PART 1025—RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS Authority: Consumer Product Safety Act (secs. 15, 20, 27 (15 U.S.C. 2064, 2069, 2076), the Flammable Fabrics Act (sec. 5, 15 U.S.C. 1194), the Federal Trade Commission Act (15 U.S.C. 45)), unless otherwise noted. Source: 45 FR 29215, May 1, 1980, unless otherwise noted. Subpart A—Scope of Rules, Nature of Adjudicative Proceedings, Definitions § 1025.1 Scope of rules. The rules in this part govern procedures in adjudicative proceedings relating to the provisions of section 15 (c), (d), and (f) and 17(b) of the Consumer Product Safety Act (15 U.S.C. 2064 (c), (d), (f); 2066(b)), section 15 of the Federal Hazardous Substances Act (15 U.S.C. 1274), and sections 3 and 8(b) of the Flammable Fabrics Act (15 U.S.C. 1192, 1197(b)), which are required by statute to be determined on the record after opportunity for a public hearing. These rules will also govern adjudicative proceedings for the assessment of civil penalties under section 20(a) of the Consumer Product Safety Act (15 U.S.C. 2068(a)), except in those instances where the matter of a civil penalty is presented to a United States District Court in conjunction with an action by the Commission for injunctive or other appropriate relief. These Rules may also be used for such other adjudicative proceedings as the Commission, by order, shall designate. A basic intent of the Commission in the development of these rules has been to promulgate a single set of procedural rules which can accommodate both simple matters and complex matters in adjudication. To accomplish this objective, broad discretion has been vested in the Presiding Officer who will hear a matter being adjudicated to allow him/her to alter time limitations and other procedural aspects of a case, as required by the complexity of the particular matter involved. A major concern of the Commission is that all matters in adjudication move forward in a timely manner, consistent with the Constitutional due process rights of all parties. It is anticipated that in any adjudicative proceedings for the assessment of civil penalties there will be less need for discovery since most factual matters will already be known by the parties. Therefore, the Presiding Officer should, whenever appropriate, expedite the proceedings by setting shorter time limitations than those time limitations generally applicable under these Rules. For example, the 150-day limitation for discovery, as provided in § 1025.31(g), should be shortened, consistent with the extent of discovery reasonably necessary to prepare for the hearing. [45 FR 29215, May 1, 1980, as amended at 47 FR 46846, Oct. 21, 1982] § 1025.2 Nature of adjudicative proceedings. Adjudicative proceedings shall be conducted in accordance with Title 5, United States Code, sections 551 through 559, and these Rules. It is the policy of the Commission that adjudicative proceedings shall be conducted expeditiously and with due regard to the rights and interests of all persons affected and in locations chosen with due regard to the convenience of all parties. Therefore, the Presiding Officer and all parties shall make every effort at each stage of any proceedings to avoid unnecessary delay. § 1025.3 Definitions. As used in this part: (a) Application ex parte (b) Commission (c) Commissioner (d) Complaint Counsel (e) Motion (f) Party (g) Person (h) Petition (i) Presiding Officer (j) Respondent (k) Secretary (l) Staff Additional definitions relating to prohibited communications are in § 1025.68. Subpart B—Pleadings, Form, Execution, Service of Documents § 1025.11 Commencement of proceedings. (a) Notice of institution of enforcement proceedings. (b) Form and content of complaint. (1) A statement of the legal authority for instituting the proceedings, including the specific sections of statutes, rules and regulations involved in each allegation. (2) Identification of each respondent or class of respondents. (3) A clear and concise statement of the charges, sufficient to inform each respondent with reasonable definiteness of the factual basis or bases of the allegations of violation or hazard. A list and summary of documentary evidence supporting the charges shall be attached. (4) A request for the relief which the staff believes is in the public interest. (c) Notice to the public. Federal Register § 1025.12 Answer. (a) Time for filing. (b) Contents of answer. (1) A specific admission or denial of each allegation in the complaint. If a respondent is without knowledge or information sufficient to form a belief as to the truth of an allegation, the respondent shall so state. Such statement shall have the effect of a denial. Allegations that are not denied shall be deemed to have been admitted. (2) A concise statement of the factual or legal defenses to each allegation of the complaint. (c) Default. § 1025.13 Amendments and supplemental pleadings. The Presiding Officer may allow appropriate amendments and supplemental pleadings which do not unduly broaden the issues in the proceedings or cause undue delay. § 1025.14 Form and filing of documents. (a) Filing. (b) Caption. (c) Copies. (d) Signature. (2) By signing a document, the signer represents that the signer has read it and that to the best of the signer's knowledge, information and belief, the statements made in it are true and that it is not filed for purposes of delay. (e) Form. (2) Documents shall be on paper approximately 8 1/2 (3) Documents that fail to comply with this section may be returned by the Secretary. § 1025.15 Time. (a) Computation. (b) Additional time after service by mail. (c) Extensions. § 1025.16 Service. (a) Mandatory service. (b) Service of complaint, ruling, petition for interlocutory appeal, order, decision, or subpoena. (1) By registered or certified mail. (2) By delivery to an individual. (3) By delivery to an address. (4) By publication in the Federal Register. Federal Register (c) Service of other documents. (d) Service on a representative. (e) Certificate of service. I hereby certify that I have served the attached document upon all parties and participants of record in these proceedings by mailing, postage prepaid, (or by delivering in person) a copy to each on (Signature) For (f) Date of service. § 1025.17 Intervention. (a) Participation as an intervenor. (1) A petition shall ordinarily be filed not later than the convening of the first prehearing conference. A petition filed after that time will not be granted unless the Presiding Officer determines that the petitioner has made a substantial showing of good cause for failure to file on time. (2) A petition shall: (i) Identify the specific aspect or aspects of the proceedings as to which the petitioner wishes to intervene, (ii) Set forth the interest of the petitioner in the proceedings, (iii) State how the petitioner's interest may be affected by the results of the proceedings, and (iv) State any other reasons why the petitioner should be permitted to intervene as a party, with particular reference to the factors set forth in paragraph (d) of this section. Any petition relating only to matters outside the jurisdiction of the Commission shall be denied. (3) Any person whose petition for leave to intervene is granted by the Presiding Officer shall be known as an “intervenor” and as such shall have the full range of