Rules of Practice for Adjudicative Proceedings

AGENCY:

Consumer Product Safety Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The United States Consumer Product Safety Commission (“Commission,” “CPSC,” or “we”) is issuing this notice of proposed rulemaking (“NPR”) to update the Commission's Rules of Practice for Adjudicative Proceedings, (“Rules of Practice” or “Rules”). We are proposing to modernize the Rules of Practice to reflect changes in civil and administrative litigation since adoption of the Rules in 1980. Specifically, we propose changes to the Rules pertaining to discovery, electronic filing, the use of electronically stored information (“ESI”), and updates to the Federal Rules of Civil Procedure (“Federal Rules”), upon which our Rules are based. We also propose to update requirements for pleadings, motions, and motions for summary decisions, clarifications on the computation of time, and clarification on when amendments or supplemental pleadings require Commission approval. Additionally, we propose allowing a Presiding Officer to exercise discretion to avoid unnecessary delay or wasteful discovery and to consolidate cases in their entirety, or partially, for any purpose that serves the ends of justice. We also propose to set deadlines for the issuance of an Initial or Recommended Decision. Finally, we propose to remove outdated references to the Equal Access to Justice Act. We believe the proposed Rules will increase the efficiency of discovery, minimize the potential for delay in adjudicative proceedings, and ensure that, to the extent possible, Commission adjudicative proceedings address and resolve crucial issues of consumer product safety in a fair and impartial manner. This NPR seeks comments on the proposed changes to the Rules.

DATES:

Submit comments by June 13, 2016.

ADDRESSES:

You may submit comments, identified by Docket No. CPSC 2016-0006, electronically or in writing, by any of the following methods:

Electronic Submissions: Submit electronic comments to the Federal eRulemaking Portal at: http:// www.regulations.gov. Follow the instructions for submitting comments. The Commission does not accept comments submitted by electronic mail (email), except through www.regulations.gov. The Commission encourages you to submit electronic comments through the Federal eRulemaking Portal.

Written Submissions: Submit written submissions by mail/hand delivery/courier to: Office of the Secretariat, Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923.

Instructions: All submissions received must include the agency name and docket number for this proposed rulemaking. All comments received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to: http://www.regulations.gov. Do not submit confidential business information, trade secret information, or other sensitive or protected information that you do not want to be available to the public. If furnished at all, such information should be submitted in writing.

Docket: For access to the docket to read background documents or comments received, go to: http://www.regulations.gov,, and insert the docket number CPSC-2016-0006, into the “Search” box, and follow the prompts.

FOR FURTHER INFORMATION CONTACT:

Mary B. Murphy, Assistant General Counsel, U.S. Consumer Product Safety Commission, 4330 E. West Highway, Bethesda, MD 20814-4408; email: mmurphy@cpsc.gov telephone: (301) 504-7809.

SUPPLEMENTARY INFORMATION:

The Commission is proposing to amend the agency's Rules of Practice for Adjudicative Proceedings. 16 CFR part 1025. The proposed rule reflects changes in civil and administrative litigation since adoption of the Rules in 1980.

Table of Contents

I. Background and Statutory Authority

II. Reasons for Revision of the Rules

III. Section-by-Section Analysis of the Proposed Revisions of the Rules of Practice

IV. Environmental Issues

V. Regulatory Flexibility

VI. Paperwork Reduction

VII. Preemption

VIII. Effective Date

IX. Requests for Comments

I. Background and Statutory Authority

a. Commission Adjudicative Proceedings

The Consumer Product Safety Act (15 U.S.C. 2064(c), (d), (f); 2076(b)) (“CPSA”), the Federal Hazardous Substances Act (id. 1274) (“FHSA”), the Flammable Fabrics Act (id. 1192, 1194, 1197(b)) (“FFA”), the Poison Prevention Packaging Act (id. 1473(c)) (“PPPA”), and the Virginia Graeme Baker Pool and Spa Act, (id. 8003) (“VGBA”) authorize the Commission to initiate and conduct adjudicative proceedings related to the safety of certain consumer products, and, based on the Commission's findings, issue orders or take other action to protect the public. Under the requirements of the cited statutes, such adjudicative proceedings must be determined on an administrative record after opportunity for a public hearing.

b. Procedural Rules Requirement

Under the Administrative Procedure Act (“APA”) (5 U.S.C. 500 et seq.), adjudications mandated by statute to be determined on the record after opportunity for a public hearing are subject to certain procedural requirements. These requirements include notice of the time, place and nature of the hearing, information about the legal authority under which the hearing is to be held, and information on the matters of fact and law asserted. (Id. 554(a)-(b)). The Commission adopted the Rules of Practice to govern adjudicative hearings under its enabling statutes and other administrative proceedings, as determined by the Commission.

c. History of the Rules of Practice

The Rules of Practice were first proposed by the Commission in 1974, for use on an interim basis. (39 FR 26848, July 23, 1974). In 1977, the Commission revised the Rules of Practice, publishing them for use on an interim basis and for public comment. (42 FR 31431 (interim rules); 42 FR 36818 (issuing correction). In 1980, after considering public comments and the Commission's experiences with the existing interim rules, the Commission adopted the Rules of Practice. (45 FR 29215, May 1, 1980). The Commission last amended the Rules of Practice in 1982 to make them applicable to hearings required by section 15 of the FHSA (47 FR 46845, Oct. 21, 1982).

On May 12, 2015, the Commission voted to direct staff to present for Commission consideration a revision of the Rules of Practice, with the goal of streamlining future adjudications and aligning the Rules of Practice with the Federal Rules of Civil Procedure.

II. Reasons for Proposed Revision of the Rules

a. Alignment With the Federal Rules of Civil Procedure

Since the 1980s, when the Commission last amended the Rules of Practice, the Commission's model, the Federal Rules, have been substantially revised. Among other things, these changes altered the pretrial process, providing new discovery standards intended to increase the speed and efficiency of litigation.

Prominent among these changes were detailed rules requiring parties to cooperate in pre-discovery and pre-trial planning. For example, the Federal Rules now require an affirmative pre-discovery disclosure by each party of information, documents, ESI, and other evidence that the party may use to support its claims or defenses. The Federal Rules also require participation by parties in pre-discovery and pretrial conferences, with the aim of focusing the issues to be adjudicated. Along with these changes have come new limits on formal discovery tools, including interrogatories, document requests, and depositions. In addition to proposing that our Rules of Practice follow the scope of discovery stated in Rule 26 of the Federal Rules, we are proposing to follow, with certain changes, the Federal Rules' procedures on mandatory disclosures of information and the Federal Rules' limits on formal discovery tools, by adhering to the Federal Rules on interrogatories, requests for documents and things, depositions, and requests for admission. We believe that changing our Rules of Practice to require affirmative pre-discovery disclosure, mandate participation in pre-discovery and prehearing conferences, and impose limits on wasteful discovery practices will streamline the adjudicative process, and thereby, advance our goal of establishing expeditious and fair proceedings.

Recent changes in the Federal Rules have also placed substantial focus on the discretionary powers of Presiding Officers. Under these rules, the judge or magistrate may limit or expand discovery, and on motion, or on his or her own initiative, may tailor the pace of the adjudication and the scope and length of discovery based on the issues in each case. We are proposing to follow, with appropriate changes, the Federal Rules' emphasis on empowering the Presiding Officer to use his or her discretion to control the pace and progress of discovery. In our proposed Rules of Practice, the Presiding Officer would be an active participant in the discovery process, with powers to actively manage cases to avoid delays and forestall inefficient or wasteful discovery.

