49 CFR Part 511 — Adjudicative Procedures

PART 511—ADJUDICATIVE PROCEDURES Authority: 15 U.S.C. 2002; delegation of authority at 49 CFR 1.50. Source: 45 FR 81578, Dec. 11, 1980, unless otherwise noted. Subpart A—Scope of Rules; Nature of Adjudicative Proceedings, Definitions § 511.1 Scope of the rules. This part establishes rules of practice and procedure for adjudicative proceedings conducted pursuant to section 508(a)(2) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. Pub. L. 94-163, 89 Stat. 911, section 2008(a)(2)), which are required by statute to be determined on the record after opportunity for a public hearing. § 511.2 Nature of adjudicative proceedings. Adjudicative proceedings shall be conducted in accordance with title 5, U.S.C., sections 551 through 559 and this part. It is the policy of the agency that adjudicative proceedings shall be conducted expeditiously and with due regard to the rights and interests of all persons affected, and to the public interest. Therefore, the presiding officer and all parties shall make every effort at each stage of a proceeding to avoid unnecessary delay. § 511.3 Definitions. (a) As used in this part: (1) The term application ex parte (2) The term NHTSA (3) The term Administrator (4) The term Complaint Counsel (5) The term motion (6) The term party (7) The term person (8) The term petition (9) The term Presiding Officer (10) The term Respondent (11) The term Office of Hearings (12) The term staff (13) The term Chief Administrative Law Judge (14) The term Docket Section [45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15782, May 3, 1988] Subpart B—Pleadings; Form; Execution; Service of Documents § 511.11 Commencement of proceedings. (a) Notice of institution of an enforcement proceeding. (b) Form and content of complaint. (1) Recital of the legal authority for instituting the proceeding, with specific designation of the statutory provisions involved in each allegation. (2) Identification of each respondent. (3) A clear and concise statement of the charges, sufficient to inform each respondent with reasonable definiteness of the factual basis of the allegations of violation. A list and summary of documentary evidence supporting the charges shall be attached. (4) A statement of the civil penalty which the Complaint Counsel believes is in the public interest, or which is required by law. In the case of civil penalties assessed for violations of section 507(3) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 2007(3)), the amount of such penalty shall be calculated from the time of the alleged violation. In the case of civil penalties assessed for violations of section 507 (1) or (2) of that Act, any monetary credits available to offset those civil penalties shall be specified. (5) The right of the respondent to a hearing on the alleged violations. (c) Notice to the public. Federal Register Federal Register § 511.12 Answer. (a) Time for filing. (b) Content of answer. (1) Request for hearing. (2) Contested allegations. (i) Specific admission or denial of each allegation in the complaint. If the respondent is without knowledge or information sufficient to form a belief as to the truth of an allegation, respondent shall so state. Such a statement shall have the effect of a denial. Denials shall fairly meet the substance of the allegations denied. Allegations not thus answered shall be deemed to have been admitted. (ii) A concise statement of the factual and/or legal defenses to each allegation of the complaint. (3) Admitted allegations. (c) Default. § 511.13 Amendments and supplemental pleadings. Whenever determination of a controversy on the merits will be facilitated thereby, the Presiding Officer upon motion, may allow appropriate amendments and supplemental pleadings which do not unduly broaden the issues in the proceeding or cause undue delay. § 511.14 Form and filing of documents. (a) Filing. (b) Caption. (c) Copies. (d) Signature. (2) The act of signing a document constitutes a representation by the signer that the signer has read it; 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. [45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15782, May 3, 1988] § 511.15 Time. (a) Computation. (b) Additional time after service by mail. (c) Extensions. § 511.16 Service. (a) Mandatory service. (b) Service of complaint, ruling, order, decision, or subpoena. (1) By registered or certified mail. (2) By delivery to an individual. (3) By delivery to an address. (c) Service of documents with prescribed response periods. (d) Service of other documents. (e) Service on a representative. (f) Certificate of service. I hereby certify that I have this day served the foregoing document upon all parties of record in this proceeding by mailing, postage prepaid (or by delivering in person) a copy to each such party. Dated at ____________________ this ____ day of ____________________, 19____. (Signature) For (g) Date of service. [45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15783, May 3, 1988] § 511.17 Public participation. Participant Status. [53 FR 15783, May 3, 1988] § 511.18 Joinder of proceedings. Two or more matters which have been scheduled for adjudicative proceedings, and which involve one or more common questions of law or fact, may be consolidated for the purpose of hearing, appeal or the Administrator's review. A motion for consolidation for the purpose of hearing may