litigating rights afforded to any other party. (b) Participation by a person not an intervenor. (1) A request shall ordinarily be filed not later than the commencement of the hearing. A petition filed after that time will not be granted unless the Presiding Officer determines that the person making the request has made a substantial showing of good cause for failure to file on time. (2) A request shall set forth the nature and extent of the person's alleged interest in the proceedings. Any request relating only to matters outside the jurisdiction of the Commission shall be denied. (3) Any person who files a request to participate in the proceedings as a non-party and whose request is granted by the Presiding Officer shall be known as a “Participant” and shall have the right to participate in the proceedings to the extent of making a written or oral statement of position, filing proposed findings of fact, conclusions of law and a post hearing brief with the Presiding Officer, and filing an appellate brief before the Commission if an appeal is taken by a party or review is ordered by the Commission in accordance with § 1025.53 or § 1025.54, as applicable, of these rules. (c) Response to petition to intervene. (d) Ruling by Presiding Officer on petition. (1) The nature of the petitioner's interest, under the applicable statute governing the proceedings, to be made a party to the proceedings; (2) The nature and extent of the petitioner's interest in protecting himself/herself/itself or the public against unreasonable risks of injury associated with consumer products; (3) The nature and extent of the petitioner's property, financial or other substantial interest in the proceedings; (4) Whether the petitioner would be aggrieved by any final order which may be entered in the proceedings; (5) The extent to which the peititioner's intervention may reasonably be expected to assist in developing a sound record; (6) The extent to which the petitioner's interest will be represented by existing parties; (7) The extent to which the petitioner's intervention may broaden the issues or delay the proceedings; and (8) The extent to which the petitioner's interest can be protected by other available means. If the Presiding Officer determines that a petitioner has failed to make a sufficient showing to be allowed to intervene as a party, the Presiding Officer shall view such petition to intervene as if it had been timely filed as a request to participate in the proceedings as a participant pursuant to paragraph (b) of this section. (e) Ruling by Presiding Officer on request. et seq. (1) The nature and extent of the person's alleged interest in the proceedings; (2) The possible effect of any final order which may be entered in the proceedings on the person's interest; and (3) The extent to which the person's participation can be expected to assist the Presiding Officer and the Commission in rendering a fair and equitable resolution of all matters in controversy in the proceedings. The Presiding Officer may deny a request to participate if he/she determines that the person's participation cannot reasonably be expected to assist the Presiding Officer or the Commission in rendering a fair and equitable resolution of matters in controversy in the proceedings or if he/she determines that the person's participation would unduly broaden the issues in controversy or unduly delay the proceedings. (f) Designation of single representative. § 1025.18 Class actions. (a) Prerequisites to a class action. (1) The class is so numerous or geographically dispersed that joinder of all members is impracticable; (2) There are questions of fact or issues of law common to the class; (3) The defenses of the representative parties are typical of the defenses of the class; and (4) The representative parties will fairly and adequately protect the interests of the class. (b) Composition of class. (1) Manufacturers, distributors, or retailers, or a combination of them, of products which allegedly have the same defect, or (2) Manufacturers, distributors, or retailers, or a combination of them, of products which allegedly fail to conform to an applicable standard, regulation, or consumer product safety rule, or (3) Manufacturers, distributors, or retailers, or a combination of them, who have themselves allegedly failed to conform to an applicable standard, regulation, or consumer product safety rule. When appropriate, a class may be divided into subclasses and each subclass shall be treated as a class. (c) Notice of commencement. (d) Proper class action determination. (1) The prosecution of separate actions against individual members of the respondent class might result in (i) inconsistent or varying determinations with respect to individual members of the class which might produce incompatible or conflicting results, or (ii) determinations with respect to individual members of the class which would, as a practical matter, be dispositive of the interests of the other members who are not parties to the proceedings or would substantially impair or impede the ability of the absent members to protect their interests; or (2) The Commission has acted on grounds generally applicable to the class, thereby making appropriate an order directed to the class as a whole. In reaching a decision, the Presiding Officer shall consider the interests of members of the class in individually controlling the defense of separate actions, the extent and nature of any proceedings concerning the controversy already commenced against members of the class, the desirability or undesirability of concentrating the litigation in one adjudication, and the difficulties likely to be encountered in the management of a class action, as well as the benefits expected to result from the maintenance of a class action. (e) Revision of class membership. (f) Orders in conduct of class actions. (1) Determining the course of the proceedings or prescribing measures to prevent undue repetition and promote the efficient presentation of evidence or argument; (2) Requiring (for the protection of the members of the class, or otherwise for the fair conduct of the action) that notice be given, in such manner as the Presiding Officer may direct, of any step in the action, of the extent of the proposed order, or of the opportunity for members to inform the Presiding Officer whether they consider the representation to be fair and adequate, or of the opportunity for class members to intervene and present defenses; (3) Requiring that the pleadings be amended to eliminate allegations concerning the representation of absent persons; or (4) Dealing with other procedural matters. The orders may be combined with a prehearing order under § 1025.21 of these rules and may be altered or amended as may be necessary. (g) Scope of final order. (h) Notice of results. § 1025.19 Joinder of proceedings. Two or more matters which have been scheduled for adjudicative proceedings and which involve similar issues may be consolidated for the purpose of hearing or Commission review. A motion for consolidation may be filed by any party to such proceedings not later than thirty (30) days prior to the hearing and served upon all parties to all proceedings in which joinder is contemplated. The motion may include a request that the consolidated proceedings be maintained as a