The Federal Rules provide substantial guidance on the discoverability and use of ESI because, increasingly, information is stored in digital form. Our proposed Rules of Practice would largely follow the Federal Rules' guidance on the discoverability of electronic evidence.

b. Increasing the Efficiency of Adjudicative Proceedings

In addition to aligning our Rules of Practice with the Federal Rules, the changes we propose would increase the efficiency and decrease the burden of preparing for and litigating administrative hearings. For example, we propose to update our Rules of Practice on consolidating cases to allow the Presiding Officer to consolidate cases, fully or partially, for discovery and/or for hearing, on a party's motion, or at the Presiding Officer's discretion.

Additional proposed changes would adapt the Rules of Practice to the general needs of administrative litigation, based on the experiences of Commission staff in adjudicative proceedings. In each case, we propose to emphasize the discretion of the Presiding Officer to facilitate quick, fair, and efficient discovery and trial of adjudicative matters. Although we would vest significant discretion in the Presiding Officer, we would, nevertheless, seek to impose timelines on the adjudicative proceeding and deadlines on the Presiding Officer, requiring initial decisions to be made within set time frames.

c. Updating CPSC's Rules of Practice To Conform to Current Administrative Practice

Another important reason for updating our Rules of Practice is to clarify the process for amending complaints authorized by the Commission. We propose to update our Rules of Practice to provide clearer guidance on when amendments require Commission consideration.

We also propose to revise our Rules of Practice to permit electronic filing and service of pleadings and documents and to discourage filing of paper documents. Likewise, we propose to revise the existing requirement that the Commission's Secretariat maintain an official paper file, a practice that is cumbersome and fails to reflect significant technological advancements. We also propose to revise our Rules of Practice regarding service of process to accommodate electronic service of most documents and pleadings and to recognize the use of common carriers in the delivery of paper documents. Likewise, we propose to clarify our Rules of Practice regarding motions for summary decisions, amending that section to follow more closely the Federal Rules.

III. Section-by-Section Analysis of the Proposed Revisions to the Rules of Practice

Subpart A—Scope of Rules, Nature of Adjudicative Proceedings, Definitions

Proposed Changes to Rule § 1025.1 (Scope of Rules)

The proposal would revise § 1025.1, Scope of rules, to clarify that, in addition to adjudicative proceedings related to the CPSA, the FHSA, and the FFA, the Commission also is empowered to conduct adjudications under the PPPA and the VGBA. Specifically, our proposed revision would clarify that the Commission may conduct adjudicative proceedings under Section 4(c) of the PPPA and Section 1404 of the VGBA. We propose to add appropriate references to these statutes and make additional minor changes for clarity in our Rules of Practice.

In addition, the proposal would revise § 1025.1 to remove the existing statement that the Rules of Practice govern adjudicative proceedings for the assessment of civil penalties under section 20(a) of the CPSA. Pursuant to a statutory change, such actions are now litigated in U.S. District Court, rather than before the Commission. Therefore, the current language in our Rules of Practice is unnecessary and inaccurate, as is a statement on the limited scope of discovery in civil penalty cases, which we also propose to remove.

We also propose new language in § 1025.1 to establish the Commission's health and safety mission as a critical concern the Presiding Officer must take into account when establishing deadlines and managing cases. When a matter fails to proceed in a timely manner, it not only results in increased costs and uncertainty for the parties and participants, it can also undermine the agency's statutory obligation to protect the public against unreasonable risks of injury and death associated with consumer products. The Commission expects that the Presiding Officer shall, whenever possible, and in in the interest of protecting public health and safety, expedite proceedings by setting shorter time limitations than the maximum limits imposed by the rules, with the goal of issuing an Initial Decision within 1 year from the date of the complaint.

As part of our goal of aligning the Rules of Practice with the updated Federal Rules, we also propose to add a statement to § 1025.1, indicating that, except where stated otherwise, parties shall follow the Federal Rules on certain discovery matters. We believe that following the Federal Rules on discovery matters would streamline the discovery process, and thereby introduce increased efficiencies to advance our goal of avoiding unnecessary delay. Through this change, we would redefine the scope of discovery to encompass Rule 26 of the Federal Rules, and would follow generally, with some stated exceptions discussed below, the Federal Rules' procedures on pretrial discovery, including interrogatories (Fed. R. Civ. P. 33); production of documents, electronically stored information, and tangible things (Fed. R. Civ. P. 34); requests for admission (Fed. R. Civ. P. 36); and depositions (Fed. R. Civ. P. 30-32). We would not follow the Federal Rules on subpoenas, which by statute, requires Commission approval. We also propose additional minor and non-substantive changes to the Rules of Practice for clarity.

Proposed Changes to § 1025.3 (Definitions)

One of our goals in revising our Rules of Practice is to update the Rules of Practice to reflect current litigation practices and advances in technology. To recognize that ESI, i.e., information created, manipulated, communicated, stored, and best utilized in digital form, or requiring the use of computer software and hardware, has become a significant part of civil discovery, we propose in new § 1025.3(e) to follow the definition of ESI in the Federal Rules. We believe this definition would provide clarity and allow parties and participants to be guided by the developing case law and scholarship on electronic discovery.

We also propose several additional non-substantive changes, including a new § 1025.3(f) that would reference our rule on ex parte communications. We further propose to add a new § 1025.3(g) to clarify that references to the Federal Rules throughout this proposed rule refer to the Federal Rules of Civil Procedure. Because we propose additional paragraphs, we would also re-designate the paragraphs in this section to reflect these changes. Finally, we propose a clarified definition of CPSC's “Secretariat” in current § 1025.3(n).

Subpart B—Pleadings, Form, Execution, Service of Documents

Proposed Changes to § 1025.11 (Commencement of Proceedings)

Section 1025.11 sets out requirements for the filing of a complaint in an adjudicative proceeding. In § 1025.11(a), we propose revisions to reflect organizational changes within the Commission since adoption of the current Rules of Practice. Complaint Counsel would be authorized to sign a complaint following Commission approval, rather than the Assistant Executive Director for Compliance and Enforcement, as the current rule requires.

Currently, § 1025.11(b)(3) requires that a complaint contain “[a] list and summary of documentary evidence supporting the charges.” We propose eliminating this requirement given the mandatory disclosures of evidence set forth in Federal Rule 26(a)(1)(A), which we propose following as part of § 1025.31, General provisions governing discovery, discussed below.

We propose adding a new § 1025.11(d) to clarify that a Commission action to obtain a preliminary injunction from a federal district court pursuant to 15 U.S.C. 2064(g) shall not serve as the basis to stay proceedings under these rules. In light of the extensive time frame for resolving matters in adjudicative proceedings, it is the Commission's strong expectation that if the respondent fails to agree to stop sale and distribution of a product which the Commission has reason to believe presents a substantial product hazard, Commission staff will, within a reasonable amount of time following the commencement of proceedings under this part 1025, apply to a district court of the United States for the issuance of a preliminary injunction (pursuant to 15 U.S.C. 2064(g)) to restrain the distribution in commerce of such product pending the completion the adjudicative proceedings. For this reason, and in furtherance of its mission to protect public health and safety, the Commission strongly urges the Presiding Officer to, whenever practicable, shorten the time limitations imposed by these rules and endeavor to issue an Initial Decision as soon as possible.

We also propose several additional minor and non-substantive changes in grammar throughout this paragraph.