be filed with the Presiding Officer by any party to such proceedings not later than thirty (30) days prior to the hearing. A motion for consolidation for the purpose of appeal may be filed by any party to such proceedings within 10 days after issuance of the Initial Decision. A motion to consolidate shall be served upon all parties to all proceedings whose joinder is contemplated. The proceedings may be consolidated where to do so would tend to avoid unnecessary costs or delay. Such consolidation may also be ordered upon the initiative of the Presiding Officer or the Administrator, as appropriate. The Presiding Officer may order separate hearings on any issue where to do so would promote economy or convenience or would avoid prejudice to a party. Subpart C—Prehearing Procedures; Motions; Interlocutory Appeals; Summary Judgment; Settlement § 511.21 Prehearing conferences. (a) When held. Federal Register (i) Motions for consolidation of proceedings; (ii) Identification, simplification and clarification of the issues; (iii) Necessity or desirability of amending the pleadings; (iv) Stipulations and admissions of fact and of the content and authenticity of documents; (v) Oppositions to notices of oral examination; (vi) Motions for protective orders to limit or modify discovery; (vii) Issuance of subpoenas to compel the appearance of witnesses and the production of documents; (viii) Limitation of the number of witnesses, particularly the avoidance of duplicate expert witnesses; (ix) Matters of which official notice will be taken and matters which may be resolved by reliance upon findings of other Federal agencies; and (x) Other matters which may expedite the conduct of the hearing. § 511.22 Prehearing briefs. Not later ten (10) days prior to the hearing, the parties shall, except when ordered otherwise by the Presiding Officer in unusual circumstances, simultaneously serve and file prehearing briefs, which shall 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 argument in support of the party's contentions with respect to each issue; and (c) a table of authorities with a designation by asterisk of the principal authorities relied upon. § 511.23 Motions. (a) Presentations and dispositions. (b) Written motions. (c) Responses. (d) Rulings on motions for dismissal. § 511.24 Interlocutory appeals. (a) General. (b) Exceptions Interlocutory appeals to Administrator. (i) Requires the production or disclosure of records claimed to be confidential; (ii) Requires the testimony of a supervisory official of the agency other than one especially cognizant of the facts of the matter in adjudication; (iii) Excludes an attorney from participation in a proceeding pursuant to § 511.42(b). (2) Procedures for interlocutory appeals. (3) Interlocutory appeals from all other rulings Grounds. (ii) Form. (c) Proceedings not stayed. § 511.25 Summary decision and order. (a) Motion. (b) Response to motion. (c) Grounds. (d) Legal effect. (e) Case not fully adjudicated on motion. § 511.26 Settlement. (a) Applicability. (b) Availability. (c) Form. (d) 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 order; (3) A description of the alleged noncompliance, or violation; (4) Provisions to the effect that the allegations of the complaint are resolved by the proposed consent agreement and order; (5) A listing of the acts or practices from which the respondent shall refrain; (6) A detailed statement of the corrective action(s) which the respondent shall excute and the civil penalty, if any, that respondent shall pay. (e) Transmittal. (f) Stay of proceedings. (g) Administrator's ruling. (h) Rejection. (i) Effect of rejected offer. [45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15783, May 3, 1988] Subpart D—Discovery; Compulsory Process § 511.31 General provisions governing discovery. (a) Applicability. (b) Discovery methods. (c) Scope of discovery. (1) In general. (2) Exception. (3) Hearing preparation: Experts. (d) Protective orders. 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 just, 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. [45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15783, May 3, 1988] § 511.32 Written interrogatories to parties. (a) Availability; procedures for use. (b) Procedures for response. (c) Scope of interrogatories. (d) Option to produce business records. § 511.33 Production of documents and things. (a) Scope. (b) Procedure for request. (c) Procedure for response. § 511.34 Requests for admission. (a) Procedure for request. (b) Procedure for response. The answer shall specifically admit or deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission. When good faith requires that a party qualify an answer or deny only a part of the matter as to which an admission is requested, the party shall specify the portion that is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny, unless the party states that he or she has made reasonable inquiry and that the information known or readily available to him or her is insufficient to enable him or her to admit or deny. A party who considers that a matter as to which an admission has been requested presents a genuine issue for hearing may not, on that ground alone, object to the request but may deny the matter or set forth reasons why the party cannot admit or deny it. The party who has requested an admission may move to determine the sufficiency of the answer or objection