class action in accordance with § 1025.18 of these rules. The proceedings may be consolidated to such extent and upon such terms as may be proper. Such consolidation may also be ordered upon the initiative of the Presiding Officer or the Commission. Single representatives may be designated by represented parties, intervenors, and participants with an identity of interests. Subpart C—Prehearing Procedures, Motions, Interlocutory Appeals, Summary Judgments, Settlements § 1025.21 Prehearing conferences. (a) When held. Federal Register (1) Petitions for leave to intervene; (2) Motions, including motions for consolidation of proceedings and for certification of class actions; (3) Identification, simplification and clarification of the issues; (4) Necessity or desirability of amending the pleadings; (5) Stipulations and admissions of fact and of the content and authenticity of documents; (6) Oppositions to notices of depositions; (7) Motions for protective orders to limit or modify discovery; (8) Issuance of subpoenas to compel the appearance of witnesses and the production of documents; (9) Limitation of the number of witnesses, particularly to avoid duplicate expert witnesses; (10) Matters of which official notice should be taken and matters which may be resolved by reliance upon the laws administered by the Commission or upon the Commission's substantive standards, regulations, and consumer product safety rules; (11) Disclosure of the names of witnesses and of documents or other physical exhibits which are intended to be introduced into evidence; (12) Consideration of offers of settlement; (13) Establishment of a schedule for the exchange of final witness lists, prepared testimony and documents, and for the date, time and place of the hearing, with due regard to the convenience of the parties; and (14) Such other matters as may aid in the efficient presentation or disposition of the proceedings. (b) Public notice. Federal Register (c) Additional conferences. (d) Reporting. (e) Prehearing orders. § 1025.22 Prehearing briefs. Not later than ten (10) days prior to the hearing, unless otherwise ordered by the Presiding Officer, the parties may simultaneously serve and file prehearing briefs which should set forth: (a) A statement of the facts expected to be proved and of the anticipated order of proof; (b) A statement of the issues and the legal arguments in support of the party's contentions with respect to each issue; and (c) A table of authorities relied upon. § 1025.23 Motions. (a) Presentation and disposition. (b) Written motions. (c) Opposition to motions. (d) Rulings on motions for dismissal. § 1025.24 Interlocutory appeals. (a) General. (b) Exceptions. (i) Requires the production of records claimed to be confidential; (ii) Requires the testimony of a supervisory official of the Commission other than one especially knowledgeable of the facts of the matter in adjudication; (iii) Excludes an attorney from participation in any proceedings pursuant to § 1025.42(b); (iv) Denies or unduly limits a petition for intervention pursuant to the provisions of § 1025.17. (2) Procedure for interlocutory appeals. Within ten (10) days of issuance of a ruling other than one ordering the production of records claimed to be confidential, any party may petition the Commission to consider an interlocutory appeal of a ruling in the categories enumerated above. The petition shall not exceed fifteen (15) pages. Any other party may file a response to the petition within ten (10) days of its service except where the order appealed from requires the production of records claimed to be confidential. The response shall not exceed fifteen (15) pages. The Commission shall decide the petition or may request such further briefing or oral presentation as it deems necessary. (3) If the Presiding Officer orders the production of records claimed to be confidential a petition for interlocutory appeal shall be filed within five (5) days of the entry of the order. Any opposition to the petition shall be filed within five (5) days of service of the petition. The order of the Presiding Officer shall be automatically stayed until five (5) days following the date of entry of the order to allow an affected party the opportunity to file a petition with the Commission for an interlocutory appeal pursuant to § 1025.24(b)(2). If an affected party files a petition with the Commission pursuant to § 1025.24(b)(2) within the 5-day period, the stay of the Presiding Officer's order is automatically extended until the Commission decides the petition. (4) Interlocutory appeals from all other rulings Grounds. (ii) Form. (c) Proceedings not stayed. § 1025.25 Summary decisions and orders. (a) Motion. (b) Response to motion. (c) Grounds. (d) Legal effect. (e) Case not fully adjudicated on motion. § 1025.26 Settlements. (a) Availability. (b) Form. in camera (c) Contents. (1) An admission of all jurisdictional facts; (2) An express waiver of further procedural steps and of all rights to seek judicial review or otherwise to contest the validity of the Commission order; (3) Provisions that the allegations of the complaint are resolved by the consent agreement and order; (4) A description of the alleged hazard, noncompliance, or violation; (5) If appropriate, a listing of the acts or practices from which the respondent shall refrain; and (6) If appropriate, a detailed statement of the corrective action(s) which the respondent shall undertake. In proceedings arising under Section 15 of the Consumer Product Safety Act, 15 U.S.C. 2064, this statement shall contain all the elements of a “Corrective Action Plan,” as outlined in the Commission's Interpretation, Policy, and Procedure for Substantial Product Hazards, 16 CFR part 1115. (d) Transmittal. (e) Stay of proceedings. (f) Commission ruling. (g) Commission rejection. (h) Effect of rejected offer. Subpart D—Discovery, Compulsory Process § 1025.31 General provisions governing discovery. (a) Applicability. (b) Discovery methods. (1) Written interrogatories; (2) Requests for production of documents or things; (3) Requests for admission; or (4) Depositions upon oral examination. Unless the Presiding Officer otherwise orders under paragraph (d) of this section, the frequency of use of these methods is not limited. (c) Scope of discovery. (1) In general. (2) Privilege. (3) Hearing preparation: materials. (4) Hearing preparation: experts. (i)(A) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, to state the substance of the facts and opinions to which the expert is expected to testify, and to provide a summary of the grounds for each opinion. (B) Upon motion, the Presiding Officer may order further discovery by other means upon a showing of substantial cause and may exercise discretion to impose such conditions, if any, as are appropriate in the case. (ii) A party may 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 trial and who is not expected to be called as a witness at trial only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (iii) The Presiding Officer may require as a condition of discovery that the party seeking discovery pay the expert a reasonable fee, but not more than the maximum specified in 5 U.S.C. 3109 for the time spent in responding to discovery. (d) Protective orders. (1) That the discovery shall not be