Proposed Changes to § 1025.13 (Amendments and Supplemental Pleadings)

Section 1025.13, titled, Amendments and supplemental pleadings, currently states that the Presiding Officer may allow appropriate amendments and supplemental pleadings which do not unduly broaden the issues in the proceedings or cause undue delay. When this section was initially proposed in 1977, commenters expressed concern that granting such broad discretion risked “usurping the Commission's function” to serve as the sole source of administrative litigation seeking to compel recall of consumer products. 45 FR 29 206-207 (May 1, 1980). At the time, stating that the Rules “provide adequate procedures for the parties to argue their respective positions and an adequate framework for the exercise of the broad discretion vested in the Presiding Officer,” the Commission concluded that, under § 1025.13, “neither the Presiding Officer nor the Commission staff is usurping the Commission function.” 45 FR 29208. We now believe it may be helpful to provide additional clarity.

The Commission proposes to amend § 1025.13 to require that the Presiding Officer refer to the Commission any amendment that would (1) have the effect of adding to or removing from the litigation any party or count, (2) fall outside the scope of an authorized complaint, or (3) broaden staff's authority under a complaint.

Proposed Changes to § 1025.14 (Form and Filing of Documents)

As an initial matter, we are proposing to revise the title of this section to Form and filing of pleadings and other documents to clarify that the requirements of this section pertain to pleadings, as well as other documents. In § 1025.14(a), we propose that all pleadings and documents shall be filed electronically with the Secretariat and the Presiding Officer, unless the Presiding Officer orders otherwise. We propose this change because the rule, as written, is outdated and does not reflect current practice for filing pleadings and evidence electronically, which has become the norm in most state and federal courts. Moreover, the current rule requires the Office of the Secretary to maintain the official file, in paper format, access to which is limited by the operational hours of the Commission. Thus, our proposed change would not only reflect current technological advances, but the change also would expand public access to the official file. The proposed rule would, however, allow the Presiding Officer discretion to permit exceptions to the electronic filing requirement so that paper documents may be filed if the Presiding Officer so orders.

To emphasize our preference for electronic filing, we propose to omit existing language stating that documents “may be filed in person or by mail.” We also propose changes, consistent with our proposal on electronic filing, establishing the filing date for documents. Electronically filed documents would be deemed filed on the date of the electronic filing; however, recognizing the broad discretion afforded the Presiding Officer, we propose adding language stating that the Presiding Officer may allow alternative methods of filing, by order, and that such order shall state the applicable date on which such pleadings or documents are deemed filed.

New language in proposed § 1025.14(c) would also eliminate our current requirement that three copies of pleadings be filed, a superfluous requirement in an era where digital copies are created easily. Under our proposed change, a single electronic copy must be filed with the Secretariat and the Presiding Officer; however, we propose to add language that acknowledges that the Presiding Officer may order paper filings.

In § 1025.14(d), we would require that the original of each document that is filed electronically be signed electronically.

Section 1025.14(e) currently anticipates filing of paper documents, and sets standards for such filings. We propose to amend this paragraph to establish requirements that address the electronic filing of pleadings and documents. In § 1025.14(e)(1), we would require an electronic address in addition to a mailing address. Section 1025.14(e)(2) would require filing electronic text documents in a format that uses 12-point font with double spacing and prints on standard letter-sized paper with 1-inch margins. This paragraph also would include the requirement that electronic documents and files that cannot be readily printed, such as large spreadsheets, videos, or photographs, be identified by technical format and also include information on the program or protocol required to review the information. The font, spacing and margin requirements are consistent with Rule 32 of the Federal Rules of Appellate Procedure and Rule 102(a)(b) of the U.S. District Court for the District of Maryland.

We also propose to update § 1025.14(e)(3), which currently states: “[d]ocuments that fail to comply with this section may be returned by the Secretary.” Under the proposed § 1025.14(e)(3), documents that do not meet the filing requirements, or electronic documents that cannot be opened or read, may be returned to the filer by the Secretariat or the Presiding Officer. Lastly, we propose to add language to § 1025.14(e)(3) to allow a Presiding Officer to permit deviation from the form prescribed in this section, for good cause shown, a change that underscores our goal of vesting broad discretion in the Presiding Officer to maximize efficiency and flexibility in how an adjudication proceeds.

Proposed Changes to § 1025.15 (Time)

In § 1025.15(a) we would make several non-substantive changes, including a clarification of the title to make clear that the computation of time refers to days. We also would make clear that “day” means calendar day. We further propose to clarify the existing language to state that the day on which the event triggering the period shall not be included in the calculation of time, but each calendar day thereafter shall; and that if the last day of the time period falls on a weekend or legal holiday, the time period shall be tolled until the next day that is not a weekend or a legal holiday. We also propose to update this section to delete references to specified legal holidays in the existing rule and refer instead to the legal public holidays identified in 5 U.S.C. 6103. This revision would include Martin Luther King, Jr.'s birthday as a holiday and would allow the Rules of Practice to reflect any changes to the list of legal public holidays made in the future.

We further propose to amend § 1025.15(b) to state that whenever a party is required or permitted to do an act within a prescribed period after service of a document and the Presiding Officer permits service by mail, three (3) days shall be added to the prescribed period. This amendment recognizes that while electronic service is preferred, service by mail may be allowed by order of the Presiding Officer; if such service is made by mail, three additional days would be added to the date by which the recipient must perform a subsequent action.

In § 1025.15(c) regarding the extension of time limits, we propose to add language clarifying that initial decisions are decisions issued under § 1025.51 of the Rules of Practice.

We also propose to add a new paragraph (d), which would be titled Stay of proceedings, to clarify that if a stay of proceedings is granted by order of the Presiding Officer or Commission, the time limits specified in these rules shall be automatically tolled during the period while the stay is in effect.

Proposed Changes to § 1025.16 (Service)

We propose several changes to § 1025.16, titled, Service, to reflect current litigation practice and advancements in technology. First, we propose to revise § 1025.16(a) to reflect proposed changes to § 1025.14 that would require the Presiding Officer to maintain the official file for an adjudicative proceeding, if practicable. Second, our proposed § 1025.16(b) would remove subpoenas from the service requirements of this section because we address those requirements in § 1025.28(e), discussed below. We also propose a new § 1025.16(b)(1) that would allow service of a complaint, ruling, petition for interlocutory appeal, order, or decision to be made by electronic means if ordered by the Presiding Officer or by agreement of the parties. We also propose renumbering the subparagraphs of § 1025.16(b) to reflect this addition. Third, in proposed § 1025.16(b)(2), we would permit service by commercial carrier, a change that reflects common practice today.

We also propose in § 1025.16(b)(3) to add “a limited liability company” to the list of corporate entities that may be served, and would add “entity” in the title of the paragraph, for clarity. We propose this change to capture the types of legal entities that exist and may be the subject of an administrative complaint. Finally, we propose to add language in new § 1025.16(b)(4) that, recognizing the preference for electronic service of documents, clarifies the circumstances in which delivery of a document to an address is appropriate.

In § 1025.16(c), we would establish electronic service as the primary mode of service for other documents, unless otherwise ordered by the Presiding Officer or agreed to by the parties. Proposed changes to § 1025.16(e), which provides a form for certificates of service, and § 1025.16(f), which sets the date of service of documents, would provide for electronic filing. Consistent with the establishment of electronic filing, we propose to delete reference in § 1025.16(e) to “the original of every document,” and instead, require that “every document” be accompanied by a certificate of service.