thereto in accordance with § 511.36. If the Presiding Officer determines that an answer does not comply with the requirements of this section, he or she may order that the matter be deemed admitted or that an amended answer be served. (c) Effect of admission. § 511.35 Testimony upon oral examination. (a) When testimony may be taken. (b) Notice of oral examination Examination of a party. duces tecum (2) Examination of a nonparty. (3) Opposition to notice. (c) Persons before whom examinations may be taken. (d) Procedure Examination. (2) Motion to terminate or limit examination. (3) Participation by parties not present. (e) Transcription and filing of testimony Transcription. (2) Certification and filing. (f) Costs of examination. (g) Failure to attend or to serve subpoena; expenses. (h) Examination to preserve testimony When available. (2) Procedure. (i) Use of testimony obtained under this section. (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 a party or of a person who at the time of the taking of his testimony was an officer, director or managing agent of a party may be used against that party for any purpose. (3) The deposition of a witness, whether or not a party, 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 at a greater distance than 100 miles from the place of the hearing, or 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 deposition has been unable to procure the attendance of the witness by subpoena; or (v) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. (4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts. [45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15783, May 3, 1988] § 511.36 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 subsection, an evasive or incomplete response is to be treated as a failure to respond. If the motion is granted, the Presiding Officer shall issue an order compelling discovery. If the motion is denied in whole or in part, the Presiding Officer may make such protective order as he or she would have been empowered to make on a motion pursuant to § 511.31(d). When making oral examinations, the discovering party shall continue the examination to the extent possible with respect to other areas of inquiry before moving to compel discovery. § 511.37 Sanctions for failure to comply with order. 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 proceeding, 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 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; (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 proceedings, in accordance with § 511.42(b). Any such action may be taken by order at any point in the proceedings. § 511.38 Subpoenas. (a) Availability. (b) Form. (c) How obtained Content of application. (2) Procedure of 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. [45 FR 81578, Dec. 11, 1980, as amended at 53 FR 26261, July 12, 1988] § 511.39 Orders requiring witnesses to testify or provide other information and granting immunity. (a) A party who desires the issuance of an order requiring a witness to testify or provide other information upon being granted immunity from prosecution under title 18, U.S.C., section 6002, may make a motion to that effect. The motion shall be made and ruled on in accordance with § 511.22, and shall include a showing: (1) That the testimony or other information sought from a witness or prospective witness 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. (b) If the Presiding Officer determines that the witness' testimony appears necessary and that the privilege against self-incrimination may be invoked, he or she may certify to the Administrator a request that he or she obtain the approval of the Attorney General of the United States for the issuance of an order granting immunity. (c) Upon application to and approval of the Attorney General of the United States, and after the witness has invoked the privilege against self-incrimination, the Presiding Officer shall issue the order granting immunity unless he or she determines that the privilege was improperly invoked. (d) Failure of a witness to testify after a grant of immunity or after a denial of the issuance of an order granting immunity shall result in the imposition of appropriate sanctions as provided in § 511.37. Subpart E—Hearings § 511.41 General rules. (a) Public hearings. Federal Register. (b) Expedition. (c) Rights of parties. (d) Rights of participants. (e) Rights of witnesses. § 511.42 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 issue subpoenas; (4) To rule upon offers of proof and receive relevant and probative evidence; (5) To regulate the course of the hearings and the conduct of the parties and their representatives therein; (6) To hold conferences for simplification of the issues, settlement of the proceedings, or any other proper purposes; (7) To consider and rule, orally or in writing, upon all procedural and other motions appropriate in an adjudicative proceeding; (8) To issue initial decisions, rulings, and orders, as appropriate; (9) To certify questions to the Administrator for determination; and (10) To take any action authorized in this part or in conformance with the provisions of title 5, U.S.C., sections 551 through 559. (b) Exclusion of parties by Presiding Officer. (c) Substitution of Presiding Officer. (d) Interference. (e) Disqualification of Presiding Officer. (2) Whenever, for any reason, any party