had; (2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) That the discovery shall be had only by a method of discovery other than that selected by the party seeking discovery; (4) That certain matters shall not be inquired into or that the scope of discovery shall be limited to certain matters; (5) That discovery shall be conducted with no one present except persons designated by the Presiding Officer; (6) That a trade secret or other confidential research, development, or commercial information shall not be disclosed or shall be disclosed only in a designated way or only to designated parties; and (7) That responses to discovery shall be placed in camera If a motion for a protective order is denied in whole or in part, the Presiding Officer may, on such terms or conditions as are appropriate, order that any party provide or permit discovery. (e) Sequence and timing of discovery. (f) Supplementation of responses. (g) Completion of discovery. (h) Service and filing of discovery. (i) Control of discovery. § 1025.32 Written interrogatories to parties. (a) Availability; procedures for use. (b) Procedures for response. (c) Scope of interrogatories. (d) Option to produce business records. § 1025.33 Production of documents and things. (a) Scope. (1) To produce and permit the party making the request, or someone acting on behalf of that party, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and any other data compilation from which information can be obtained, translated, if necessary, by the party in possession through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of § 1025.31(c) and which are in the possession, custody, or control of the party upon whom the request is served, or (2) To permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection (including photographing), or sampling any designated object or operation within the scope of § 1025.31(c). (b) Procedure for request. (c) Procedure for response. (d) Persons not parties. § 1025.34 Requests for admission. (a) Procedure for request. (b) Procedure for response. (c) Effect of admission. § 1025.35 Depositions upon oral examination. (a) When depositions may be taken. (b) Notice of deposition Deposition of a party. (i) The time and place for the taking of the deposition; (ii) The name and address of each person to be deposed, if known, or if the name is not known, a general description sufficient to identify him/her; and (iii) The subject matter of the expected testimony. If a subpoena duces tecum (2) Deposition of a non-party. (3) Opposition to notice. (c) Persons before whom depositions may be taken. (d) Taking of deposition Examination. (2) Motion to terminate or limit examination. (3) Participation by parties not present. (e) Transcription and filing of depositions Transcription. (2) Certification and filing. (f) Costs of deposition. (g) Failure to attend or to serve subpoena; expenses. (h) Deposition to preserve testimony When available. (2) Procedure. (i) Use of depositions. (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. (2) The deposition of anyone who at the time of the taking of the deposition was an officer, director, managing agent, or person otherwise designated to testify on behalf of a public or private corporation, partnership or unincorporated association or governmental entity which is a party to the proceedings, may be used by any adverse party for any purpose. (3) The deposition of a witness may be used by any party for any purpose if the Presiding Officer finds: (i) That the witness is dead; or (ii) That the witness is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or (iii) That the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (iv) That the party offering the depostion has been unable to procure the attendance of the witness by subpoena; or (v) That such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard for the importance of presenting the testimony of witnesses orally during the hearing, to allow the deposition to be used. (4) If only part of a deposition is offered in evidence by a party, any other party may move to introduce any other part of the deposition. § 1025.36 Motions to compel discovery. If a party fails to respond to discovery, in whole or in part, the party seeking discovery may move within twenty (20) days for an order compelling an answer, or compelling inspection or production of documents, or otherwise compelling discovery. For purposes of this section, an evasive or incomplete response is to be treated as a failure to respond. When taking depositions, the discovering party shall continue the examination to the extent possible with respect to other areas of inquiry before moving to compel discovery. § 1025.37 Sanctions for failure to comply with discovery orders. If a party fails to obey an order to provide or permit discovery, the Presiding Officer may take such action as is just, including but not limited to the following: (a) Infer that the admission, testimony, document or other evidence would have been adverse to the party; (b) Order that for the purposes of the proceedings, the matters regarding which the order was made or any other designated facts shall be taken to be established in accordance with the claim of the party obtaining the order; (c) Order that the party withholding discovery not introduce into evidence or otherwise rely, in support of any claim or defense, upon the documents or other evidence withheld; (d) Order that the party withholding discovery not introduce into evidence, or otherwise use at the hearing, information obtained in discovery; (e) Order that the party withholding discovery forfeit its right to object to introduction and use of secondary evidence to show what the withheld admission, testimony, documents, or other evidence would have shown; (f) Order that a pleading, or part of a pleading, or a motion or other submission by the party, concerning which the order was issued, be stricken, or that decision on the pleadings be rendered against the party, or both; and (g) Exclude the party or representative from the proceedings, in accordance with § 1025.42(b) of these rules. Any such action may be taken by order at any point in the proceedings. § 1025.38 Subpoenas. (a) Availability. (b) Form. duces tecum (c) How obtained Content of application. (2) Procedure for application. ex parte, (d) Issuance of a subpoena. (e) Service of a subpoena. (f) Return of service. (g) Motion to quash or limit subpoena. (h) Consequences of failure to comply. § 1025.39 Orders requiring witnesses to testify or provide other information and granting immunity. (a) Applicability to Flammable Fabrics Act only. (b) Procedure. (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 that individual's privilege against self-incrimination. (c) Approval of the Attorney General. (d) Issuance of order granting immunity. (e) Sanctions for failure to testify. Subpart E—Hearings § 1025.41 General rules. (a) Public hearings. (b) Prompt completion. (c) Rights of parties. (d) Rights of participants. (e) Rights of witnesses. § 1025.42 Powers and duties of Presiding Officer. (a) General. (1) To administer oaths and affirmations; (2) To compel discovery and to impose appropriate sanctions for failure to make discovery; (3) To rule upon offers of proof and receive relevant, competent, and probative evidence; (4) To regulate the course of the