Proposed Changes to § 1025.17 (Intervention)

We are proposing to revise § 1025.17(a), (b), and (c) to identify accurately the Secretariat of the Commission. We also propose to correct a typographical error in § 1025.17(c)(5). We do not intend these changes to be substantive.

Proposed Changes to § 1025.18 (Class Actions)

We are proposing to revise § 1025.18(a)(1) for clarity. The general word “class” would be replaced with the more specific phrase “class of respondents.”

Proposed Changes to § 1025.19 (Joinder of Proceedings)

We propose to revise the title of § 1025.19, currently Joinder of proceedings, to Consolidation of proceedings because the rule, modeled on Rule 19 of the Federal Rules, actually describes consolidation, rather than joinder, a different legal concept. In addition, we propose new § 1025.19(a) to state that the Presiding Officer or the Commission may order the actions involving a common question of law or fact be consolidated for any purpose if the Presiding Officer finds that consolidation will “avoid unnecessary cost or delay.” This would change the current rule, which permits the Presiding Officer or the Commission to consolidate actions only “for the purpose of hearing or Commission review.” This proposed language expands the authority of the Presiding Officer to consolidate actions or portions of actions, as appropriate, a change that is consistent with our goal of assigning broad discretion to the Presiding Officer in the conduct of a proceeding. In practice, the current rule may lead to uncertainty about whether cases may be consolidated for limited purposes, such as discovery, where there are multiple respondents. Under the proposed rule, we make clear that the Presiding Officer may order partial consolidations on issues including, but not limited to, discovery, pretrial procedure, and/or hearing.

We propose to add a new § 1025.19(b), including insertion of a title, for clarity.

Subpart C—Prehearing Procedures, Motions, Interlocutory Appeals, Summary Judgments, Settlements

Proposed Changes to § 1025.21 (Prehearing Conferences)

We propose changes to § 1025.21, Prehearing conferences, to reflect updated procedures in the Federal Rules. Specifically, the proposed changes would require a preliminary meeting of the parties before discovery commences, followed by an initial prehearing conference with the Presiding Officer. We believe these preliminary steps would streamline the process, focus the issues, and advance our goal of achieving a fair and expeditious proceeding.

Under proposed § 1025.21(a), the parties would be required to conduct a preliminary meeting no later than 5 days after the answer is due by the last answering party. At the preliminary meeting, the parties would be directed to discuss the nature and basis of their claims and defenses and the possibilities for settlement or resolution of the case. The proposed change also would require parties to attempt to agree on a proposed discovery plan with a schedule for depositions of fact witnesses, the production of documents and ESI, and the timing of expert discovery. In addition, the proposed revision would require the parties to seek agreement on the scope of electronic discovery, including specified time periods for which electronic information is sought, and agree on the format in which electronic discovery would be produced. The parties also would be required to develop a preliminary time estimate for the evidentiary hearing and to attempt to reach agreement on any other matters to be determined at the prehearing conference. We believe these changes would help expedite the process by setting an earlier deadline for a meeting of the parties and by having the parties resolve issues through mutual agreement.

Under proposed § 1025.21(b), which would be titled, Initial prehearing conference, we propose to modify the issues to be discussed at the prehearing conference to provide a more concise list of issues to be addressed. We believe a tailored agenda for the prehearing conference would maximize efficiency and concentrate focus on major issues. At the initial prehearing conference, the parties, with the guidance of the Presiding Officer, would address a range of issues, including their factual and legal theories, the current status of pending motions or petitions, the date for the evidentiary hearing, steps taken to preserve evidence, and the scope of anticipated discovery and a discovery plan. This list would be for illustrative purposes only and would not be intended to restrict the topics that could be discussed at the prehearing conference under the proposed revision to this section.

In § 1025.21 we also propose to re-designate existing paragraph (b), Public notice, as paragraph (c), and to re-designate existing paragraph (c), Additional conferences, as paragraph (e).

Under proposed § 1025.21(d), the Presiding Officer would be required to enter an order setting forth the results of the initial prehearing conference, establishing a timeline for discovery, motions, and any other appropriate matters. We make this proposal to address the inadequacy of the current requirement that the Presiding Officer issue a prehearing order only after the conclusion of the final prehearing conference, a point late in the process that does not provide sufficient time for potential resolution of issues. We believe that the parties and the Presiding Officer would benefit from establishing a schedule earlier in the proceedings, and we also trust that such a schedule would clarify issues and expedite the proceedings. In addition, in § 1025.21 we propose to re-designate existing paragraph (d), Reporting, as paragraph (h), and make it consistent with our proposal in § 1025.41(a) to exclude Commissioners and their staffs from attending or viewing public hearings prior to the Presiding Officer's initial decision. In paragraph (e), which we propose to re-designate paragraph (g), we would revise the title to be Final prehearing order, for clarity. We also propose to remove references to the format set forth in appendix I, because, as discussed below, we are proposing to delete the appendix.

Under proposed § 1025.21(f), we would require a final prehearing conference as close to the evidentiary hearing as practicable. Under the current rules, it is not clear that such a conference should occur; our proposed change would make clear that such a conference would be mandatory. We believe that such a conference would benefit the parties and the Presiding Officer by focusing the issues before the hearing and resolving final evidentiary matters.

Proposed Changes to § 1025.22 (Prehearing Briefs)

We are proposing to revise this section to require the filing of prehearing briefs, which, under the current Rules, are discretionary. We believe that prehearing briefs should be mandatory because information contained in these briefs would set the necessary framework for the proceeding, clarifying the facts to be proven, the order of proof, and the issues to be decided.

Proposed Changes to § 1025.23 (Motions)

We propose to change this section to clarify rules governing the filing of motions. Under the current rule, all motions, except for disqualification motions, must be addressed to the Presiding Officer. Our proposed revision to § 1025.23(a) would add subpoena applications to the list of motions that would not be addressed to the Presiding Officer. We propose this change because subpoena applications follow distinct procedures set forth in § 1025.38(c), discussed below. In § 1025.23(b), we propose a minor, non-substantive clarification, changing “Secretary” to “Secretariat.” Proposed changes in § 1025.23(c) would include a revision of the title to Response and replies, which reflects our proposed addition regarding reply briefs. We also would expand the time to respond to motions from 10 days to 14 days because, in staff's experience, 10 days does not provide adequate time to respond to a motion, particularly when weekend days are considered in the computation. We believe the addition of 4 days to respond to a motion would provide sufficient time to prepare and submit a response without burdening the process with unnecessary delay. Additionally, this paragraph would expressly permit replies, which currently are available only by leave of the Presiding Officer or the Commission. In our experience, replies are granted routinely, and this change merely recognizes that practice, eliminating the unnecessary step of seeking leave. This paragraph also would permit the Presiding Officer (or the Commission, as the case may be), to authorize the filing of additional briefs, on good cause shown, a change that reflects our belief that the broad authority to administer a proceeding should be vested with the Presiding Officer. We further propose that additional briefs, if permitted, must be filed within 5 days after service of the pleading to which the brief replies.

Proposed Changes to § 1025.24 (Interlocutory Appeals)

Section 1025.24 currently lists four exceptions to the general rule against interlocutory appeals. Proposed § 1025.24 would add a fifth exception, permitting interlocutory appeal where the Presiding Officer grants or denies a motion to amend a complaint under § 1025.13. The proposed revisions to § 1025.13 are intended to reiterate that only the Commission is empowered to issue administrative complaints and that any amendments cannot have that effect without Commission approval. This revision to § 1025.13 is intended to ensure that, if a party believes the Presiding Officer has improperly ruled on such an amendment without Commission approval, that party will have the opportunity to appeal that ruling immediately, without being compelled to litigate a matter in order to obtain a Commission decision on whether or not that party should be in the litigation at all.

