law Judge, the 

Commission and its employees, and 

personnel retained by the Commission 

as experts or consultants for this 

proceeding; (b) judges and other court 

personnel of any court having 

jurisdiction over any appellate 

proceedings involving this matter; (c) 

outside counsel of record for any 

respondent, their associated attorneys 

and other employees of their law 

firm(s), provided they are not employees 

of a respondent; (d) anyone retained to 

assist outside counsel in the preparation 

or hearing of this proceeding including 

consultants, provided they are not 

affiliated in any way with a respondent 

and have signed an agreement to abide 

by the terms of the protective order; and 

(e) any witness or deponent who may 

have authored or received the 

information in question. 

8. Disclosure of confidential material 

to any person described in Paragraph 7 

of this Order shall be only for the 

purposes of the preparation and hearing 

of this proceeding, or any appeal 

therefrom, and for no other purpose 

whatsoever, provided, however, that the 

Commission may, subject to taking 

appropriate steps to preserve the 

confidentiality of such material, use or 

disclose confidential material as 

provided by its Rules of Practice; 

sections 6(f) and 21 of the Federal Trade 

Commission Act; or any other legal 

obligation imposed upon the 

Commission. 

9. In the event that any confidential 

material is contained in any pleading, 

motion, exhibit or other paper filed or 

to be filed with the Secretary of the 

Commission, the Secretary shall be so 

informed by the Party filing such 

papers, and such papers shall be filed in 

camera. To the extent that such material 

was originally submitted by a third 

party, the party including the materials 

in its papers shall immediately notify 

the submitter of such inclusion. 

Confidential material contained in the 

papers shall continue to have in camera 

treatment until further order of the 

Administrative Law Judge, provided, 

however, that such papers may be 

furnished to persons or entities who 

may receive confidential material 

pursuant to Paragraphs 7 or 8. Upon or 

after filing any paper containing 

confidential material, the filing party 

shall file on the public record a 

duplicate copy of the paper that does 

not reveal confidential material. 

Further, if the protection for any such 

material expires, a party may file on the 

public record a duplicate copy which 

also contains the formerly protected 

material. 

10. If counsel plans to introduce into 

evidence at the hearing any document 

or transcript containing confidential 

material produced by another party or 

by a third party, they shall provide 

advance notice to the other party or 

third party for purposes of allowing that 

party to seek an order that the document 

or transcript be granted in camera 

treatment. If that party wishes in camera 

treatment for the document or 

transcript, the party shall file an 

appropriate motion with the 


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Administrative Law Judge within 5 days 

after it receives such notice. Except 

where such an order is granted, all 

documents and transcripts shall be part 

of the public record. Where in camera 

treatment is granted, a duplicate copy of 

such document or transcript with the 

confidential material deleted therefrom 

may be placed on the public record. 

11. If any party receives a discovery 

request in another proceeding that may 

require the disclosure of confidential 

material submitted by another party or 

third party, the recipient of the 

discovery request shall promptly notify 

the submitter of receipt of such request. 

Unless a shorter time is mandated by an 

order of a court, such notification shall 

be in writing and be received by the 

submitter at least 10 business days 

before production, and shall include a 

copy of this Protective Order and a 

cover letter that will apprise the 

submitter of its rights hereunder. 

Nothing herein shall be construed as 

requiring the recipient of the discovery 

request or anyone else covered by this 

Order to challenge or appeal any order 

requiring production of confidential 

material, to subject itself to any 

penalties for non-compliance with any 

such order, or to seek any relief from the 

Administrative Law Judge or the 

Commission. The recipient shall not 

oppose the submitter’s efforts to 

challenge the disclosure of confidential 

material. In addition, nothing herein 

shall limit the applicability of Rule 

4.11(e) of the Commission’s Rules of 

Practice, 16 CFR 4.11(e), to discovery 

requests in another proceeding that are 

directed to the Commission. 

12. At the time that any consultant or 

other person retained to assist counsel 

in the preparation of this action 

concludes participation in the action, 

such person shall return to counsel all 

copies of documents or portions thereof 

designated confidential that are in the 

possession of such person, together with 

all notes, memoranda or other papers 

containing confidential information. At 

the conclusion of this proceeding, 

including the exhaustion of judicial 

review, the parties shall return 

documents obtained in this action to 

their submitters, provided, however, 

that the Commission’s obligation to 

return documents shall be governed by 

the provisions of Rule 4.12 of the Rules 

of Practice, 16 CFR 4.12. 

13. The provisions of this Protective 

Order, insofar as they restrict the 

communication and use of confidential 

discovery material, shall, without 

written permission of the submitter or 

further order of the Commission, 

continue to be binding after the 

conclusion of this proceeding. 

■ 12. Add § 3.31A to read as follows: 

§ 3.31A Expert discovery. 

(a) The parties shall serve each other 

with a list of experts they intend to call 

as witnesses at the hearing not later than 

1 day after the close of fact discovery, 

meaning the close of discovery except 

for depositions and other discovery 

permitted under § 3.24(a)(4), and 

discovery for purposes of authenticity 

and admissibility of exhibits. Complaint 

counsel shall serve the other parties 

with a report prepared by each of its 

expert witnesses not later than 14 days 

after the close of fact discovery. Each 

respondent shall serve each other party 

with a report prepared by each of its 

expert witnesses not later than 28 days 

after the close of fact discovery. 

Complaint counsel shall serve 

respondents with a list of any rebuttal 

expert witnesses and a rebuttal report 

prepared by each such witness not later 

than 38 days after the close of fact 

discovery. Each side will be limited to 

calling at the evidentiary hearing 5 

expert witnesses, including any rebuttal 

expert witnesses. A party may file a 

motion seeking leave to call additional 

expert witnesses due to extraordinary 

circumstances. Each report shall be 

signed by the expert and contain a 

complete statement of all opinions to be 

expressed and the basis and reasons 

therefor; 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 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 

as an expert at trial or by deposition 

within the preceding 4 years. A rebuttal 

report need not include any information 

already included in the initial report of 

the witness. Aside from any required 

information, a rebuttal report shall be 

limited to rebuttal of matters set forth in 

respondents’ expert reports. If material 

outside the scope of fair rebuttal is 

presented, respondents may seek 

appropriate relief, including striking of 

all or part of the report or leave to 

submit a surrebuttal report. 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. 

(b) A party may depose any person 

who has been identified as an expert 

whose opinions may be presented at 

trial. Unless otherwise ordered by the 

Administrative Law Judge, a deposition 

of any expert witness shall be 

conducted after the disclosure of a 

report prepared by the witness in 

accordance with paragraph (a). 

Depositions of expert witnesses shall be 

completed not later than 65 days after 

the close of fact discovery. Upon 

motion, the Administrative Law Judge 

may order further discovery by other 

means, subject to such restrictions as to 

scope as the Administrative Law Judge 

may deem appropriate. A party, 

however, may not discover facts known 

or opinions held by an expert who has 

been retained or specially employed by 

another party in anticipation of 

litigation or preparation for hearing and 

who is not listed as a witness at hearing. 

■ 13. Revise § 3.33 to read as follows: 

§ 3.33 Depositions. 

(a) In general. Any party may take a 

deposition of any named person or of a 

person or persons described with 

reasonable particularity, provided that 

such deposition is reasonably expected 

to yield information within the scope of 

discovery under § 3.31(c)(1). Such party 

may, by motion, obtain from the 

Administrative Law Judge an order to 

preserve relevant evidence upon a 

showing that there is substantial reason 

to believe that such evidence would not 

otherwise be available for presentation 

at the hearing. Depositions may be taken 

before any person having power to 

administer oaths, either under the law 

of the United States or of the state or 

other place in which the deposition is 

taken, who may be designated by the 

party seeking the deposition, provided 

that such person shall have no interest 

in the outcome of the proceeding. The 

party seeking the deposition shall serve 

upon each person whose deposition is 

sought and upon each party to the 

proceeding reasonable notice in writing 

of the time and place at which it will 

be taken, and the name and address of 

each person or persons to be examined, 

if known, and if the name is not known, 

a description sufficient to identify them. 

The parties may stipulate in writing or 

the Administrative Law Judge may upon 

motion order that a deposition be taken 

by telephone or other remote electronic 

means. A deposition taken by such 

means is deemed taken at the place 

where the deponent is to answer 

questions. 

(b) The Administrative Law Judge 

may rule on motion by a party that a 

deposition shall not be taken upon a 

determination that such deposition 

would not be reasonably expected to 

meet the scope of discovery set forth 

under § 3.31(c), or that the value of the 

deposition would be outweighed by the 

considerations set forth under § 3.43(b). 