proceedings and the conduct of the parties and their representatives; (5) To hold conferences for simplification of the issues, settlement of the proceedings, or any other proper purposes; (6) To consider and rule, orally or in writing, upon all procedural and other motions appropriate in adjudicative proceedings; (7) To issue Summary Decisions, Initial Decisions, Recommended Decisions, rulings, and orders, as appropriate; (8) To certify questions to the Commission for its determination; and (9) To take any action authorized by these Rules or the provisions of title 5, United States Code, sections 551-559. (b) Exclusion of parties by Presiding Officer. (c) Substitution of Presiding Officer. (d) Interference. (e) Disqualification of Presiding Officer. (2) Whenever, for good and reasonable cause, any party considers the Presiding Officer to be disqualified to preside, or to continue to preside, in any adjudicative proceedings, that party may file with the Secretary a motion to disqualify and remove, supported by affidavit(s) setting forth the alleged grounds for disqualification. A copy of the motion and supporting affidavit(s) shall be served by the Secretary on the Presiding Officer whose removal is sought. The Presiding Officer shall have ten (10) days to respond in writing to such motion. However, the motion shall not stay the proceedings unless otherwise ordered by the Presiding Officer or the Commission. If the Presiding Officer does not disqualify himself/herself, the Commission shall determine the validity of the grounds alleged, either directly or on the report of another Presiding Officer appointed to conduct a hearing for that purpose and, in the event of disqualification, shall take appropriate action by assigning another Presiding Officer or requesting loan of another Administrative Law Judge through the U.S. Office of Personnel Management. § 1025.43 Evidence. (a) Applicability of Federal Rules of Evidence. (b) Burden of proof. (2) Any party who is the proponent of a legal or factual proposition shall have the burden of sustaining that proposition. (c) Admissibility. (d) Official notice Definition. (i) Generally known within the jurisdiction of the Commission or (ii) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (2) Method of taking official notice. (e) [Reserved] (f) Offer of proof. § 1025.44 Expert witnesses. (a) Definition. (b) Method of presenting testimony of expert witness. (c) Cross-examination and redirect examination of expert witness. (d) Failure to file or exchange written testimony. § 1025.45 In camera (a) Definition. In camera (b) In camera treatment of documents and testimony. in camera. in camera (1) A description of the documents or testimony; (2) The reasons for granting in camera (3) The terms and conditions imposed by the Presiding Official, if any, limiting access to or use of the in camera (c) Access and disclosure to parties. in camera (2) Any party desiring access to, or disclosure of, in camera in camera (d) Segregation of in camera materials. In camera (e) Public release of in camera materials. In camera in camera (f) Reference to in camera materials. in camera in camera In Camera in camera in camera in camera § 1025.46 Proposed findings, conclusions, and order. Within a reasonable time after the closing of the record and receipt of the transcript, all parties and participants may file, simultaneously unless otherwise directed by the Presiding Officer, post-hearing briefs, including proposed findings of fact and conclusions of law, as well as a proposed order. The Presiding Officer shall establish a date certain for the filing of the briefs, which shall not exceed fifty (50) days after the closing of the record except in unusual circumstances. The briefs shall be in writing and shall be served upon all parties. The briefs of all parties shall contain adequate references to the record and authorities relied upon. Replies shall be filed within fifteen (15) days of the date for the filing of briefs unless otherwise established by the Presiding Officer. The parties and participants may waive either or both submissions. § 1025.47 Record. (a) Reporting and transcription. (b) Corrections. § 1025.48 Official docket. The official docket in any adjudicatory proceedings shall be maintained in the Office of the Secretary and be available for public inspection during normal business hours of the Commission. § 1025.49 Fees. (a) Fees for deponents and witnesses. (b) Fees for production of records. Subpart F—Decision § 1025.51 Initial decision. (a) When filed. (b) Content. (1) Findings and conclusions, as well as the reasons or bases for such findings and conclusions, upon the material questions of fact, material issues of law, or discretion presented on the record, and should, where practicable, be accompanied by specific page citations to the record and to legal and other materials relied upon; and (2) An appropriate order. (c) By whom made. (d) Reopening of proceedings by Presiding Officer; termination of jurisdiction. (2) Except for the correction of clerical errors, or where the proceeding is reopened by an order under paragraph (d)(1) of this section, the jurisdiction of the Presiding Officer is terminated upon the filing of the Initial Decision, unless and until such time as the matter may be remanded to the Presiding Officer by the Commission. § 1025.52 Adoption of initial decision. The Initial Decision and Order shall become the Final Decision and Order of the Commission forty (40) days after issuance unless an appeal is noted and perfected or unless review is ordered by the Commission. Upon the expiration of the fortieth day, the Secretary shall prepare, sign, and enter an order adopting the Initial Decision and Order, unless otherwise directed by the Commission. § 1025.53 Appeal from initial decision. (a) Who may file notice of intention. (b) Appeal brief. (1) A subject index of the matters in the brief, with page references, and a table of cases (alphabetically arranged), textbooks, statutes, and other material cited, with page references thereto; (2) A concise statement of the case; (3) A statement containing the reasons why the party believes the Initial Decision is incorrect; (4) The argument, presenting clearly the points of fact and law relied upon to support each reason why the Initial Decision is incorrect, with specific page references to the record and the legal or other material relied upon; and (5) A proposed form of order for the Commission's consideration in lieu of the order contained in the Initial Decision. (c) Answering brief. (d) Participant's brief. (e) Cross appeal. (f) Reply brief. (g) Oral argument. § 1025.54 Review of initial decision in absence of appeal. The Commission may, by order, review a case not otherwise appealed by a party. Should the Commission so order, the parties shall, and participants may, file briefs in accordance with § 1025.53, except that the Commission may, in its discretion, establish a different briefing schedule in its order. The Commission shall issue its order within forty (40) days after issuance of the Initial Decision. The order shall set forth the issues which the Commission will review and may make provision for the filing of briefs. If the filing of briefs is scheduled by the Commission, the order shall designate which party or parties shall file