We propose to revise § 1025.24(b)(1)(ii) to clarify that nature of the proceeding from which an interlocutory appeal may be filed. We propose to revise § 1025.24(b)(2) to state that the Commission may decide a petition for an interlocutory appeal based on the existing record, or the Commission may request additional briefing and oral presentation. As written, the rule currently imposes an obligation on the Commission to decide the petition or request further briefing. Our proposed change makes clear that such a binary decision is not required and that the Commission has the option of deciding the petition based on the record, or the Commission may request further briefing or oral presentation.

Proposed Changes to § 1025.25 (Summary Decisions and Orders)

We are proposing changes to § 1025.25(a) to align our rule more closely with Rule 56 of the Federal Rules. Under our current Rules of Practice, the movant does not have to file a statement of material facts not in dispute, nor does the respondent have to file a statement of material facts that respondent contends are in dispute. The proposed change would require that motions and oppositions to motions be accompanied by separate statements of material facts about which the movant asserts there is no dispute and about which the opposing party contends there is a genuine dispute. We believe this change will enhance efficiency because filing statements of material fact would help pinpoint the primary issues in dispute. We also propose to revise § 1025.25(a) to conform to changes we propose to § 1025.21, discussed above, to state that a summary decision motion be filed in accordance with any prehearing order issued by the Presiding Officer. The time for filing the motion would also be defined, providing that such motions to be filed up to thirty (30) days following the close of discovery. We are proposing this change because we believe this time period would afford the Presiding Officer sufficient time to carefully consider such motions, and would encourage resolution of part or all the matter well in advance of the scheduled hearing date.

We also propose to revise § 1025.25(b) to require that a response to a summary decision motion be accompanied by a statement of material facts that the opposing party contends are in dispute, a change that will enhance focus on the main issues in dispute. We also propose to modify § 1025.25(c) to add specific items in the record that should be considered by the Presiding Officer in resolving the motion, a change that mirrors Rule 56 of the Federal Rules.

Proposed Changes to § 1025.26 (Settlements)

We are proposing to revise § 1025.26(b) to clarify that motions that request that the Presiding Officer transmit a proposed consent agreement to the Commission must be filed in camera. In addition, we propose to amend this paragraph to state that offers of settlement shall be served on complaint counsel. Thus, the revised rule would ensure that complaint counsel would be apprised of any non-jointly submitted offers of settlement. Under the current rule, a party may submit any settlement offer to the Commission without notifying complaint counsel. Because we are proposing in this rule to remove the ex parte prohibition on communications in the context of settlement agreements, discussed in § 1025.68, we are proposing that complaint counsel be made aware of all such offers so that complaint counsel can communicate knowledgeably to the Commission about the substance of such offers.

In § 1025.26(c)(1) through (4), we propose a number of non-substantive editorial changes. In § 1025.26(c)(5), we propose to add language that an offer of settlement should also include a list of “acts or practices that the respondent shall affirmatively undertake.” This addition acknowledges the authority of the Commission, after an opportunity for hearing, to order a firm to undertake certain actions pursuant to section 15(d) of the CPSA.

Under current § 1025.26(d), the Presiding Officer may transmit to the Commission offers of settlement that meet the requirements of form and content set forth in § 1025.26(c). We propose to revise this paragraph to require the Presiding Officer to transmit all non-frivolous, non-duplicative settlement offers to the Commission, removing the discretion provided to the Presiding Officer in the current rule. We propose this change because we believe the Commission should review all non-frivolous, non-duplicative settlements with the goal of advancing resolution of a matter, if possible. In addition, we propose that, to be transmitted, such an offer must comply with the requirements of § 1025.26(b), as well as § 1025.26(c).

We also are proposing non-substantive changes in § 1025.26(e) and (g).

Subpart D—Discovery, Compulsory Process

Proposed Changes to § 1025.31 (General Provisions Regarding Discovery)

The Commission proposes to revise § 1025.31(a) to require parties to conduct discovery in accordance with Rule 26 of the Federal Rules, with several exceptions, discussed below. Rule 26 imposes a number of requirements, such as requiring initial disclosures, prehearing conferences, scope of discovery, and limitations on the timing, frequency and extent of discovery. Rule 26 also sets forth provisions governing discovery of material prepared in anticipation of trial, expert discovery, and requests for protective orders. Under the current rule, methods, sequence and scope of discovery are addressed in a general fashion. We believe that adopting the detailed procedures set forth in Rule 26 will achieve earlier and more meaningful coordination between the parties and will advance the efficient progress of an adjudicative proceeding.

Although we intend largely to follow Rule 26, we propose to depart from Rule 26 procedures in a number of ways. Specifically, regarding the time periods for discovery, we will not follow Rule 26 guidance and will instead allow schedules to be set at the discretion of the Presiding Officer, unless a specific time frame is set forth in our rules. We expect the Presiding Officer to set appropriate timelines as the facts may dictate or the comparative complexity of a matter requires. We also expect that, whenever possible, the Presiding Officer will shorten schedules, particularly where expedited hearings would serve the public interest, or where issues do not require expert discovery or lengthy evidentiary hearings.

In addition, in proposed § 1025.31(a), we would require that initial disclosure of information be produced no later than 5 days after the preliminary meeting of the parties. This proposed rule shortens the 14-day time frame for such disclosures that is afforded under the Federal Rule, a step that furthers coordination among the parties and encourages expeditious resolution of issues. We also propose that our proceedings not adhere to Rule 26 requirements that experts must produce a written report (Rule 26(a)(2)(B)) because such reports may not be practicable in adjudicative matters that proceed on an expedited schedule. We also adopt the provisions governing protective orders in Rule 26(c), but we have modified the Rule to recognize that in adjudicative proceedings under part 1025, such motions shall be made to and decided by the Presiding Officer. In addition, we propose that our proceedings not adhere to Rule 26(f) regarding conference timing, content, and discovery plan because such matters are governed by the proposed revisions to § 1025.21, which allow the Presiding Officer to impose deadlines and shorten time frames, as necessary.

Additionally, we propose changes in newly designated § 1025.31(b), Completion of discovery, to state that the 150-day standard discovery period controls fact discovery but does not control expert discovery, which may extend beyond the 150-day limit. Moreover, our proposed revisions would vest the Presiding Officer with the discretion to establish a time frame for completion of expert discovery. We propose these changes because in our experience expert discovery is more efficient after fact discovery is completed. For less complex matters, the Presiding Officer is vested with the discretion to shorten deadlines and time frames under § 1025.21 of this Rule. Because we are following Rule 26 in large part, we are proposing to omit current paragraphs (a) through (i). We also note that, in following Rule 26, parties are not required to file discovery with the Secretariat and the Presiding Officer. Instead, parties would serve discovery responses on each other, thus relieving the Secretariat and the Presiding Officer of the burden of maintaining a voluminous amount of information.

Proposed Changes to § 1025.32 (Written Interrogatories to Parties)

We propose to revise this section to follow Rule 33 of the Federal Rules (Interrogatories to Parties), including the number, scope, and timing of interrogatories, the requirements of answers and objections, and the option to produce business records, so that we can maximize efficiency and reduce undue delay. Under the proposed change, for example, interrogatories would be limited to 25. The current rules do not impose any limits, thereby inviting overly burdensome requests and potential abuse that could impede the progress of a matter. Adopting Rule 33 of the Federal Rules would allow the Presiding Officer to alter the limits on the frequency and extent of discovery pursuant to Rule 26(b).