shall deem the Presiding Officer to be disqualified to preside, or to continue to preside, in a particular proceeding, that party may file with the Chief Administrative Law Judge 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 Chief Administrative Law Judge on the Presiding Officer whose removal is sought. The Presiding Officer shall have ten (10) days from service to reply in writing. Such motion shall not stay the proceeding unless otherwise ordered by the Presiding Officer or the Administrator. If the Presiding Officer does not disqualify himself or herself, the Administrator will 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 shall in the event of disqualification take appropriate action, by assigning another Presiding Officer or requesting assignment of another Administrative Law Judge through the Office of Hearings. [45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15783, May 3, 1988] § 511.43 Evidence. (a) Applicability of Federal Rules of Evidence. (b) Burden of proof. (2) Any party who is the proponent of a legal and/or factual proposition shall have the burden of sustaining the proposition. (c) Presumptions. (d) Admissibility. (e) Official notice Definition. (2) Method of taking official notice. (3) Opportunity to challenge. (f) Objections and exceptions. (g) Offer of proof. § 511.44 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 and/or to exchange written statement. § 511.45 In camera materials. (a) Definition. In camera in camera (b) In camera treatment of documents and testimony. in camera. in camera (1) A description of the documents and/or testimony; (2) The reasons for granting in camera (c) Access and disclosure to parties. in camera in camera (i) The in camera (ii) The in camera (2) Any party desiring access to and/or disclosure of the in camera in camera (d) Segregation of materials. In camera (e) Public release of materials. In camera in camera (f) Reference to materials. in camera in camera IN CAMERA in camera in camera in camera § 511.46 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, simultaneously, file post-hearing briefs, including proposed findings of fact, conclusions of law and a proposed order, together with reasons therefore. The Presiding Officer shall establish a date certain for the filing of the briefs, which shall not exceed 45 days after the close of the record except in unusual circumstances. The briefs shall be in writing, shall be served upon all parties, and shall contain adequate references to the record and authorities relied on. 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. § 511.47 Record. (a) Reporting and transcription. (b) Corrections. § 511.48 Official docket. (a) The official docket in adjudicatory proceedings will be maintained in the Docket Section, Office of the Secretary, Room 4107, 400 Seventh Street SW., Washington, DC 20590, and will be available for inspection during normal working hours (9:00 a.m.-5:00 p.m.) Monday through Friday. (b) Fees for production or disclosure of records contained in the official docket shall be levied as prescribed in the Department of Transportation's regulations on Public Availability of Information (49 CFR part 7). [53 FR 15783, May 3, 1988] § 511.49 Fees. (a) Witnesses. (b) Responsibility. Subpart F—Decision § 511.51 Initial decision. (a) When filed. (b) Content. (1) Findings and conclusions, as well as the reasons or bases therefor, 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. (2) An appropriate order. (c) By whom made. (d) Reopening of proceeding by presiding officer; termination of jurisdiction. (2) Except for the correction of clerical errors, the jurisdiction of the Presiding Officer is terminated upon the filing of the Initial Decision, unless and until the proceeding is remanded to the Presiding Officer by the Administrator. § 511.52 Adoption of initial decision. The Initial Decision and Order shall become the Final Decision and Order of the Administrator forty (40) days after issuance unless an appeal is noted and perfected or unless review is ordered by the Administrator. Upon the expiration of the fortieth day, the Executive Secretary shall prepare, sign and enter an order adopting the Initial Decision and Order. § 511.53 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 specification of the position urged; (4) The argument, presenting clearly the points of fact and law relied upon in support of the position on each question, with specific page references to the record and the legal or other material relied upon; and (5) A proposed form of order for the Administrator'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. § 511.54 Review of initial decision in absence of appeal. The Administrator may, by order, review a case not otherwise appealed by a party. Thereupon the parties shall and participants may file briefs in accordance with § 511.53(b), (c), (d), (e), and (f) except that the Administrator may, in his or her discretion, establish a different briefing schedule in his or her order. Any such order shall issue within forty (40) days of issuance of the Initial Decision. The order shall set forth the issues which the Administrator will review. § 511.55 Final decision on appeal or review. (a) Upon appeal from or review of an Initial Decision, the Administrator shall consider such parts of the record as are cited or as may be necessary to resolve the issues presented and, in