The fact that a witness testifies at an 


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investigative hearing does not preclude 

the deposition of that witness. 

(c) Notice. 

(1) Notice to corporation or other 

organization. A party may name as the 

deponent a public or private 

corporation, partnership, association, 

governmental agency other than the 

Federal Trade Commission, or any 

bureau or regional office to the Federal 

Trade Commission, and describe with 

reasonable particularity the matters on 

which examination is requested. The 

organization so named shall designate 

one or more officers, directors, or 

managing agents, or other persons who 

consent to testify on its behalf, and may 

set forth, for each person designated, the 

matters on which he or she will testify. 

A subpoena shall advise a non-party 

organization of its duty to make such a 

designation. The persons so designated 

shall testify as to matters known or 

reasonably available to the organization. 

This subsection does not preclude 

taking a deposition by any other 

procedure authorized in these rules. 

(2) Notice to Commission. Except as 

provided in § 3.31(i), notices of 

depositions shall not be filed with the 

Office of the Secretary, the 

Administrative Law Judge, or otherwise 

provided to the Commission. 

(d) Taking of deposition. Each 

deponent shall be duly sworn, and any 

party shall have the right to question 

him or her. Objections to questions or to 

evidence presented shall be in short 

form, stating the grounds of objections 

relied upon. The questions propounded 

and the answers thereto, together with 

all objections made, shall be recorded 

and certified by the officer. Thereafter, 

upon payment of the charges therefor, 

the officer shall furnish a copy of the 

deposition to the deponent and to any 

party. 

(e) Depositions upon written 

questions. A party desiring to take a 

deposition upon written questions shall 

serve them upon every other party with 

a notice stating: 

(1) The name and address of the 

person who is to answer them, and 

(2) The name or descriptive title and 

address of the officer before whom the 

deposition is to be taken. 

A deposition upon written questions 

may be taken of a public or private 

corporation, partnership, association, 

governmental agency other than the 

Federal Trade Commission, or any 

bureau or regional office of the Federal 

Trade Commission in accordance with 

the provisions of § 3.33(c). Within 30 

days after the notice and written 

questions are served, any other party 

may serve cross questions upon all other 

parties. Within 10 days after being 

served with cross questions, the party 

taking the deposition may serve redirect 

questions upon all other parties. Within 

10 days after being served with redirect 

questions, any other party may serve 

recross questions upon all other parties. 

The content of any question shall not be 

disclosed to the deponent prior to the 

taking of the deposition. A copy of the 

notice and copies of all questions served 

shall be delivered by the party taking 

the deposition to the officer designated 

in the notice, who shall proceed 

promptly to take the testimony of the 

deponent in response to the questions 

and to prepare, certify, and file or mail 

the deposition, attaching thereto the 

copy of the notice and the questions 

received by him or her. When the 

deposition is filed the party taking it 

shall promptly give notice thereof to all 

other parties. 

(f) Correction of deposition. A 

deposition may be corrected, as to form 

or substance, in the manner provided by 

§ 3.44(b). Any such deposition shall, in 

addition to the other required 

procedures, be read to or by the 

deponent and signed by him or her, 

unless the parties by stipulation waive 

the signing or the deponent is 

unavailable or cannot be found or 

refuses to sign. If the deposition is not 

signed by the deponent within 30 days 

of its submission or attempted 

submission, the officer shall sign it and 

certify that the signing has been waived 

or that the deponent is unavailable or 

that the deponent has refused to sign, as 

the case may be, together with the 

reason for the refusal to sign, if any has 

been given. The deposition may then be 

used as though signed unless, on a 

motion to suppress under 

§ 3.33(g)(3)(iv), the Administrative Law 

Judge determines that the reasons given 

for the refusal to sign require rejection 

of the deposition in whole or in part. In 

addition to and not in lieu of the 

procedure for formal correction of the 

deposition, the deponent may enter in 

the record at the time of signing a list 

of objections to the transcription of his 

or her remarks, stating with specificity 

the alleged errors in the transcript. 

(g) Objections; errors and 

irregularities. 

(1) Objections to admissibility. Subject 

to the provisions of paragraph (g)(3) of 

this section, objection may be made at 

the hearing to receiving in evidence any 

deposition or part thereof for any reason 

which would require the exclusion of 

the evidence if the witness were then 

present and testifying. 

(2) Effect of errors and irregularities in 

depositions—(i)As to notice. All errors 

and irregularities in the notice for taking 

a deposition are waived unless written 

objection is promptly served upon the 

party giving the notice. 

(ii) As to disqualification of officer. 

Objection to taking a deposition because 

of disqualification of the officer before 

whom it is to be taken is waived unless 

made before the taking of the deposition 

begins or as soon thereafter as the 

disqualification becomes known or 

could be discovered with reasonable 

diligence. 

(iii) As to taking of deposition. (A) 

Objections to the competency of a 

witness or to the competency, 

relevancy, or materiality of testimony 

are not waived by failure to make them 

before or during the taking of the 

deposition, unless the ground of the 

objection is one which might have been 

obviated or removed if presented at that 

time. 

(B) Errors and irregularities occurring 

at the oral examination in the manner of 

taking the deposition, in the form of the 

questions or answers, in the oath or 

affirmation, or in the conduct of parties, 

and errors of any kind which might be 

obviated, removed, or cured if promptly 

presented, are waived unless seasonable 

objection thereto is made at the taking 

of the deposition. 

(C) Objections to the form of written 

questions are waived unless served in 

writing upon all parties within the time 

allowed for serving the succeeding cross 

or other questions and within 5 days 

after service of the last questions 

authorized. 

(iv) As to completion and return of 

deposition. Errors and irregularities in 

the manner in which the testimony is 

transcribed or the deposition is 

prepared, signed, certified, endorsed, or 

otherwise dealt with by the officer are 

waived unless a motion to suppress the 

deposition or some part thereof is made 

with reasonable promptness after such 

defect is or with due diligence might 

have been ascertained. 

■ 14. Revise § 3.34 to read as follows: 

§ 3.34 Subpoenas. 

(a) Subpoenas ad testificandum. 

Counsel for a party may sign and issue 

a subpoena, on a form provided by the 

Secretary, requiring a person to appear 

and give testimony at the taking of a 

deposition to a party requesting such 

subpoena or to attend and give 

testimony at an adjudicative hearing. 

(b) Subpoenas duces tecum; 

subpoenas to permit inspection of 

premises. Counsel for a party may sign 

and issue a subpoena, on a form 

provided by the Secretary, commanding 

a person to produce and permit 

inspection and copying of designated 

books, documents, or tangible things, or 

commanding a person to permit 


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inspection of premises, at a time and 

place therein specified. The subpoena 

shall specify with reasonable 

particularity the material to be 

produced. The person commanded by 

the subpoena need not appear in person 

at the place of production or inspection 

unless commanded to appear for a 

deposition or hearing pursuant to 

paragraph (a) of this section. As used 

herein, the term ‘‘documents’’ includes 

written materials, electronically stored 

information, and tangible things. A 

subpoena duces tecum may be used by 

any party for purposes of discovery, for 

obtaining documents for use in 

evidence, or for both purposes, and 

shall specify with reasonable 

particularity the materials to be 

produced. 

(c) Motions to quash; limitation on 

subpoenas subject to § 3.36. Any motion 

by the subject of a subpoena to limit or 

quash the subpoena shall be filed within 

the earlier of 10 days after service 

thereof or the time for compliance 

therewith. Such motions shall set forth 

all assertions of privilege or other 

factual and legal objections to the 

subpoena, including all appropriate 

arguments, affidavits and other 

supporting documentation, and shall 

include the statement required by 

§ 3.22(g). Nothing in paragraphs (a) and 

(b) of this section authorizes the 

issuance of subpoenas requiring the 

appearance of, or the production of 

documents in the possession, custody, 

or control of, an official or employee of 

a governmental agency other than the 

Commission, the Commissioners, the 

General Counsel, the Bureaus and 

Offices not involved in the matter, the 

office of Administrative Law Judges, or 

the Secretary in his or her capacity as 

custodian or recorder of any such 

information, or their respective staffs, or 

subpoenas to be served in a foreign 

country, which may be authorized only 

in accordance with § 3.36. 

■ 15. Revise § 3.35 to read as follows: 

§ 3.35 Interrogatories to parties. 