Because we propose to follow the Federal Rules on interrogatories, we also propose to omit § 1025.32(a) through (d) of the current rules.

Proposed Changes to § 1025.33 (Production of Documents)

The Commission proposes to revise the title to Production of documents, electronically stored information, and tangible things; access for inspection and other purposes, to reflect the expanded types of information covered by this section. In addition, we propose to revise this section to follow, with one exception, Rule 34 of the Federal Rules (Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes). This provision governs the number, scope, and timing of information requests, the requirements of responses and objections, and Rule 34's treatment of production of ESI. We believe this proposed change would maximize efficiency because the proposed procedure would align our discovery practice with discovery under the Federal Rules and case law interpreting the Federal Rules, and would provide specific direction on the discovery of ESI, which is not specifically addressed in our current rules. However, we propose to depart from Rule 34 regarding requests for subpoenas, and propose instead that requests for subpoenas be governed by § 1025.38 of our Rules of Practice, as discussed below. Because we propose to follow the Federal Rules for the production of documents, we also propose to omit § 1025.33(a) through (d).

Proposed Changes to § 1025.34 (Requests for Admission)

We propose to revise this section to follow, with one exception, Rule 36 of the Federal Rules (Requests for Admission). We would not follow Rule 36 regarding the award of expenses under Rule 37(a)(5) because expenses are not authorized under our Rules of Practice; rather, parties may follow the procedures set forth in § 1025.70 of the Rules of Practice. Because we propose to follow the Federal Rules, we also propose to omit § 1025.34(a) through (c).

Proposed Changes to § 1025.35 (Depositions)

For efficiency reasons and ease of practice, we propose largely to follow the Federal Rules on depositions, which are familiar to most practitioners. Specifically, the Commission proposes to revise this section to follow Rule 30 (Depositions by Oral Examination), Rule 31 (Depositions by Written Questions), and Rule 32 (Using Depositions in Court Proceedings) of the Federal Rules, with certain exceptions discussed below. We propose that requests for subpoenas continue to be governed by § 1025.38 of our Rules of Practice. We also propose that provisions in the Federal Rules governing award of attorney's fees and expenses shall not apply. Because we propose to follow the Federal Rules, we also propose to omit § 1025.35(a) through (h).

We propose these changes because the procedures set forth in Federal Rule 30, for example, would facilitate the noticing of depositions by the parties and encourage cooperation among the litigants during the discovery process. Under our current rule, parties are required to obtain leave of the Presiding Officer to notice all depositions, and there is no limit on the number of depositions that may be noticed. Federal Rule 30 allows parties to notice depositions without leave in most circumstances, including if the parties have stipulated to the deposition and the deposition would not result in more than 10 depositions being taken by each party. In addition, a party wishing to depose a nonparty under the current rule is required to apply for a subpoena; Federal Rule 30 has no such requirement, which will expedite the discovery process. Our current rules also do not limit the length of a deposition, which can lead to protracted and costly depositions; Federal Rule 30, however, establishes a limit on the length of a deposition, limiting depositions to one 7- hour day, unless otherwise ordered by the court.

We also propose following Federal Rule 31, titled, Depositions by Written Questions, a practice not currently authorized by our Rules of Practice. We propose this addition because this discovery tool can be more efficient and less costly than an in-person deposition, and may facilitate a more streamlined use of additional discovery methods. We additionally propose following Federal Rule 32 titled, Using Depositions in Court Proceedings because the provisions of this rule address more comprehensively than § 1025.35, the appropriate uses of depositions, the objections to such use, and the form of presentation.

Proposed Changes to § 1025.36 (Motions to Compel Discovery)

The Commission proposes to revise this section to include a requirement that motions to compel discovery include a certification that the movant has, in good faith, conferred or attempted to confer with the person or party failing to make disclosure. This change is consistent with the requirements in the Federal Rules (see Federal Rule 37(a)(1)), and we believe this change would encourage resolution of the issues between parties, without intervention by the Presiding Officer.

Proposed Changes to § 1025.38 (Subpoenas)

We propose to update this section to make it consistent with our proposed changes on electronic filing, discussed above, and for clarity.

We would revise § 1025.38(b) to properly identify the Secretariat. In addition, we propose to amend § 1025.38(c) and (d) to clarify the content of, and application process for, subpoenas. Specifically, we propose to remove the paper filing requirement, eliminate the requirement that applications be submitted in triplicate, and delete other requirements related to paper filing.

Additionally, in § 1025.38(e), we propose to allow subpoena service to nonparties, as set forth in § 1025.16(b)(2) through (5), which allows for service by a variety of means, but does not permit electronic service. Because nonparties may not have verified electronic addresses, and certification of receipt is not required, service of a subpoena by the other specified methods is more reliable. For parties, we propose allowing for service in any of the methods set forth in § 1025.16(b)(1) through (5). We believe these proposed changes would increase the efficiency of subpoena service because the revisions allow for multiple methods of service, and, in particular, permit electronic service among parties, where the parties have agreed to such methods of service or the Presiding Officer has permitted these methods of service. Additionally, § 1025.38(f) would permit, in addition to mail carrier service, return of service of subpoenas by commercial carrier, a change that reflects common practice today. We also propose to eliminate the requirement that a copy of the subpoena be returned to the Secretary. In addition to other minor and non-substantive changes in § 1025.38(g), we propose to clarify that a motion to quash or limit should be ruled on by the Commission as a time critical matter in accordance with the Commission Decision Making Procedures.

Proposed Changes to § 1025.39 (Orders Requiring Witnesses To Testify or Provide Other Information and Granting Immunity).

We propose deleting this section and other distinctions relating to the Flammable Fabrics Act (“FFA”) throughout these rules because they are no longer necessary in light of the Commission's enhanced authority set forth in section 214 of the Consumer Product Safety Improvement Act of 2008, which permits the Commission to take action under section 15 of the Consumer Product Safety Act for violations of that statute and any other Act enforced by the Commission.

Subpart E—Hearings

Proposed Changes to § 1025.41 (Hearings; General Rules)

The Commission proposes to revise § 1025.41(a) to clarify that Commissioners and their staffs should not attend or view public hearings concerning matters that may become subject of review by the Commission as the appellate body. We also propose to revise § 1025.41(b) to clarify that adjudicative proceedings shall be held in one location, absent unusual circumstances. Based on staff experience and common practice in other agencies, we also propose to limit the duration of a proceeding to no more than 210 hours, absent a showing of good cause. We believe this provides ample time for the proper conduct of most hearings, but allows flexibility to alter the time frame if circumstances warrant. We propose other minor, non-substantive changes in § 1025.41(c) for clarity.

Proposed Changes to § 1025.42 (Powers and Duties of Presiding Officer)

The Commission proposes to revise § 1025.42(a)(6) to state that, in addition to procedural motions, the Presiding Officer is empowered to consider and rule on evidentiary motions and other issues, as appropriate. We propose other minor, non-substantive changes in § 1025.42(a)(3) and (b), for clarity. In proposed § 1025.42(d), we make clear that, in addition to the Commission, a Presiding Officer shall not be responsible to, or subject to the supervision of, a Commissioner or a member of a Commissioner's staff in performance of the adjudicative function.