addition, shall, to the extent necessary or desirable, exercise all the powers which he or she could have exercised if he or she had made the Initial Decision. (b) In rendering his or her decision, the Administrator shall adopt, modify, or set aside the findings, conclusions, and order contained in the Initial Decision, and shall include in his or her Final Decision a statement of the reasons or bases for his or her action. The Administrator shall issue an order reflecting his or her Final Decision. § 511.56 Reconsideration. Within twenty (20) days after issuance of a Final Decision and Order, any party may file with the Administrator a petition for reconsideration of such decision or order, setting forth the relief desired and the grounds in support thereof. Any party desiring to oppose such a petition shall file an answer thereto within ten (10) days after service of the petition. The filing of a petition for reconsideration shall not stay the effective date of the Decision and Order or toll the running of any statutory time period affecting the decision or order unless specifically so ordered by the Administrator. § 511.57 Effective date of order. (a) Consent orders. (b) Litigated orders. Subpart G—Settlement Procedure in Cases of Violation of Average Fuel Economy Standards § 511.61 Purpose. This subpart establishes the procedures and requirements necessary to obtain a settlement of a case of violation of section 507 (1) or (2) of the Motor Vehicle Information and Cost Savings Act, as amended, Pub. L. 94-163, 89 Stat. 911 (15 U.S.C. section 2007(1)(2)). No settlement of such cases may be had except as in accordance with this subpart. § 511.62 Definitions. Average fuel economy standard Insolvency Settlement § 511.63 Criteria for settlement. Settlement of a case of violation of an average fuel economy standard is discretionary with the Administrator. The Administrator will consider settlement only to the extent: (a) Necessary to prevent the insolvency or bankruptcy of the person seeking settlement, or (b) That the violation of the average fuel economy standard resulted, as shown by the person seeking settlement, from an act of God, a strike, or fire, or (c) That modification of a civil penalty assessed under this part is necessary to prevent lessening of competition, as determined and as certified by the Federal Trade Commission under section 508(b)(4) of the Motor Vehicle Information and Cost Savings Act, Pub. L. 94-163, 89 Stat. 911 (15 U.S.C. section 2008(b)(4)). § 511.64 Petitions for settlement; timing, contents. (a) A petition seeking settlement under this subpart must be filed within 30 days after the issuance of a final order assessing a civil penalty for a violation of an average fuel economy standard. (b)(1) A petition for settlement should be sufficient to allow the Administrator to determine that at least one of the criteria set out in § 511.63 is satisfied, and that the public interest would be served by settlement. (2) A petition asserting that settlement is necessary to prevent bankruptcy or insolvency must include: (i) Copies of all pertinent financial records, auditor's reports, and documents that show that the imposition of a civil penalty would cause insolvency, or would cause a company to do an act of bankruptcy, and (ii) A payment schedule that would allow the petitioner to pay a civil penalty without resulting in insolvency or an act of bankruptcy. (3) A petition asserting that the violation of the average fuel economy standard was caused by an act of God, fire, or strike must describe corrective and ameliorative steps taken to mitigate the effects of the act of God, fire, or strike. (4) A petition based on a certification by the Federal Trade Commission that modification of the civil penalty assessed is necessary to prevent a substantial lessening of competition must include a certified copy of: (i) The application to the Federal Trade Commission for a certification under section 508(b)(4) of the Motor Vehicle Information and Cost Savings Act, Pub. L. 94-163, 89 Stat. 911 (15 U.S.C. 2008(b)(4)), and materials supporting the application. (ii) The administrative record of any Federal Trade Commission proceeding held in regard to the application, and (iii) The certification by the Federal Trade Commission. (c) It is the policy of the National Highway Traffic Safety Administration that unconditional settlements of violations of average fuel economy standards are not in the public interest, and absent special and extraordinary circumstances, will not be allowed. All petitions for settlement shall contain a section proposing conditions for settlement. Conditions for settlement can be specific acts designed to lead to the reduction of automotive fuel consumption, which the petitioner is not otherwise required to perform pursuant to any statute, regulation, or administrative or judicial order, such as sponsoring public education programs, advertising, accelerating commercial application of technology, accelerating technology development programs, or making public the results of privately performed studies, surveys, or research activities. § 511.65 Public comment. Notice and opportunity for comment are provided to the public in regard to settlements under this part. Subject to § 511.66, notice of receipt of a petition for settlement is published in the Federal Register, § 511.66 Confidential business information. The