(a) Availability; procedures for use. (1) 

Any party may serve upon any other 

party written interrogatories, not 

exceeding 25 in number, including all 

discrete subparts, to be answered by the 

party served or, if the party served is a 

public or private corporation, 

partnership, association or 

governmental agency, by any officer or 

agent, who shall furnish such 

information as is available to the party. 

For this purpose, information shall not 

be deemed to be available insofar as it 

is in the possession of the 

Commissioners, the General Counsel, 

the office of Administrative Law Judges, 

or the Secretary in his or her capacity 

as custodian or recorder of any such 

information, or their respective staffs. 

(2) Each interrogatory shall be 

answered separately and fully in writing 

under oath, unless it is objected to on 

grounds not raised and ruled on in 

connection with the authorization, in 

which event the reasons for objection 

shall be stated in lieu of an answer. The 

answers are to be signed by the person 

making them, and the objections signed 

by the attorney making them. The party 

upon whom the interrogatories have 

been served shall serve a copy of the 

answers, and objections, if any, within 

30 days after the service of the 

interrogatories. The Administrative Law 

Judge may allow a shorter or longer 

time. 

(3) Except as provided in § 3.31(i), 

interrogatories shall not be filed with 

the Office of the Secretary, the 

Administrative Law Judge, or otherwise 

provided to the Commission. 

(b) Scope; use at hearing. (1) 

Interrogatories may relate to any matters 

that can be inquired into under 

§ 3.31(c)(1), and the answers may be 

used to the extent permitted by the rules 

of evidence. 

(2) An interrogatory otherwise proper 

is not necessarily objectionable merely 

because an answer to the interrogatory 

involves an opinion or contention that 

relates to fact or the application of law 

to fact, but such an interrogatory need 

not be answered until after 

designated discovery has been 

completed or until a pre-trial conference 

or other later time. 

(c) Option to produce records. Where 

the answer to an interrogatory may be 

derived or ascertained from the records 

of the party upon whom the 

interrogatory has been served or from an 

examination, audit or inspection of such 

records, or from a compilation, abstract 

or summary based thereon, and the 

burden of deriving or ascertaining the 

answer is substantially the same for the 

party serving the interrogatory as for the 

party served, it is a sufficient answer to 

such interrogatory to specify the records 

from which the answer may be derived 

or ascertained and to afford to the party 

serving the interrogatory reasonable 

opportunity to examine, audit or inspect 

such records and to make copies, 

compilations, abstracts or summaries. 

The specification shall include 

sufficient detail to permit the 

interrogating party to identify readily 

the individual documents from which 

the answer may be ascertained. 

■ 16. Revise § 3.36, to read as follows: 

§ 3.36 Applications for subpoenas for 

records of or appearances by certain 

officials or employees of the Commission 

or officials or employees of governmental 

agencies other than the Commission, and 

subpoenas to be served in a foreign 

country. 

(a) Form. An application for issuance 

of a subpoena for the production of 

documents, as defined in § 3.34(b), or 

for the issuance of a request requiring 

the production of or access to 

documents, other tangible things, or 

electronically stored information for the 

purposes described in § 3.37(a), in the 

possession, custody, or control of the 

Commissioners, the General Counsel, 

any Bureau or Office not involved in the 

matter, the office of Administrative Law 

Judges, or the Secretary in his or her 

capacity as custodian or recorder of any 

such information, or their respective 

staffs, or of a governmental agency other 

than the Commission or the officials or 

employees of such other agency, or for 

the issuance of a subpoena requiring the 

appearance of a Commissioner, the 

General Counsel, an official of any 

Bureau or Office not involved in the 

matter, an Administrative Law Judge, or 

the Secretary in his or her capacity as 

custodian or recorder of any such 

information, or their respective staffs, or 

of an official or employee of another 

governmental agency, or for the 

issuance of a subpoena to be served in 

a foreign country, shall be made in the 

form of a written motion filed in 

accordance with the provisions of 

§ 3.22(a). No application for records 

pursuant to § 4.11 of this chapter or the 

Freedom of Information Act may be 

filed with the Administrative Law 

Judge. 

(b) Content. The motion shall make a 

showing that: 

(1) The material sought is reasonable 

in scope; 

(2) If for purposes of discovery, the 

material falls within the limits of 

discovery under § 3.31(c)(1), or, if for an 

adjudicative hearing, the material is 

reasonably relevant; 

(3) If for purposes of discovery, the 

information or material sought cannot 

reasonably be obtained by other means 

or, if for purposes of compelling a 

witness to appear at the evidentiary 

hearing, the movant has a compelling 

need for the testimony; 

(4) With respect to subpoenas to be 

served in a foreign country, that the 

party seeking discovery or testimony 

has a good faith belief that the discovery 

requested would be permitted by treaty, 

law, custom or practice in the country 

from which the discovery or testimony 

is sought and that any additional 

procedural requirements have been or 


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will be met before the subpoena is 

served; and 

(5) If the subpoena requires access to 

documents or other tangible things, it 

meets the requirements of § 3.37. 

(c) Execution. If an Administrative 

Law Judge issues an Order authorizing 

a subpoena pursuant to this section, the 

moving party may forward to the 

Secretary a request for the authorized 

subpoena, with a copy of the 

authorizing Order attached. Each such 

subpoena shall be signed by the 

Secretary; shall have attached to it a 

copy of the authorizing Order; and shall 

be served by the moving party only in 

conjunction with a copy of the 

authorizing Order. 

■ 17. Revise § 3.37, to read as follows: 

§ 3.37 Production of documents, 

electronically stored information, and any 

tangible things; access for inspection and 

other purposes. 

(a) Availability; procedures for use. 

Any party may serve on another party 

a request: to produce and permit the 

party making the request, or someone 

acting on the party’s behalf, to inspect 

and copy any designated documents or 

electronically stored information, as 

defined in § 3.34(b), or to inspect and 

copy, test, or sample any tangible things 

which are within the scope of 

§ 3.31(c)(1) and in the possession, 

custody or control of the party upon 

whom the request is served; or to permit 

entry upon designated land or other 

property in the possession or control of 

the party upon whom the order would 

be served for the purpose of inspection 

and measuring, surveying, 

photographing, testing, or sampling the 

property or any designated object or 

operation thereon, within the scope of 

§ 3.31(c)(1). Each such request shall 

specify with reasonable particularity the 

documents or things to be produced or 

inspected, or the property to be entered. 

Each such request shall also specify a 

reasonable time, place, and manner of 

making the production or inspection 

and performing the related acts. Each 

request may specify the form in which 

electronically stored information is to be 

produced, but the requested form of 

electronically stored information must 

not be overly burdensome or 

unnecessarily costly to the producing 

party. A party shall make documents 

available as they are kept in the usual 

course of business or shall organize and 

label them to correspond with the 

categories in the request. A person not 

a party to the action may be compelled 

to produce documents and things or to 

submit to an inspection as provided in 

§ 3.34. Except as provided in § 3.31(i), 

requests under this section shall not be 

filed with the Office of the Secretary, 

the Administrative Law Judge, or 

otherwise provided to the Commission. 

(b) Response; objections. No more 

than 30 days after receiving the request, 

the response of the party upon whom 

the request is served shall state, with 

respect to each item or category, that 

inspection and related activities will be 

permitted as requested, unless the 

request is objected to, in which event 

the reasons for the objection shall be 

stated. If objection is made to part of an 

item or category, the part shall be 

specified and inspection permitted of 

the remaining parts. The response may 

state an objection to a requested form for 

producing electronically stored 

information. If the responding party 

objects to a requested form — or if no 

form was specified in the request — the 

party must state the form it intends to 

use. The party submitting the request 

may move for an order under § 3.38(a) 

with respect to any objection to or other 

failure to respond to the request or any 

part thereof, or any failure to permit 

inspection as requested. 

(c) Production of documents or 

electronically stored information. 

Unless otherwise stipulated or ordered 

by the Administrative Law Judge, these 

procedures apply to producing 

documents or electronically stored 

information: 

(i) A party must produce documents 

as they are kept in the usual course of 

business or must organize and label 

them to correspond to the categories in 

the request; 

(ii) If a request does not specify a form 

for producing electronically stored 

information, a party must produce it in 

a form in which it is ordinarily 

maintained or in a reasonably usable 

form; and 

(iii) A party need not produce the 

same electronically stored information 

in more than one form. 

■ 18. Revise § 3.38 to read as follows: 

§ 3.38 Motion for order compelling 

disclosure or discovery; sanctions. 