In § 1025.42(e), we propose to clarify that the Commission shall consider a motion to disqualify the Presiding Officer only if the matter has been decided and appealed to the Commission. In addition, we propose other minor, non-substantive changes.

Proposed Changes to § 1025.43 (Evidence)

The Commission proposes to supplement § 1025.43(a) to provide specific examples of the ways in which the Federal Rules of Evidence may be relaxed to best serve the interests of justice. More specifically, the proposal states that evidence constituting hearsay may be admitted if it is relevant, material, and bears satisfactory indicia or reliability so that its use is fair. In addition, we are proposing a minor, non-substantive change in § 1025.43(d)(1)(i) for uniformity. We also propose to remove an unnecessary “reserved” paragraph in § 1025.43(e) and re-designate paragraph (f) as paragraph (e).

Proposed Changes to § 1025.44 (Expert Witnesses)

The Commission proposes to revise § 1025.44(a) to align our rule on experts more closely with the standard set forth in Rule 702 of the Federal Rules of Evidence (Testimony by Expert Witnesses). We make this change to maximize efficiency by working within an evidentiary framework with which most practitioners are familiar and allowing the parties and Presiding Officer to be guided by case law interpreting the Federal Rules.

We also propose revising § 1025.44(b) to make clear that the Presiding Officer has the authority to order expert testimony to be in writing and filed on the record. In addition, we propose to clarify that the Presiding Officer has the discretion to allow live testimony in lieu of a written submission. This change would be in keeping with our goal of vesting broad discretion with the Presiding Officer in the conduct of a proceeding.

We propose to revise § 1025.44(c) and (d) to conform to our proposed revision in § 1025.44(b).

Proposed Changes to § 1025.45 (In Camera Materials)

We propose to revise § 1025.45(b) to correct typographical and grammatical errors, and to clarify the standard that applies to in camera treatment of documents and testimony. We also propose to move language related to the length of time for in camera treatment from § 1025.45(b) to § 1025.45(b)(3). Additionally, we propose adding language to § 1025.45(e) to make clear that in camera materials may not be released to the public until the order granting in camera treatment expires. We propose to revise § 1025.45(f) for clarity.

Proposed Changes to § 1025.46 (Proposed Findings, Conclusions, and Order)

The Commission proposes to revise this section to make the filing of post-hearing briefs mandatory. Under the current rule, parties may file post hearing briefs, but are not required to do so. Because we believe the public and the Presiding Officer would benefit from a concise but comprehensive summary of the matter at issue, we propose that this filing be mandatory. In addition, we propose to limit post-hearing briefs to thirty (30) pages. Currently, the rule does not impose a page limit, and we believe parties should be encouraged to file concise pleadings. We also propose to limit replies to the discretion of the Presiding Officer so that the pace of the adjudication at this juncture is not slowed unnecessarily by the filing of excessive briefing materials. We propose other non-substantive changes for clarity.

Proposed Changes to § 1025.47 (Record)

The Commission proposes to revise § 1025.47(a) of this section to delete the requirement for an “official court reporter of the Commission” because the Commission has no official court reporter. The revised language would require that a hearing shall be “recorded and transcribed by a court reporter under the supervision of the Presiding Officer.” We are proposing other non-substantive changes for clarity, including a revision to the appendix citation in the Federal Advisory Committee Act.

Proposed Changes to § 1025.48 (Official Docket)

The Commission proposes to revise this section to require that the official docket be maintained electronically, in keeping with changes we are proposing throughout our Rules of Practice to update our procedures to reflect advances in technology. We also propose to delete the statement that the docket would be available for inspection by the public during normal business hours as unnecessary because the docket would be available electronically. We propose other non-substantive changes for clarity.

Proposed Changes to § 1025.49 (Fees)

The Commission proposes to revise § 1025.49(a) to allow parties to modify this provision by agreement.

Subpart F—Decision

Proposed Changes to § 1025.51 (Initial Decision)

Under current § 1025.51(a), the Presiding Officer shall endeavor to file an Initial Decision within sixty (60) days after the record closes in a case, or after the filing of post-hearing briefs, whichever is later. The Commission proposes to revise § 1025.51(a) to require the Presiding Officer to file the Initial Decision within a fixed deadline of 60 days. This change is consistent with the Commission's goal of avoiding unnecessary delay and ensuring that a matter progresses in a timely manner to serve the interests of justice.

The current rules impose numerous interim deadlines, but do not explicitly provide for a total time limit from complaint to Initial Decision. Staff advises that most cases will take more than 1 year for the Presiding Officer to render an Initial Decision. The Commission believes that the Presiding Officer has considerable discretion in managing cases to ensure the timely and efficient resolution of proceedings, and the Commission expects that the Presiding Officer shall endeavor to make those proceedings as swift as practicable in the interest of due process and the protection of consumer health and safety.

The administrative procedures at sister agencies such as the Securities and Exchange Commission (“SEC”), the Consumer Financial Protection Bureau (“CFPB”), and the Federal Trade Commission (“FTC”) employ other practices on ways to make adjudicatory proceedings more efficient, including a fixed time limit from issuance of complaint to evidentiary hearing as required by FTC Rule 16 CFR 3.11 (Commencement of Proceedings), a fixed time limit from complaint to initial decision as required by SEC Rule, 17 CFR 201.360(a)(2) (Initial Decision of Hearing Officer) and CFPB Rule, 12 CFR 1081.400(a) (Recommended Decision of the Hearing Officer), and changes to the rules that limit the scope of discovery available to parties in administrative proceedings as has been adopted by the SEC and CFPB. The Commission seeks comment on whether CPSC should adopt similar practices.

We also propose to revise § 1025.51(c) to make clear that the Commission may order that an individual, other than the Presiding Officer, may make and file an Initial Decision, if the Presiding Officer is disqualified under § 1025.42(e).

We are proposing to revise § 1025.51(d) to limit the authority of the Presiding Officer to reopen the proceedings to only those circumstances “where the interests of justice so require.” We propose this change to emphasize the need for finality and to ensure timely disposition of a matter.

Proposed Changes to § 1025.52 (Adoption of Initial Decision)

We are proposing a minor, non-substantive change for consistency.

Proposed Changes to § 1025.53 (Appeal From Initial Decision)

The Commission proposes to revise the title of § 1025.53(a) to Notices of appeal, and we propose several additional changes for clarity.

In addition, we propose to revise § 1025.53(b) to limit appeal briefs to thirty (30) pages. Currently, the rule does not impose a page limit, and we believe parties should be encouraged to file concise pleadings. We also propose to amend § 1025.53(c) to impose the same 30-page restriction on answering briefs that applies to appeal briefs. In § 1025.53(f), we would clarify that reply briefs are not required, but if filed, they shall not exceed fifteen (15) pages.

Proposed Changes to § 1025.55 (Final Decision on Appeal or Review)

The Commission proposes to revise § 1025.55 to remove the word “endeavor.” By doing so, the Commission commits to issue its final decision on appeal or review within 90 days after the filing of all briefs or after receipt of transcript of the oral argument, whichever is later. We are also proposing a minor, non-substantive change in § 1025.55(a) for clarity.

Proposed Changes to § 1025.56 (Reconsideration)

We are proposing minor, non-substantive changes for clarity and to correct a typographical error.

Proposed Changes to § 1025.57 (Effective Date of Order)

The Commission proposes to revise § 1025.57(a) and (b) to clarify that Commission orders in adjudicative proceedings under the CPSA or the FFA become effective upon receipt by the Respondent.