the initial brief and which party or parties may thereafter file an answering brief, or the order may designate the simultaneous filing of briefs by the parties. § 1025.55 Final decision on appeal or review. (a) Consideration of record. (b) Rendering of final decision. (c) Except as otherwise ordered by the Commission, the Commission shall endeavor to file its Decision within ninety (90) days after the filing of all briefs or after receipt of transcript of the oral argument, whichever is later. § 1025.56 Reconsideration. Within twenty (20) days after issuance of a Final Decision and Order by the Commission, any party may file a petition for reconsideration of such decision or order, setting forth the relief desired and the grounds in support of the petition. Any petition filed under this section must be confined to new questions raised by the decision or order upon which the petitioner had no previous opportunity to argue. Any party desiring to oppose such a petition shall file an opposition to the petition within ten (10) days after sevice of the petition. The filing of a petition for reconsideration shall not stay the effective date of the Final Decision and Order or toll the running of any statutory time period affecting the Decision or Order unless specifically ordered by the Commission. § 1025.57 Effective date of order. (a) Orders in proceedings arising under the Consumer Product Safety Act. (b) Orders in proceedings arising under the Flammable Fabrics Act Consent orders. (2) Litigated orders. (c) Consequences of failure to comply with effective order. § 1025.58 Reopening of proceedings. (a) General. (b) Exception. (c) Commission-originated reopening Before effective date of order. (2) After effective date of order. (d) Petition for reopening. (e) Hearings Unopposed. (2) Factual issues. (f) Commission disposition. Subpart G—Appearances, Standards of Conduct § 1025.61 Who may make appearances. A party or participant may appear in person, or by a duly authorized officer, partner, regular employee, or other agent of the party or participant, or by counsel or other duly qualified representative, in accordance with § 1025.65. § 1025.62 Authority for representation. Any individual acting in a representative capacity in any adjudicative proceedings may be required by the Presiding Officer or the Commission to show his/her authority to act in such capacity. A regular employee of a party who appears on behalf of the party may be required by the Presiding Officer or the Commission to show his/her authority to so appear. § 1025.63 Written appearances. (a) Filing. (b) Withdrawal. § 1025.64 Attorneys. Any attorney at law who is admitted to practice before any United States court or before the highest court of any State, the District of Columbia, or any territory or commonwealth of the United States, may practice before the Commission. An attorney's own representation that he/she is in good standing before any of such courts shall be sufficient proof thereof, unless otherwise directed by the Presiding Officer or the Commission. § 1025.65 Persons not attorneys. (a) Filing and approval of proof of qualifications. (b) Exception. § 1025.66 Qualifications and standards of conduct. (a) Good faith transactions. (b) Exclusion of parties, participants, or their representatives. ex parte (c) Exclusions from the record. (d) Appeal by excluded party. § 1025.67 Restrictions as to former members and employees. (a) Generally. (b) Participation as witness. (c) Procedure for requesting authorization to appear. (1) The nature and extent of the former member's or employee's participation in, knowledge of, and connection with the proceedings or investigation during his/her service with the Commission; (2) Whether the files of the proceedings or investigation came to his/her attention; (3) Whether he/she was employed in the directorate, division, or other organizational unit within the Commission in which the proceedings or investigation is or has been pending; (4) Whether he/she worked directly or in close association with Commission personnel assigned to the proceedings or investigation and, if so, with whom and in what capacity; and (5) Whether during service with the Commission, he/she was engaged in any matter concerning the person involved in the proceedings or investigation. (d) Denial of request to appear. (1) Where it appears that the former member or employee, during service with the Commission, participated personally and substantially in the proceedings or investigation; or (2) Where the Commission is not satisfied that the appearance or participation will not involve any actual or apparent impropriety; or (3) In any case which would result in a violation of title 18, United States Code, section 207. § 1025.68 Prohibited communications. (a) Applicability. (b) Definitions Decision-maker. (i) The Commissioners and their staffs; (ii) The Administrative Law Judges and their staffs; (iii) The General Counsel and his/her staff, unless otherwise designated by the General Counsel. (2) Ex parte communication. (ii) Any oral communication concerning a matter in adjudication which is made to a decision-maker by any person subject to these Rules, without advance notice to all parties to the proceedings and opportunity for them to be present. (c) Prohibited ex parte communications. ex parte ex parte (d) Permissible ex parte communications. (1) Ex parte (2) Any staff communication concerning judicial review or judicial enforcement in any matter pending before or decided by the Commission. (e) Procedures for handling prohibited ex parte communication Prohibited written ex parte communication. ex parte ex parte ex parte (2) Prohibited oral ex parte communication. ex parte (ii) In the event of a prohibited oral ex parte (A) The title and docket number of the proceedings; (B) The name and address of the person making the communication and his/her relationship (if any) to the parties and/or participants to the proceedings; (C) The date and time of the communication, its duration, and the circumstances (e.g., telephone call, personal interview, etc.) under which it was made; (D) A brief statement of the substance of the matters discussed; and (E) Whether the person making the communication persisted in doing so after being advised that the communication was prohibited. (3) Filing. (4) Service on parties. (5) Service on maker. ex parte (f) Effect of ex parte communications. ex parte (g) Sanctions. ex parte Subpart H—Implementation of the Equal Access to Justice Act in Adjudicative Proceedings With the Commission Authority: Equal Access to Justice Act, Pub. L. 96-481, 94 Stat. 2325, 5 U.S.C. 504 and the Administrative Procedure Act, 5 U.S.C. 551 et seq. Source: 47 FR 25513, June 14, 1982, unless otherwise noted. § 1025.70 General provisions. (a) Purpose of this rule. (b) When the EAJA applies. (c) Proceedings covered. See (2) The Commission may designate a proceeding not listed in paragraph (c)(1) of this section as an adversary adjudicative proceeding for purposes of the EAJA by so stating in an order initiating the proceeding or designating the matter for hearing. The Commission's failure to designate a proceeding as an adversary adjudicative proceeding shall not preclude the filing of an application by a party who believes the proceeding is covered by the EAJA. Whether the