(a) Motion for order to compel. A 

party may apply by motion to the 

Administrative Law Judge for an order 

compelling disclosure or discovery, 

including a determination of the 

sufficiency of the answers or objections 

with respect to the mandatory initial 

disclosures required by § 3.31(b), a 

request for admission under § 3.32, a 

deposition under § 3.33, an 

interrogatory under § 3.35, or a 

production of documents or things or 

access for inspection or other purposes 

under § 3.37. Any memorandum in 

support of such motion shall be no 

longer than 2,500 words. Any response 

to the motion by the opposing party 

must be filed within 5 days of receipt of 

service of the motion and shall be no 

longer than 2,500 words. These word 

count limitations include headings, 

footnotes and quotations, but do not 

include the cover, table of contents, 

table of citations or authorities, 

glossaries, statements with respect to 

oral argument, any addendums 

containing statutes, rules or regulations, 

any certificates of counsel, proposed 

form of order, and any attachment 

required by § 3.45(e). The 

Administrative Law Judge shall rule on 

a motion to compel within 3 business 

days of the date in which the response 

is due. Unless the Administrative Law 

Judge determines that the objection is 

justified, the Administrative Law Judge 

shall order that an initial disclosure or 

an answer to any requests for 

admissions, documents, depositions, or 

interrogatories be served or disclosure 

otherwise be made. 

(b) If a party or an officer or agent of 

a party fails to comply with any 

discovery obligation imposed by these 

rules, upon motion by the aggrieved 

party, the Administrative Law Judge or 

the Commission, or both, may take such 

action in regard thereto as is just, 

including but not limited to the 

following: 

(1) Order that any answer be amended 

to comply with the request, subpoena, 

or order; 

(2) Order that the matter be admitted 

or that the admission, testimony, 

documents or other evidence would 

have been adverse to the party; 

(3) Rule that for the purposes of the 

proceeding the matter or matters 

concerning which the order or subpoena 

was issued be taken as established 

adversely to the party; 

(4) Rule that the party may not 

introduce into evidence or otherwise 

rely, in support of any claim or defense, 

upon testimony by such party, officer, 

agent, expert or fact witness, 

or the documents or other evidence, 

or upon any other improperly withheld 

or undisclosed materials, information, 

witnesses or other discovery; 

(5) Rule that the party may not be 

heard to object to introduction and use 

of secondary evidence to show what the 

withheld admission, testimony, 

documents, or other evidence would 

have shown; 

(6) Rule that a pleading, or part of a 

pleading, or a motion or other 

submission by the party, concerning 

which the order or subpoena was 

issued, be stricken, or that a decision of 

the proceeding be rendered against the 

party, or both. 


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(c) Any such action may be taken by 

written or oral order issued in the 

course of the proceeding or by inclusion 

in an initial decision of the 

Administrative Law Judge or an order or 

opinion of the Commission. It shall be 

the duty of parties to seek and 

Administrative Law Judges to grant such 

of the foregoing means of relief or other 

appropriate relief as may be sufficient to 

compensate for withheld testimony, 

documents, or other evidence. If in the 

Administrative Law Judge’s opinion 

such relief would not be sufficient, or in 

instances where a nonparty fails to 

comply with a subpoena or order, he or 

she shall certify to the Commission a 

request that court enforcement of the 

subpoena or order be sought. 

■ 19. Revise § 3.38A to read as follows: 

§ 3.38A Withholding requested material. 

(a) Any person withholding material 

responsive to a subpoena issued 

pursuant to § 3.34 or § 3.36, written 

interrogatories requested pursuant to 

§ 3.35, a request for production or access 

pursuant to § 3.37, or any other request 

for the production of materials under 

this part, shall assert a claim of privilege 

or any similar claim not later than the 

date set for production of the material. 

Such person shall, if so directed in the 

subpoena or other request for 

production, submit, together with such 

claim, a schedule which describes the 

nature of the documents, 

communications, or tangible things not 

produced or disclosed — and does so in 

a manner that, without revealing 

information itself privileged or 

protected, will enable other parties to 

assess the claim. The schedule need not 

describe any material outside the scope 

of the duty to search set forth in 

§ 3.31(c)(2) except to the extent that the 

Administrative Law Judge has 

authorized additional discovery as 

provided in that paragraph. 

(b) A person withholding material for 

reasons described in § 3.38A(a) shall 

comply with the requirements of that 

subsection in lieu of filing a motion to 

limit or quash compulsory process. 

(Sec. 5, 38 Stat. 719 as amended (15 

U.S.C. 45)) 

■ 20. Revise § 3.39 to read as follows: 

§ 3.39 Orders requiring witnesses to 

testify or provide other information and 

granting immunity. 

(a) Where Commission complaint 

counsel desire the issuance of an order 

requiring a witness or deponent to 

testify or provide other information and 

granting immunity under title 18, 

section 6002, United States Code, 

Directors and Assistant Directors of 

Bureaus and Regional Directors and 

Assistant Regional Directors of 

Commission Regional Offices who 

supervise complaint counsel 

responsible for presenting evidence in 

support of the complaint are authorized 

to determine: 

(1) That the testimony or other 

information sought from a witness or 

deponent, or prospective witness or 

deponent, may be necessary to the 

public interest, and 

(2) That such individual has refused 

or is likely to refuse to testify or provide 

such information on the basis of his or 

her privilege against self-incrimination; 

and to request, through the 

Commission’s liaison officer, approval 

by the Attorney General for the issuance 

of such order. Upon receipt of approval 

by the Attorney General (or his or her 

designee), the Administrative Law Judge 

is authorized to issue an order requiring 

the witness or deponent to testify or 

provide other information and granting 

immunity when the witness or 

deponent has invoked his or her 

privilege against self-incrimination and 

it cannot be determined that such 

privilege was improperly invoked. 

(b) Requests by counsel other than 

Commission complaint counsel for an 

order requiring a witness to testify or 

provide other information and granting 

immunity under title 18, section 6002, 

United States Code, may be made to the 

Administrative Law Judge and may be 

madeex parte. When such requests are 

made, the Administrative Law Judge is 

authorized to determine: 

(1) That the testimony or other 

information sought from a witness or 

deponent, or prospective witness or 

deponent, may be necessary to the 

public interest, and 

(2) That such individual has refused 

or is likely to refuse to testify or provide 

such information on the basis of his or 

her privilege against self-incrimination; 

and, upon making such determinations, 

to request, through the Commission’s 

liaison officer, approval by the Attorney 

General for the issuance of an order 

requiring a witness to testify or provide 

other information and granting 

immunity; and, after the Attorney 

General (or his or her designee) has 

granted such approval, to issue such 

order when the witness or deponent has 

invoked his or her privilege against selfincrimination and it cannot be 

determined that such privilege was 

improperly invoked. 

(18 U.S.C. 6002, 6004) 

■ 21. Revise § 3.41, including the 

heading, to read as follows: 

§ 3.41 General hearing rules. 

(a) Public hearings. All hearings in 

adjudicative proceedings shall be public 

unless an in camera order is entered by 

the Administrative Law Judge pursuant 

to § 3.45(b) of this chapter or unless 

otherwise ordered by the Commission. 

(b) Expedition. Hearings shall proceed 

with all reasonable expedition, and, 

insofar as practicable, shall be held at 

one place and shall continue, except for 

brief intervals of the sort normally 

involved in judicial proceedings, 

without suspension until concluded. 

The hearing will take place on the date 

specified in the notice accompanying 

the complaint, pursuant to § 3.11(b)(4), 

and should be limited to no more than 

210 hours. The Commission, upon a 

showing of good cause, may order a 

later date for the evidentiary hearing to 

commence or extend the number of 

hours for the hearing. Consistent with 

the requirements of expedition: 

(1) The Administrative Law Judge 

may order hearings at more than one 

place and may grant a reasonable recess 

at the end of a case-in-chief for the 

purpose of discovery deferred during 

the pre-hearing procedure if the 

Administrative Law Judge determines 

that such recess will materially expedite 

the ultimate disposition of the 

proceeding. 

(2) When actions involving a common 

question of law or fact are pending 

before the Administrative Law Judge, 

the Commission or the Administrative 

Law Judge may order a joint hearing of 

any or all the matters in issue in the 

actions; the Commission or the 

Administrative Law Judge may order all 

the actions consolidated; and the 

Commission or the Administrative Law 

Judge may make such orders concerning 

proceedings therein as may tend to 

avoid unnecessary costs or delay. 

(3) When separate hearings will be 

conducive to expedition and economy, 

the Commission or the Administrative 

Law Judge may order a separate hearing 

of any claim, or of any separate issue, 

or of any number of claims or issues. 