Administrator shall have authority to segregate from the public docket and to protect from public view information in support of a petition for settlement which has been determined to be confidential business information. The provisions of 15 U.S.C. 2005(d) pertaining to discretionary release by the Administrator of and to limited disclosure of information determined to be confidential business information shall apply to this section. § 511.67 Settlement order. If, in accordance with this subpart, the Administrator allows a settlement of a case of violation of an average fuel economy standard, an order of settlement shall be issued, setting out the terms of the settlement, and containing a brief discussion of the factors underlying the exercise of the Administrator's discretion in allowing the settlement, including a discussion of comments received under § 511.65. If the Administrator rejects a petition for settlement, the Administrator shall give written notice of the rejection and the reasons for the rejection to the parties and the Presiding Officer. [53 FR 15783, May 3, 1988] Subpart H—Appearances; Standards of Conduct § 511.71 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 this party or participant, or by or with counsel or other duly qualified representative, in any proceeding under this part. § 511.72 Authority for representation. Any individual acting in a representative capacity in any adjudicative proceeding may be required by the Presiding Officer or the Administrator to show his or her authority to act in such capacity. A regular employee of a party who appears on behalf of the party shall be required by the Presiding Officer or the Administrator to show his or her authority to so appear. § 511.73 Written appearances. (a) Any person who appears in a proceeding shall file a written notice of appearance with the Executive Secretary or deliver a written notice of appearance to the reporter at the hearing, stating for whom the appearance is made and the name, address, and telephone number (including area code) of the person making the appearance and the date of the commencement of the appearance. The written appearance shall be made a part of the record. (b) Any person who has previously appeared in a proceeding may withdraw his or her appearance by filing a written notice of withdrawal of appearance with the Docket Section. The notice of withdrawal shall state the name, address, and telephone number (including area code) of the person withdrawing the appearance, for whom the appearance was made, and the effective date of the withdrawal of the appearance, and such notice of withdrawal shall be filed within five (5) days of the effective date of the withdrawal of the appearance. [45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15783, May 3, 1988] § 511.74 Attorneys. An attorney at law who is admitted to practice before the Federal courts 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 NHTSA. An attorney's own representation that he or she is in good standing before any of such courts shall be sufficient proof thereof, unless otherwise ordered by the Presiding Officer or the Administrator. § 511.75 Persons not attorneys. (a) Any person who is not an attorney at law may be admitted to appear in an adjudicative proceeding if that person files proof to the satisfaction of the Presiding Officer that he or she possesses the necessary legal, technical or other qualifications to render valuable service in the proceeding and is otherwise competent to advise and assist in the presentation of matters in the proceedings. An application by a person not an attorney at law to appear in a proceeding shall be submitted in writing to the Docket Section, not later than thirty (30) days prior to the hearing in the proceedings. The application shall set forth the applicant's qualifications to appear in the proceedings. (b) No person who is not an attorney at law and whose application has not been approved shall be permitted to appear in the Administration's proceedings. However, this provision shall not apply to any person who appears before the NHTSA on his or her own behalf or on behalf of any corporation, partnership, or association of which the person is a partner, officer, or regular employee. [45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15784, May 3, 1988] § 511.76 Qualifications and standards of conduct. (a) The NHTSA expects all persons appearing in proceedings before it to act with integrity, with respect, and in an ethical manner. Business transacted before and with the NHTSA shall be in good faith. (b) To maintain orderly proceedings, the Presiding Officer or the Administrator, as appropriate under this part, may exclude parties, participants, and their representatives for refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, failure to act in good faith, or violation of the prohibition against certain ex parte communications. The Presiding Officer may, in addition to the above sanctions, deny access to additional in camera (c) An excluded party, participant, or representative thereof may petition the Administrator to entertain an interlocutory appeal in accordance with § 511.24. If, after such appeal, the representative of a party or participant, is excluded, the hearing shall, at the request of the party or participant, be suspended for a reasonable time so that the party or participant may