proceeding is covered will then be an issue for resolution in proceedings on the application. (3) If a proceeding includes both matters covered by the EAJA and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues. (d) Eligibility of applicants. (2) The types of eligible applicants are: (i) Individuals with a net worth of not more than $1 million; (ii) Sole owners of unincorporated businesses who have a net worth of not more than $5 million including both personal and business interests, and not more than 500 employees; (iii) Charitable or other tax-exempt organizations described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) which have not more than 500 employees; (iv) Any other partnership, corporation, association, or public or private organization with a net worth of not more than $5 million and which have not more than 500 employees. (3) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated. (4) An applicant who owns an unincorporated business will be considered as an “individual” rather than as a “sole owner of an unincorporated business” if the issues on which the applicant prevails are related primarily to personal interests rather than to business interests. (5) The number of employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant's direction and control. Part-time employees shall be included on a proportional basis. (6) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. For this purpose, affiliate (7) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible is not itself eligible for an award. (8) An applicant that represents himself/herself regardless of whether he is licensed to practice law may be awarded all such expenses and fees available to other prevailing eligible parties. See (e) Standards for awards. (2) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust. (f) Allowable fees and expenses. (2) No award for the fee of an attorney or agent under these rules may exceed $75 per hour. No award to compensate an expert witness may exceed the highest rate at which the Commission is authorized to pay expert witnesses. However, an award may also include the reasonable expenses of the attorney, agent, or witness as a separate item, if the attorney, agent or witness ordinarily charges clients separately for such expenses. (3) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the presiding officer shall consider the following: (i) If the attorney, agent or witness is in private practice, his or her customary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services; (ii) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services; (iii) The time actually spent in the representation of the applicant; (iv) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and (v) Such other factors as may bear on the value of the services provided. (4) The reasonable cost of any study, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant's case. (5) Fees may be awarded to eligible applicants only for service performed after the issuance of a complaint and the commencement of the adjudicative proceeding in accordance with 16 CFR 1025.11(a). (g) Rulemaking on maximum rates for attorney fees. (2) Any person may file with the Commission a petition for rulemaking to increase the maximum rate for attorney fees, in accordance with the Administrative Procedure Act, 5 U.S.C. 553(e). The petition should identify the rate the petitioner believes the Commission should establish and the types of proceedings in which the rate should be used. The petition should also explain fully the reasons why the higher rate is warranted. The Commission will respond to the petition within a reasonable time after it is filed, by initiating a rulemaking proceeding, denying the petition, or taking other appropriate action. (h) Presiding officer. § 1025.71 Information required from applicant. (a) Contents of application. (2) The application shall also include a verified statement that the applicant's net worth does not exceed $1 million (if an individual) or $5 million (for all other applicants, including their affiliates). However, an applicant may omit this statement if it attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant's belief that it qualifies under such section. (3) The application shall state the amount of fees and expenses for which an award is sought. (4) The application may also include any other matters that the applicant wishes the Commission to consider in determining whether and in what amount an award should be made. (5) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the information provided in the application is true and correct. (b) Net worth exhibit; confidential treatment. (2) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit or to public disclosure of any other information submitted, and believes there are legal grounds for withholding it from disclosure, may move to have that information kept confidential and excluded from public disclosure in accordance with § 1025.45 of the Commission rules for in camera (3) Section 6(a)(2) of the Consumer Product Safety Act, 15 U.S.C. 2055(a)(2), provides that certain information which contains or relates to a trade secret or other matter referred to in section 1905 of title 18, United States Code, or subject to 5 U.S.C. 552(b)(4) shall not be disclosed. This prohibition is an Exemption 3 statute under the Freedom of Information Act, 5 U.S.C. 552(b)(3). Material submitted as part of an application for which in camera see (c) Documentation of fees and expenses. (d) When an application may be filed. (2) If review or reconsideration is sought or taken of a decision as to which an applicant believes it has prevailed, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy. (3) If review or reconsideration is sought or taken of a decision as to which an applicant believes it has prevailed, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy. (4) For purposes of this subpart, final disposition means the later of: (i) The date on which an initial decision by the presiding officer becomes final, see (ii) The date on which the Commission issues a final decision ( See (iii) The date on which the Commission issues an order disposing of any petitions for reconsideration of the Commission's final order in the proceeding ( See (iv) Issuance of a final order or any other final resolution of a proceeding, such as a settlement or voluntary dismissal, which is not subject to a petition for reconsideration. (e) Where an application must be filed. § 1025.72 Procedures for considering applications. (a) Filing and service of documents. (b) Answer to application. (2) If complaint counsel and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted by the presiding officer upon request by complaint counsel and the applicant. (3) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of Commission counsel's position. If the answer is based on any alleged facts not already in the record of the proceeding, complaint counsel shall include with the answer either supporting affidavits or a request for further proceedings under paragraph (f) of this section. (c) Reply. (d) Comments by other parties. (e) Settlement. See (f) Further proceedings. (2) A request that the presiding officer order further proceedings under this paragraph shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues. (g) Initial