(4) Each side shall be allotted no more 

than half of the trial time within which 

to present its opening statements, in 

limine motions, all arguments excluding 

the closing argument, direct or cross 

examinations, or other evidence. 

(5) Each side shall be permitted to 

make an opening statement that is no 

more than 2 hours in duration. 

(6) Each side shall be permitted to 

make a closing argument no later than 

5 days after the last filed proposed 

findings. The closing argument shall last 

no longer than 2 hours. 

(c) Rights of parties. Every party, 

except intervenors, whose rights are 

determined under § 3.14, shall have the 

right of due notice, cross-examination, 

presentation of evidence, objection, 


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motion, argument, and all other rights 

essential to a fair hearing. 

(d) Adverse witnesses. 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. 

(e) Requests for an order requiring a 

witness to testify or provide other 

information and granting immunity 

under title 18, section 6002, of the 

United States Code, shall be disposed of 

in accordance with § 3.39. 

(f) Collateral federal court actions.The 

pendency of a collateral federal court 

proceeding that relates to the 

administrative adjudication shall not 

stay the proceeding unless the 

Commission (or a court of competent 

jurisdiction) so orders for good cause. A 

stay shall toll any deadlines set by the 

rules. 

(18 U.S.C. 6002, 6004) 

■ 22. Revise § 3.42 to read as follows: 

§ 3.42 Presiding officials. 

(a) Who presides. Hearings in 

adjudicative proceedings shall be 

presided over by a duly qualified 

Administrative Law Judge or by the 

Commission or one or more members of 

the Commission sitting as 

Administrative Law Judges; and the 

term Administrative Law Judge as used 

in this part means and applies to the 

Commission or any of its members 

when so sitting. The Commission or one 

or more members of the Commission 

may preside over discovery and other 

prehearing proceedings and then 

transfer the matter to an Administrative 

Law Judge to preside over any 

remaining prehearing proceedings and 

the evidentiary hearing and to issue an 

initial decision. 

(b) How assigned. The presiding 

Administrative Law Judge shall be 

designated by the Chief Administrative 

Law Judge or, when the Commission or 

one or more of its members preside, by 

the Commission, who shall notify the 

parties of the Administrative Law Judge 

designated. 

(c) Powers and duties. Administrative 

Law Judges shall have the duty to 

conduct fair and impartial hearings, to 

take all necessary action to avoid delay 

in the disposition of proceedings, and to 

maintain order. They shall have all 

powers necessary to that end, including 

the following: 

(1) To administer oaths and 

affirmations; 

(2) To issue subpoenas and orders 

requiring answers to questions; 

(3) To take depositions or to cause 

depositions to be taken; 

(4) To compel admissions, upon 

request of a party or on their own 

initiative; 

(5) To rule upon offers of proof and 

receive evidence; 

(6) To regulate the course of the 

hearings and the conduct of the parties 

and their counsel therein; 

(7) To hold conferences for 

settlement, simplification of the issues, 

or any other proper purpose; 

(8) To consider and rule upon, as 

justice may require, all procedural and 

other motions appropriate in an 

adjudicative proceeding, including 

motions to open defaults; 

(9) To make and file initial decisions; 

(10) To certify questions to the 

Commission for its determination; 

(11) To reject written submissions that 

fail to comply with rule requirements, 

or deny in camera status without 

prejudice until a party complies with all 

relevant rules; and 

(12) To take any action authorized by 

the rules in this part or in conformance 

with the provisions of the 

Administrative Procedure Act as 

restated and incorporated in title 5, 

United States Code. 

(d) Suspension of attorneys by 

Administrative Law Judge. The 

Administrative Law Judge shall have the 

authority, for good cause stated on the 

record, to suspend or bar from 

participation in a particular proceeding 

any attorney who shall refuse to comply 

with his or her directions, or who shall 

be guilty of disorderly, dilatory, 

obstructionist, or contumacious 

conduct, or contemptuous language in 

the course of such proceeding. Any 

attorney so suspended or barred may 

appeal to the Commission in accordance 

with the provisions of § 3.23(a). The 

appeal shall not operate to suspend the 

hearing unless otherwise ordered by the 

Administrative Law Judge or the 

Commission; in the event the hearing is 

not suspended, the attorney may 

continue to participate therein pending 

disposition of the appeal. 

(e) Substitution of Administrative Law 

Judge. In the event of the substitution of 

a new Administrative Law Judge for the 

one originally designated, any motion 

predicated upon such substitution shall 

be made within 5 days thereafter. 

(f) Interference. In the performance of 

their adjudicative functions, 

Administrative Law Judges shall not be 

responsible to or subject to the 

supervision or direction of any officer, 

employee, or agent engaged in the 

performance of investigative or 

prosecuting functions for the 

Commission, and all direction by the 

Commission to Administrative Law 

Judges concerning any adjudicative 

proceedings shall appear in and be 

made a part of the record. 

(g) Disqualification of Administrative 

Law Judges. (1) When an Administrative 

Law Judge deems himself or herself 

disqualified to preside in a particular 

proceeding, he or she shall withdraw 

therefrom by notice on the record and 

shall notify the Director of 

Administrative Law Judges of such 

withdrawal. 

(2) Whenever any party shall deem 

the Administrative Law Judge for any 

reason to be disqualified to preside, or 

to continue to preside, in a particular 

proceeding, such party may file with the 

Secretary a motion addressed to the 

Administrative Law Judge to disqualify 

and remove him or her, such motion to 

be supported by affidavits setting forth 

the alleged grounds for disqualification. 

If the Administrative Law Judge does 

not disqualify himself or herself within 

10 days, he or she shall certify the 

motion to the Commission, together 

with any statement he or she may wish 

to have considered by the Commission. 

The Commission shall promptly 

determine the validity of the grounds 

alleged, either directly or on the report 

of another Administrative Law Judge 

appointed to conduct a hearing for that 

purpose. 

(3) Such motion shall be filed at the 

earliest practicable time after the 

participant learns, or could reasonably 

have learned, of the alleged grounds for 

disqualification. 

(h)Failure to comply with 

Administrative Law Judge’s directions. 

Any party who refuses or fails to 

comply with a lawfully issued order or 

direction of an Administrative Law 

Judge may be considered to be in 

contempt of the Commission. The 

circumstances of any such neglect, 

refusal, or failure, together with a 

recommendation for appropriate action, 

shall be promptly certified by the 

Administrative Law Judge to the 

Commission. The Commission may 

make such orders in regard thereto as 

the circumstances may warrant. 

■ 23. Revise § 3.43 to read as follows: 

§ 3.43 Evidence. 

(a) Burden of proof. Counsel 

representing the Commission, or any 

person who has filed objections 

sufficient to warrant the holding of an 

adjudicative hearing pursuant to § 3.13, 

shall have the burden of proof, but the 

proponent of any factual proposition 

shall be required to sustain the burden 

of proof with respect thereto. 

(b) Admissibility. Relevant, material, 

and reliable evidence shall be admitted. 


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Irrelevant, immaterial, and unreliable 

evidence shall be excluded. Evidence, 

even if relevant, may be excluded if its 

probative value is substantially 

outweighed by the danger of unfair 

prejudice, confusion of the issues, or if 

the evidence would be misleading, or by 

considerations of undue delay, waste of 

time, or needless presentation of 

cumulative evidence. 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 paragraph, depositions, 

investigational hearings, prior testimony 

in Commission 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. Statements or 

testimony by a party-opponent, if 

relevant, shall be admitted. 

(c)Admissibility of third party 

documents. Extrinsic evidence of 

authenticity as a condition precedent to 

admissibility of documents received 

from third parties is not required with 

respect to the original or a duplicate of 

a domestic record of regularly 

conducted activity by that third party 

that otherwise meets the standards of 

admissibility described in paragraph (b) 

if accompanied by a written declaration 

of its custodian or other qualified 

person, in a manner complying with any 

Act of Congress or rule prescribed by 

the Supreme Court pursuant to statutory 

authority, certifying that the record: (1) 

was made at or near the time of the 

occurrence of the matters set forth by, or 

from information transmitted by, a 

person with knowledge of those matters; 

(2) was kept in the course of the 

regularly conducted activity; and (3) 

was made by the regularly conducted 

activity as a regular practice. 

(d) Presentation of evidence. 

(1) 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 Commission or the 

Administrative Law Judge, may be 

required for a full and true disclosure of 

the facts. 