obtain another representative. § 511.77 Restrictions as to former members and employees. The postemployee restrictions applicable to former Administrators and NHTSA employees, as set forth in 18 U.S.C. 207, shall govern the activities of former Administrators and NHTSA employees in matters connected with their former duties and responsibilities. § 511.78 Prohibited communications. (a) Applicability. (b) Definitions. (i) The Administrator, (ii) The Administrative Law Judges; (2) “Ex parte communication” means: (i) Any written communication other than a request for a status report on the proceeding made to a decisionmaker by any person other than a decisionmaker which is not served on all parties, (ii) Any oral communication other than a request for a status report on the proceeding made to a decisionmaker by any person other than a decisionmaker without advance notice to the parties to the proceeding and opportunity for them to be present. (c) Prohibited ex parte communications. (d) Permissible ex parte communications. (1) Ex parte communications authorized by statute or by this part. (2) Any staff communication concerning judicial review or judicial enforcement in any matter pending before or decided by the Administrator. (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. (ii) In the event of a prohibited oral ex parte (A) The title and docket number of the proceeding; (B) The name and address of the person making the communication and his/her relationship (if any) to the parties to the proceeding; (C) The date and time of the communication, its duration, and the circumstances (telephone call, personal interview, etc.) under which it was made; (D) A brief statement of the substance of the matters discussed; (E) Whether the person making the communication persisted in doing so after being advised that the communication was prohibited. (3) All communications and statements forwarded to the Docket Section under this section shall be placed in the public file which shall be associated with, but not made a part of, the record of the proceedings to which the communication or statement pertains. (4) Service on parties. (5) Service on maker. ex parte (f) Effect of ex parte communications. (g) Sanctions. [45 FR 81578, Dec. 11, 1980, as amended at 53 FR 15784, May 3, 1988] Appendix I to Part 511—Final Prehearing Order Case Caption Final Prehearing Order A prehearing conference was held in this matter pursuant to Rule 21 of the Administration's Rules of Practice for Adjudicative Proceedings, on the ____________________ day of ____________________, 19____, at ____ o'clock __ M. Counsel appeared as follows: For the Administration staff: For the Respondent(s): Others: 1. NATURE OF ACTION AND JURISDICTION. This is an action for ____________________ and the jurisdiction of the Administration is involved under Section ____ of Title ____ U.S.C. The jurisdiction of the Administration is (not) disputed. The questions of jurisdiction was decided as follows: 2. STIPULATIONS AND STATEMENTS. The following stipulations and statements 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 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 stipulations or statements setting forth the qualifications of the expert witnesses to be called by each party; (d) A written list or lists of the witnesses whom each party will call, a written list or lists of the additional witnesses whom each party may (e) An agreed statement of the contested issues of fact and of law, and/or separate statements by each party or 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, they will be submitted to opposing counsel at least three days prior to 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 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 the Complaint Counsel and marked for identification. There was reserved to the respondent(s) and party intervenors, if any, 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, if any, 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. ADDITIONAL ACTIONS. The following additional action was taken: [Amendments to pleadings, agreements of the parties, disposition of motions, separation of issues of liability and remedy, etc., if necessary] 6. LIMITATIONS AND RESERVATIONS. 6.1 Each of the parties has the right to further supplement the list of witnesses not later than ten (10) days prior to trial by furnishing opposing counsel with the name and address of the witness and general subject matter of his or her testimony and filing a supplement to this pretrial order. Thereafter additional witnesses may be added only after application to the Presiding Officer, for good cause shown. 6.2 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. 6.3 The probable length of hearing is ________ days. The hearings will be commenced on the ____ day of __________, 19____, at ____ o'clock __ M. at (location) __________. 6.4 Prehearing briefs will be filed not later than 5:00 p.m. on ________. (Insert date not later than ten (10) days prior to 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's Name) (Presiding Officer's Title) APPROVED AS TO FORM AND SUBSTANCE Date: __________. Complaint Counsel. Attorney for Respondent(s). Note: Where intervenors appear pursuant to § 511.17 the prehearing order may be suitably modified; the initial page may be modified to reflect the intervention.

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