decision. (h) Agency review. (2) If neither the applicant nor Commission complaint counsel seeks review and the Commission does not take review on its own initiative, the initial decision on the application shall become a final decision of the Commission 30 days after it is issued. (3) If an appeal from or review of an initial decision under this subpart is taken, the Commission shall endeavor to issue a decision on the application within 90 days after the filing of all briefs or after receipt of transcripts of the oral argument, whichever is later, or remand the application to the presiding officer for further proceedings. (i) Judicial review. (j) Payment of award. Appendix I to Part 1025—Suggested Form of Final Prehearing Order Case Caption A final prehearing conference was held in this matter, pursuant to Rule 21 of the Commission's Rules of Practice for Adjudicative Proceedings (16 CFR 1025.21), on the ______ day of ______, 19__, at __ o'clock, _ stm. Counsel appeared as follows: For the Commission staff: For the Respondent(s): Others: 1. Nature of Action and Jurisdiction. This is an action for __________ and the jurisdiction of the Commission is invoked under United States Code, Title______, Section ______ and under the Code of Federal Regulations, Title ____, Section ____. The jurisdiction of the Commission is (not) disputed. The question of jurisdiction was decided as follows: 2. Stipulations and Statements. The following stipulation(s) and statement(s) were submitted, attached to, and made a part of this order: (a) A comprehensive written stipulation or statement of all uncontested facts; (b) A concise summary of the ultimate facts as claimed by each party. (Complaint Counsel must set forth the claimed facts, specifically; for example, if a violation is claimed, Complaint Counsel must assert specifically the acts of violation complained of; each respondent must reply with equal clarity and detail.) (c) Written stipulation(s) or statement(s) setting forth the qualifications of the expert witnesses to be called by each party; (d) Written list(s) of the witnesses whom each party will may (e) An agreed statement of the contested issues of fact and of law, or separate statements by each party of any contested issues of fact and law not agreed to; (f) A list of all depositions to be read into evidence and statements of any objections thereto; (g) A list and brief description of any charts, graphs, models, schematic diagrams, and similar objects that will be used in opening statements or closing arguments but will not be offered in evidence. If any other such objects are to be used by any party, those objects will be submitted to opposing counsel at least three days prior to the hearing. If there is then any objection to their use, the dispute will be submitted to the Presiding Officer at least one day prior to the hearing; (h) Written waivers of claims or defenses which have been abandoned by the parties. The foregoing were modified at the pretrial conference as follows: (To be completed at the conference itself. If none, recite “none”.) 3. Complaint Counsel's Evidence. 3.1 The following exhibits were offered by Complaint Counsel, received in evidence, and marked as follows: (Identification number and brief description of each exhibit) The authenticity of these exhibits has been stipulated. 3.2 The following exhibits were offered by Complaint Counsel and marked for identification. There was reserved to the respondent(s) (and party intervenors) the right to object to their receipt in evidence on the grounds stated: (Identification number and brief description of each exhibit. State briefly ground of objection, e.g., competency, relevancy, materiality) 4. Respondent's Evidence. 4.1 The following exhibits were offered by the respondent(s), received in evidence, and marked as herein indicated: (Identification number and brief description of each exhibit) The authenticity of these exhibits has been stipulated. 4.2 The following exhibits were offered by the respondent(s) and marked for identification. There was reserved to Complaint Counsel (and party intervenors) the right to object to their receipt in evidence on the grounds stated: (Identification number and brief description of each exhibit. State briefly ground of objection, e.g., competency, relevancy, materiality) 5. Party Intervenor's Evidence. 5.1 The following exhibits were offered by the party intervenor(s), received in evidence, and marked as herein indicated: (Identification number and brief description of each exhibit) The authenticity of these exhibits has been stipulated. 5.2 The following exhibits were offered by the party intervenor(s) and marked for identification. There was reserved to Complaint Counsel and respondent(s) the right to object to their receipt in evidence on the grounds stated: (Identification number and brief description of each exhibit. State briefly ground of objection, e.g., competency, relevancy, materiality) Note: If any other exhibits are to be offered by any party, such exhibits will be submitted to opposing counsel at least ten (10) days prior to hearing, and a supplemental note of evidence filed into this record. 6. Additional Actions. The following additional action(s) were taken: (Amendments to pleadings, agreements of the parties, disposition of motions, separation of issues of liability and remedy, etc., if necessary) 7. Limitations and Reservations. 7.1 Each of the parties has the right to further supplement the list of witnesses not later than ten (10) days prior to commencement of the hearing by furnishing opposing counsel with the name and address of the witness and general subject matter of his/her testimony and by filing a supplement to this pretrial order. Thereafter, additional witnesses may be added only after application to the Presiding Officer, for good cause shown. 7.2 Rebuttal witnesses not listed in the exhibits to this order may be called only if the necessity of their testimony could not reasonably be foreseen ten (10) days prior to trial. If it appears to counsel at any time before trial that such rebuttal witnesses will be called, notice will immediately be given to opposing counsel and the Presiding Officer. 7.3 The probable length of hearing is __ days. The hearing will commence on the ______ day of ______, 19__, at __ o'clock _ m. at ____. 7.4 Prehearing briefs will be filed not later than 5:00 p.m. on __________ (Insert date not later than ten (10) days prior to the hearing.) All anticipated legal questions, including those relating to the admissibility of evidence, must be covered by prehearing briefs. This prehearing order has been formulated after a conference at which counsel for the respective parties appeared. Reasonable opportunity has been afforded counsel for corrections or additions prior to signing. It will control the course of the hearing, and it may not be amended except by consent of the parties and the Presiding Officer, or by order of the Presiding Officer to prevent manifest injustice. Presiding Officer. Dated: Approved as to Form and Substance Date: Complaint Counsel. Attorney for Respondent(s) * Attorney for Intervenors * Note: Where intervenors appear pursuant to § 1025.17 of these Rules, the prehearing order may be suitably modified; the initial page may be modified to reflect the intervention.