(2) The Administrative Law Judge 

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. 

(3) 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) Information obtained in 

investigations. Any documents, papers, 

books, physical exhibits, or other 

materials or information obtained by the 

Commission under any of its powers 

may be disclosed by counsel 

representing the Commission when 

necessary in connection with 

adjudicative proceedings and may be 

offered in evidence by counsel 

representing the Commission in any 

such proceeding. 

(f) Official notice. ‘‘Official notice’’ 

may be taken of any material fact that 

is not subject to reasonable dispute in 

that it is either (1) generally known 

within the Commission’s expertise, or 

(2) 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 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. 

(g) Objections. Objections to evidence 

shall timely and briefly state the 

grounds relied upon, but the transcript 

shall not include argument or debate 

thereon except as ordered by the 

Administrative Law Judge. Rulings on 

all objections shall appear in the record. 

(h) Exceptions. Formal exception to 

an adverse ruling is not required. 

(i) Excluded evidence. When an 

objection to a question propounded to a 

witness is sustained, the questioner may 

make a specific offer of what he or she 

expects to prove by the answer of the 

witness, or the Administrative Law 

Judge may, in his or her discretion, 

receive and report the evidence in full. 

Rejected exhibits, adequately marked for 

identification, shall be retained in the 

record so as to be available for 

consideration by any reviewing 

authority. 

■ 24. Revise § 3.44 to read as follows: 

§ 3.44 Record. 

(a) Reporting and transcription. 

Hearings shall be stenographically 

reported and transcribed by the official 

reporter of the Commission under the 

supervision of the Administrative Law 

Judge, and the original transcript shall 

be a part of the record and the sole 

official transcript. The live oral 

testimony of each witness shall be video 

recorded digitally, and the video 

recording and the written transcript of 

the testimony shall be made part of the 

record. Copies of transcripts are 

available from the reporter at rates not 

to exceed the maximum rates fixed by 

contract between the Commission and 

the reporter. 

(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 Administrative Law Judge or agreed 

to in a written stipulation signed by all 

counsel and parties not represented by 

counsel, and approved by the 

Administrative Law Judge, shall be 

included in the record, and such 

stipulations, except to the extent they 

are capricious or without substance, 

shall be approved by the Administrative 

Law Judge. Corrections shall not be 

ordered by the Administrative Law 

Judge 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 Commission. 

(c) Closing of the hearing record. 

Upon completion of the evidentiary 

hearing, the Administrative Law Judge 

shall issue an order closing the hearing 

record after giving the parties 3 business 

days to determine if the record is 

complete or needs to be supplemented. 

The Administrative Law Judge shall 

retain the discretion to permit or order 

correction of the record as provided in 

§ 3.44(b). 

■ 25. Revise § 3.45 to read as follows: 

§ 3.45 In camera orders. 

(a) Definition. Except as hereinafter 

provided, material made subject to an in 

cameraorder will be kept confidential 

and not placed on the public record of 

the proceeding in which it was 

submitted. Only respondents, their 

counsel, authorized Commission 

personnel, and court personnel 

concerned with judicial review may 

have access thereto, provided that the 

Administrative Law Judge, the 

Commission and reviewing courts may 

disclose such in camera material to the 

extent necessary for the proper 

disposition of the proceeding. 


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(b) In camera treatment of material. A 

party or third party may obtain in 

cameratreatment for material, or 

portions thereof, offered into evidence 

only by motion to the Administrative 

Law Judge. Parties who seek to use 

material obtained from a third party 

subject to confidentiality restrictions 

must demonstrate that the third party 

has been given at least 10 days notice of 

the proposed use of such material. Each 

such motion must include an 

attachment containing a copy of each 

page of the document in question on 

which in camera or otherwise 

confidential excerpts appear. The 

Administrative Law Judge may order 

that such material, whether admitted or 

rejected, be placed in cameraonly after 

finding that its public disclosure will 

likely result in a clearly defined, serious 

injury to the person, partnership or 

corporation requesting in camera 

treatment. This finding shall be based 

on the standard articulated in H.P. Hood 

& Sons, Inc., 58 F.T.C. 1184, 1188 

(1961); see also Bristol-Myers Co., 90 

F.T.C. 455, 456 (1977), which 

established a three-part test that was 

modified by General Foods Corp., 95 

F.T.C. 352, 355 (1980). The party 

submitting material for which in camera 

treatment is sought must provide, for 

each piece of such evidence and affixed 

to such evidence, the name and address 

of any person who should be notified in 

the event that the Commission intends 

to disclose in camera information in a 

final decision. No material, or portion 

thereof, offered into evidence, whether 

admitted or rejected, may be withheld 

from the public record unless it falls 

within the scope of an order issued in 

accordance with this section, stating the 

date on whichin camera treatment will 

expire, and including: 

(1) A description of the material; 

(2) A statement of the reasons for 

granting in camera treatment; and 

(3) A statement of the reasons for the 

date on which in camera treatment will 

expire. Such expiration date may not be 

omitted except in unusual 

circumstances, in which event the order 

shall state with specificity the reasons 

why the need for confidentiality of the 

material, or portion thereof at issue is 

not likely to decrease over time, and any 

other reasons why such material is 

entitled to in camera treatment for an 

indeterminate period. If an in camera 

order is silent as to duration, without 

explanation, then it will expire 3 years 

after its date of issuance. Material 

subject to an in camera order shall be 

segregated from the public record and 

filed in a sealed envelope, or other 

appropriate container, bearing the title, 

the docket number of the proceeding, 

the notation ‘‘In Camera Record under 

§ 3.45,’’ and the date on which in 

camera treatment expires. If the 

Administrative Law Judge has 

determined thatin camera treatment 

should be granted for an indeterminate 

period, the notation should state that 

fact. 

Parties are not required to provide 

documents subject to in camera 

treatment, including documents 

obtained from third parties, to any 

individual or entity other than the 

Administrative Law Judge, counsel for 

other parties, and, during an appeal, the 

Commission or a federal court. 

(c) Release of in camera material. In 

camera material constitutes part of the 

confidential records of the Commission 

and is subject to the provisions of § 4.11 

of this chapter. 

(d) Briefs and other submissions 

referring to in camera or confidential 

information. Parties shall not disclose 

information that has been granted in 

camera status pursuant to § 3.45(b) or is 

subject to confidentiality protections 

pursuant to a protective order in the 

public version of proposed findings, 

briefs, or other documents. This 

provision does not preclude references 

in such proposed findings, briefs, or 

other documents to in camera or other 

confidential information or general 

statements based on the content of such 

information. 

(e) When in camera or confidential 

information is included in briefs and 

other submissions. If a party includes 

specific information that has been 

granted in camerastatus pursuant to 

§ 3.45(b) or is subject to confidentiality 

protections pursuant to a protective 

order in any document filed in a 

proceeding under this part, the party 

shall file 2 versions of the document. A 

complete version shall be marked ‘‘In 

Camera’’ or ‘‘Subject to Protective 

Order,’’ as appropriate, on the first page 

and shall be filed with the Secretary and 

served by the party on the other parties 

in accordance with the rules in this part. 

Submitters of in camera or other 

confidential material should mark any 

such material in the complete versions 

of their submissions in a conspicuous 

matter, such as with highlighting or 

bracketing. References to in camera or 

confidential material must be supported 

by record citations to relevant 

evidentiary materials and associated 

Administrative Law Judge in camera or 

other confidentiality rulings to confirm 

that in camera or other confidential 

treatment is warranted for such 

material. In addition, the document 

must include an attachment containing 

a copy of each page of the document in 

question on which in camera or 

otherwise confidential excerpts appear, 

and providing the name and address of 

any person who should be notified of 

the Commission’s intent to disclose in a 

final decision any of the in camera or 

otherwise confidential information in 

the document. Any time period within 

which these rules allow a party to 

respond to a document shall run from 

the date the party is served with the 

complete version of the document. An 

expurgated version of the document, 

marked ‘‘Public Record’’ on the first 

page and omitting the in camera and 

confidential information and attachment 

that appear in the complete version, 

shall be filed with the Secretary within 

5 days after the filing of the complete 

version, unless the Administrative Law 

Judge or the Commission directs 

otherwise, and shall be served by the 

party on the other parties in accordance 

with the rules in this part. The 

expurgated 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 in camera version. 

(f) When in camera or confidential 

information is included in rulings or 

recommendations of the Administrative 

Law Judge. If the Administrative Law 

Judge includes in any ruling or 

recommendation information that has 

been granted in camerastatus pursuant 

to § 3.45(b) or is subject to 

confidentiality protections pursuant to a 

protective order, the Administrative 

Law Judge shall file 2 versions of the 

ruling or recommendation. A complete 

version shall be marked ‘‘In Camera’’ or 

‘‘Subject to Protective Order,’’ as 

appropriate, on the first page and shall 

be served upon the parties. The 

complete version will be placed in the 

in camera record of the proceeding. An 

expurgated version, to be filed within 5 

days after the filing of the complete 

version, shall omit thein camera and 

confidential information that appears in 

the complete version, shall be marked 

‘‘Public Record’’ on the first page, shall 

be served upon the parties, and shall be 

included in the public record of the 

proceeding. 

(g) Provisional in camera rulings. The 

Administrative Law Judge may make a 

provisional grant ofin camera status to 

materials if the showing required in 

§ 3.45(b) cannot be made at the time the 

material is offered into evidence but the 

Administrative Law Judge determines 

that the interests of justice would be 

served by such a ruling. Within 20 days 

of such a provisional grant of in camera 

status, the party offering the evidence or 

an interested third party must present a 

motion to the Administrative Law Judge 

for a final ruling on whether in camera 


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treatment of the material is appropriate 

pursuant to § 3.45(b). If no such motion 

is filed, the Administrative Law Judge 

may either exclude the evidence, deny 

in camera status, or take such other 

action as is appropriate. 

■ 26. Revise § 3.46 to read as follows: 

§ 3.46 Proposed findings, conclusions, 

and order. 

(a) General. Within 21 days of the 

closing of the hearing record, each party 

may file with the Secretary for 

consideration of the Administrative Law 

Judge proposed findings of fact, 

conclusions of law, and rule or order, 

together with reasons therefor and briefs 

in support thereof. Such proposals shall 

be in writing, shall be served upon all 

parties, and shall contain adequate 

references to the record and authorities 

relied on. If a party includes in the 

proposals information that has been 

granted in camera status pursuant to 

§ 3.45(b), the party shall file 2 versions 

of the proposals in accordance with the 

procedures set forth in § 3.45(e). Reply 

findings of fact, conclusions of law, and 

briefs may be filed by each party within 

10 days of service of the initial proposed 

findings. 

(b) Exhibit Index. The first statement 

of proposed findings of fact and 

conclusions of law filed by a party shall 

include an index listing for each exhibit 

offered by the party and received in 

evidence: 

(1) The exhibit number, followed by 

(2) The exhibit’s title or a brief 

description if the exhibit is untitled; 

(3) The transcript page at which the 

Administrative Law Judge ruled on the 

exhibit’s admissibility or a citation to 

any written order in which such ruling 

was made; 

(4) The transcript pages at which the 

exhibit is discussed; 

(5) An identification of any other 

exhibit which summarizes the contents 

of the listed exhibit, or of any other 

exhibit of which the listed exhibit is a 

summary; 

(6) A cross-reference, by exhibit 

number, to any other portions of that 

document admitted as a separate exhibit 

on motion by any other party; and 

(7) A statement whether the exhibit 

has been accorded in camera treatment, 

and a citation to the in camera ruling. 

(c) Witness index. The first statement 

of proposed findings of fact and 

conclusions of law filed by a party shall 

also include an index to the witnesses 

called by that party, to include for each 

witness: 

(1) The name of the witness; 

(2) A brief identification of the 

witness; 

(3) The transcript pages at which any 

testimony of the witness appears; and 

(4) A statement whether the exhibit 

has been accordedin camera treatment, 

and a citation to the in camera ruling. 

(d) Stipulated indices. As an 

alternative to the filing of separate 

indices, the parties are encouraged to 

stipulate to joint exhibit and witness 

indices at the time the first statement of 

proposed findings of fact and 

conclusions of law is due to be filed. 

(e) Rulings. The record shall show the 

Administrative Law Judge’s ruling on 

each proposed finding and conclusion, 

except when the order disposing of the 

proceeding otherwise informs the 

parties of the action taken. 

■ 27. Revise § 3.51 to read as follows: 

§ 3.51 Initial decision. 

(a) When filed and when effective. 

The Administrative Law Judge shall file 

an initial decision within 70 days after 

the filing of the last filed initial or reply 

proposed findings of fact, conclusions of 

law and order pursuant to § 3.46, or 

within 85 days of the closing the 

hearing record pursuant to § 3.44(c) 

where the parties have waived the filing 

of proposed findings. The 

Administrative Law Judge, for good 

cause, may extend these time periods by 

30 days. The Administrative Law Judge 

shall file an initial decision within 14 

days after a default or the granting of a 

motion for summary decision. The 

Commission may extend any of these 

time limits. In no event shall the 

Administrative Law Judge file an initial 

decision later than 1 year after the 

issuance of the administrative 

complaint. Extensions of the 1-year 

deadline may be granted by the 

Commission upon a finding of 

extraordinary circumstances and if 

appropriate in the public interest. Once 

issued, the initial decision shall become 

the decision of the Commission 30 days 

after service thereof upon the parties or 

30 days after the filing of a timely notice 

of appeal, whichever shall be later, 

unless a party filing such a notice shall 

have perfected an appeal by the timely 

filing of an appeal brief or the 

Commission shall have issued an order 

placing the case on its own docket for 

review or staying the effective date of 

the decision. 

(b) Exhaustion of administrative 

remedies. An initial decision shall not 

be considered final agency action 

subject to judicial review under 5 U.S.C. 

704. Any objection to a ruling by the 

Administrative Law Judge, or to a 

finding, conclusion or a provision of the 

order in the initial decision, which is 

not made a part of an appeal to the 

Commission shall be deemed to have 

been waived. 

(c) Content, format for filing. (1) An 

initial decision shall be based on a 

consideration of the whole record 

relevant to the issues decided, and shall 

be supported by reliable and probative 

evidence. The initial 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 therefor, 

upon all the material issues of fact, law, 

or discretion presented on the record (or 

those designated under paragraph (c)(2) 

of this section) and an appropriate rule 

or order. Rulings containing information 

granted in camera status pursuant to 

§ 3.45 shall be filed in accordance with 

§ 3.45(f). 

(2) The initial decision shall be 

prepared in a common word processing 

format, such as WordPerfect or Word, 

and shall be filed by the Administrative 

Law Judge with the Office of the 

Secretary in both electronic and paper 

versions. 

(3) When more than one claim for 

relief is presented in an action, or when 

multiple parties are involved, the 

Administrative Law Judge may direct 

the entry of an initial 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 initial 

decision. 

(d) By whom made. The initial 

decision shall be made and filed by the 

Administrative Law Judge who presided 

over the hearings, except when he or 

she shall have become unavailable to 

the Commission. 

(e) Reopening of proceeding by 

Administrative Law Judge; termination 

of jurisdiction. (1) At any time from the 

close of the hearing record pursuant to 

§ 3.44(c) until the filing of his or her 

initial decision, an Administrative Law 

Judge may reopen the proceeding for the 

reception of further evidence for good 

cause shown. 

(2) Except for the correction of clerical 

errors or pursuant to an order of remand 

from the Commission, the jurisdiction of 

the Administrative Law Judge is 

terminated upon the filing of his or her 

initial decision with respect to those 

issues decided pursuant to paragraph 

(c)(1) of this section. 

■ 28. Revise § 3.52 to read as follows: 

§ 3.52 Appeal from initial decision. 

(a) Who may file; notice of intention. 

Any party to a proceeding may appeal 

an initial decision to the Commission by 

filing a notice of appeal with the 


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Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Proposed Rules 58857 

Secretary within 10 days after service of 

the initial decision. The notice shall 

specify the party or parties against 

whom the appeal is taken and shall 

designate the initial decision and order 

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 5 days after service of 

the first notice, or within 10 days after 

service of the initial decision, 

whichever period expires last. 

(b) Appeal brief. (1) The appeal shall 

be in the form of a brief, filed within 30 

days after service of the initial decision, 

and shall contain, in the order 

indicated, the following: 

(i) A subject index of the matter in the 

brief, with page references, and a table 

of cases (alphabetically arranged), 

textbooks, statutes, and other material 

cited, with page references thereto; 

(ii) A concise statement of the case, 

which includes a statement of facts 

relevant to the issues submitted for 

review, and a summary of the argument, 

which must contain a succinct, clear, 

and accurate statement of the arguments 

made in the body of the brief, and 

which must not merely repeat the 

argument headings; 

(iii) A specification of the questions 

intended to be urged; 

(iv) The argument presenting clearly 

the points of fact and law relied upon 

in support of the position taken on each 

question, with specific page references 

to the record and the legal or other 

material relied upon; and 

(v) A proposed form of order for the 

Commission’s consideration instead of 

the order contained in the initial 

decision. 

(2) The brief shall not, without leave 

of the Commission, exceed 14,000 

words. 

(c) Answering brief. Within 30 days 

after service of the appeal brief, the 

appellee may file an answering brief, 

which shall contain a subject index, 

with page references, and a table of 

cases (alphabetically arranged), 

textbooks, statutes, and other material 

cited, with page references thereto, as 

well as arguments in response to the 

appellant’s appeal brief. However, if the 

appellee is also cross-appealing, its 

answering brief shall also contain its 

arguments as to any issues the party is 

raising on cross-appeal, including the 

points of fact and law relied upon in 

support of its position on each question, 

with specific page references to the 

record and legal or other material on 

which the party relies in support of its 

cross-appeal, and a proposed form of 

order for the Commission’s 

consideration instead of the order 

contained in the initial decision. If the 

appellee does not cross-appeal, its 

answering brief shall not, without leave 

of the Commission, exceed 14,000 

words. If the appellee cross-appeals, its 

brief in answer and on cross-appeal 

shall not, without leave of the 

Commission, exceed 16,500 words. 

(d) Reply brief. Within 7 days after 

service of the appellee’s answering brief, 

the appellant may file a reply brief, 

which shall be limited to rebuttal of 

matters in the answering brief and shall 

not, without leave of the Commission, 

exceed 7,000 words. If the appellee has 

cross-appealed, any party who is the 

subject of the cross-appeal may, within 

30 days after service of such appellee’s 

brief, file a reply brief, which shall be 

limited to rebuttal of matters in the 

appellee’s brief and shall not, without 

leave of the Commission, exceed 7,000 

words. The appellee who has crossappealed may, within 7 days after 

service of a reply to its cross-appeal, file 

an additional brief, which shall be 

limited to rebuttal of matters in the 

reply to its cross-appeal and shall not, 

without leave of the Commission, 

exceed 7,000 words. The Commission 

will not consider new arguments or 

matters raised in reply briefs that could 

have been raised earlier in the principal 

briefs. 

(e) In camera information. If a party 

includes in any brief to be filed under 

this section information that has been 

granted in camera status pursuant to 

§ 3.45(b) or is subject to confidentiality 

provisions pursuant to a protective 

order, the party shall file 2 versions of 

the brief in accordance with the 

procedures set forth in § 3.45(e). The 

time period specified by this section 

within which a party may file an 

answering or reply brief will begin to 

run upon service on the party of the in 

camera or confidential version of a 

brief. 

(f) Signature. (1) The original of each 

brief filed shall have a hand-signed 

signature by an attorney of record for 

the party, or in the case of parties not 

represented by counsel, by the party 

itself, or by a partner if a partnership, 

or by an officer of the party if it is a 

corporation or an unincorporated 

association. 

(2) Signing a brief constitutes a 

representation by the signer that he or 

she has read it; that to the best of his 

or her knowledge, information, and 

belief, the statements made in it are 

true; that it is not interposed for delay; 

that it complies all the applicable word 

count limitation; and that to the best of 

his or her knowledge, information, and 

belief, it complies with all the other 

rules in this part. If a brief is not signed 

or is signed with intent to defeat the 

purpose of this section, it may be 

stricken as sham and false and the 

proceeding may go forward as though 

the brief has not been filed. 

(g) Designation of appellant and 

appellee in cases involving crossappeals. In a case involving an appeal 

by complaint counsel and one or more 

respondents, any respondent who has 

filed a timely notice of appeal and as to 

whom the Administrative Law Judge 

has issued an order to cease and desist 

shall be deemed an appellant for 

purposes of paragraphs (b), (c), and (d) 

of this section. In a case in which the 

Administrative Law Judge has 

dismissed the complaint as to all 

respondents, complaint counsel shall be 

deemed the appellant for purposes of 

paragraphs (b), (c), and (d) of this 

section. 

(h) Oral argument. All oral arguments 

shall be public unless otherwise ordered 

by the Commission. Oral arguments will 

be held in all cases on appeal to the 

Commission unless the Commission 

otherwise orders upon its own initiative 

or upon request of any party made at the 

time of filing his or her brief. Oral 

arguments before the Commission shall 

be reported stenographically, unless 

otherwise ordered, and a member of the 

Commission absent from an oral 

argument may participate in the 

consideration and decision of the appeal 

in any case in which the oral argument 

is stenographically reported. 

(i) Corrections in transcript of oral 

argument. The Commission will 

entertain only joint motions of the 

parties requesting corrections in the 

transcript of oral argument, except that 

the Commission will receive a unilateral 

motion which recites that the parties 

have made a good faith effort to 

stipulate to the desired corrections but 

have been unable to do so. If the parties 

agree in part and disagree in part, they 

should file a joint motion incorporating 

the extent of their agreement, and, if 

desired, separate motions requesting 

those corrections to which they have 

been unable to agree. The Secretary, 

pursuant to delegation of authority by 

the Commission, is authorized to 

prepare and issue in the name of the 

Commission a brief ‘‘Order Correcting 

Transcript’’ whenever a joint motion to 

correct transcript is received. 

(j) Briefs of amicus curiae. A brief of 

an amicus curiae may be filed by leave 

of the Commission granted on motion 

with notice to the parties or at the 

request of the Commission, except that 

such leave shall not be required when 

the brief is presented by an agency or 

officer of the United States; or by a 

State, territory, commonwealth, or the 

District of Columbia, or by an agency or 


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58858 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Proposed Rules 

officer of any of them. The brief may be 

conditionally filed with the motion for 

leave. A motion for leave shall identify 

the interest of the applicant and state 

how a Commission decision in the 

matter would affect the applicant or 

persons it represents. The motion shall 

also state the reasons why a brief of an 

amicus curiae is desirable. Except as 

otherwise permitted by the Commission, 

an amicus curiae shall file its brief 

within the time allowed the parties 

whose position as to affirmance or 

reversal the amicus brief will support. 

The Commission shall grant leave for a 

later filing only for cause shown, in 

which event it shall specify within what 

period such brief must be filed. A 

motion for an amicus curiae to 

participate in oral argument will be 

granted only for extraordinary reasons. 

An amicus brief may be no more than 

one-half the maximum length 

authorized by these rules for a party’s 

principal brief. 

(k) Word count limitation. The word 

count limitations in this section include 

headings, footnotes and quotations, but 

do not include the cover, table of 

contents, table of citations or 

authorities, glossaries, statements with 

respect to oral argument, any 

addendums containing statutes, rules or 

regulations, any certificates of counsel, 

proposed form of order, and any 

attachment required by § 3.45(e). 

Extensions of word count limitations are 

disfavored, and will only be granted 

where a party can make a strong 

showing that undue prejudice would 

result from complying with the existing 

limit. 

PART 4—MISCELLANEOUS RULES 

■ 1. The authority citation for part 4 

continues to read as follows: 

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

noted. 

■ 2. Amend § 4.3 by revising paragraph 

(b) as follows: 

§ 4.3 Time. 

* * * * * 

(b) Extensions. For good cause shown, 

the Administrative Law Judge may, in 

any proceeding before him or her: (1) 

extend any time limit prescribed or 

allowed by order of the Administrative 

Law Judge or the Commission (if the 

Commission order expressly authorizes 

the Administrative Law Judge to extend 

time periods); or (2) extend any time 

limit prescribed by the rules in this 

chapter, except those governing motions 

directed to the Commission, 

interlocutory appeals and initial 

decisions and deadlines that the rules 

expressly authorize only the 

Commission to extend. Except as 

otherwise provided by law, the 

Commission, for good cause shown, 

may extend any time limit prescribed by 

the rules in this chapter or by order of 

the Commission or an Administrative 

Law Judge, provided, however, that in a 

proceeding pending before an 

Administrative Law Judge, any motion 

on which he or she may properly rule 

shall be made to the Administrative Law 

Judge. Notwithstanding the above, 

where a motion to extend is made after 

the expiration of the specified period, 

the motion may be considered where 

the untimely filing was the result of 

excusable neglect. 

* * * * * 

By direction of the Commission, 

Commissioner Rosch not participating. 

Donald S. Clark 

Secretary 

[FR Doc. E8–23745 Filed 10–6–08: 8:45 am] 

BILLING CODE 6750–01–S 


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