In § 1025.57(b)(1), we propose an additional, non-substantive change for clarity. In § 1025.57(b)(2), we propose corrections for citation errors.

Proposed Changes to § 1025.58 (Reopening of Proceedings)

The Commission proposes to revise § 1025.58(c)(2) for clarity.

In proposed § 1025.58(e)(2), we make clear that the Commission may direct the Presiding Officer to conduct additional hearings if the pleadings raise substantial factual issues. We are proposing this change because as written it is unclear under whose auspices such a hearing would be conducted and recognize that such a hearing should be conducted by the Presiding Officer as the finder of fact. We further propose to clarify in this section, consistent with proposed changes to § 1025.46, to state that post hearing briefs are mandatory. We propose one other non-substantive change for clarity.

Subpart G—Appearances, Standards of Conduct

Proposed Changes to § 1025.63 (Written Appearances)

The Commission proposes to revise § 1025.63(a) and (b) to conform the requirement for the filing of a notice of appearance to our proposed electronic filing changes to § 1025.14 of the Rules of Practice.

In § 1025.63(b), we propose other minor, non-substantive changes for clarity.

Proposed Changes to § 1025.65 (Persons Not Attorneys)

The Commission proposes to revise § 1025.65(a) for clarity.

Proposed Changes to § 1025.66 (Qualifications and Standards of Conduct)

The Commission proposes to revise § 1025.66(d) for clarity.

Proposed Changes to § 1025.67 (Restrictions as to Former Members and Employees)

The Commission proposes to retitle this section to: Restrictions as to former Commission members, to align the title with the text in § 1025.67(a). We also would revise § 1025.67(a) to include additional statutory and regulatory restrictions and propose to revise § 1025.67(c) for clarity.

Proposed Changes to § 1025.68 (Prohibited Ex Parte Communications)

We propose to add a new § 1025.68(b) to state that, except to the extent required for disposition of ex parte matters authorized by law or by this part, ex parte prohibitions apply to a number of circumstances. Specifically, new § 1025.68(b)(1) would prohibit ex parte communications relevant to the merits of an adjudication by any interested person not employed by the CPSC to any decision maker during the pendency of a proceeding under the Rules. Under the current rule, an ex parte communication is defined as a communication concerning a matter in adjudication made to a decision-maker by any person subject to the Rules of Practice. Our proposed change, which is consistent with the APA, would broaden the ex parte prohibition to include any “interested person not employed by the Commission.” Additionally, new proposed § 1025.68(b)(2) would prohibit any decision maker from making an ex parte communication to any interested party not employed by the Commission. To conform new § 1025.68(c)(2)(i) and (ii) with our proposed new § 1025.68(b), we would omit language in those paragraphs limiting the prohibition to persons subject to these Rules of Practice and add language tracking new § 1025.68(b).

The Commission also proposes to revise § 1025.68(d) to add paragraph (d)(3) to state that ex parte prohibitions do not apply to communications by any party to the Commission concerning a proposed settlement agreement that has been transmitted to the Commission. We are proposing this change because we believe this would allow parties to communicate information to the Commission that might not otherwise be available to the Commission.

We also propose changes in § 1025.68(e) to clarify that the procedures for handling prohibited ex parte communications are also available to recipients of such communications who are not employed by the Commission. We make other, non-substantive changes to § 1025.68(e), as well.

In § 1025.68(g), we propose changes to be consistent with the proposed changes to this section discussed above, and we also propose that sanctions shall apply to any person or party who makes or causes a prohibited ex parte communication to be made. As currently drafted, the provision allowing sanctions applies only to persons subject to the Rules of Practice. We propose language that would allow sanctions to be imposed on a person who, while not a party, makes a prohibited ex parte communication and subsequently becomes a party. The proposed language, which is consistent with the adjudicative rules adopted by FTC, would authorize the Presiding Officer to impose sanctions allowed under this section, if that person later becomes a party to the proceeding.

We propose other minor, non-substantive changes for clarity.

Proposed § 1025.69 (Separation of Functions)

To clarify that Commission staff charged with investigative and prosecutorial responsibilities may not advise a decision maker or otherwise participate in a decision in a proceeding, we propose to add a new § 1025.69 titled, Separation of functions, setting forth the separation of functions provisions of the APA, 5 U.S.C. 554(d).

Subpart H—Implementation of the Equal Access to Justice Act in Adjudicative Proceedings With the Commission

Proposed Changes to § 1025.70 (General Provisions)

The Commission proposes to revise this section to remove outdated and confusing references to the Equal Access to Justice Act (“EAJA”). As written, the rule substantially re-states EAJA requirements existing when the rule was adopted initially. Many elements of those requirements are no longer current. To avoid updating these rules each time an element of the EAJA is changed, we propose removing references to specific EAJA requirements and stating instead that the EAJA applies to certain adjudicative proceedings before the Commission. We propose stating generally that applications for fees and expenses may be made according to the EAJA, as interpreted by the federal courts and guidance provided by the U.S. Department of Justice (“DOJ”). Such interpretative case law and DOJ guidance provide ample direction for applicants, the Presiding Officer, and the Commission in the application for, and consideration of, a request for attorney's fees and other expenses. We do not believe our proceedings warrant particularized requirements regarding EAJA and that the guidance provided by the DOJ, and as interpreted by federal courts, would be sufficient for applicants to proceed with an EAJA claim. We note too that other federal agencies, such as the CFPB, have adopted rules of practice without reference to EAJA. Because we believe DOJ and federal court guidance is sufficient, we propose to omit language in § 1025.70(a) and the entirety of § 1025.70(b) through (h). We are also proposing several minor, non-substantive changes for clarity.

Proposed Changes to 1025.71 (Information Required From Applicant)

Consistent with our goal of following DOJ and federal court guidance on EAJA, we propose omitting this section.

Proposed Changes to § 1025.72 (Procedures for Considering Applications)

Consistent with our goal of following DOJ and federal court guidance on EAJA, we propose omitting this section.

Proposed Changes to Appendix I to Part 1025 (Suggested Form of Final Prehearing Order)

We are proposing to omit this appendix, which contains a suggested form for a final prehearing order, given our proposed revisions to the requirements for prehearing conferences and orders, discussed above.

IV. Environmental Considerations

The Commission's regulations address whether the Commission is required to prepare an environmental assessment or an environmental impact statement. 16 CFR part 1021. These regulations provide a categorical exclusion for certain CPSC actions that normally have “little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(l). This proposed rule falls within the categorical exclusion.

V. Regulatory Flexibility Analysis

Under section 603 of the Regulatory Flexibility Act (“RFA”), when the APA requires an agency to publish a general notice of proposed rulemaking, the agency must prepare an initial regulatory flexibility analysis (“IRFA”), assessing the economic impact of the proposed rule on small entities. 5 U.S.C. 603(a). As noted, the Commission is proposing to update its Rules of Practice for Adjudicative Proceedings. Although the Commission is choosing to issue the rule through notice and comment procedures, the APA does not require a proposed rule when an agency issues rules of agency procedure and practice (5 U.S.C. 553(b)). Therefore, no IRFA is required under the RFA. Moreover, the proposed rule would not establish any mandatory requirements and would not impose any obligations on small entities (or any other entity or party).

VI. Paperwork Reduction Act

The Paperwork Reduction Act (“PRA”) establishes certain requirements when an agency conducts or sponsors a “collection of information.” 44 U.S.C. 3501-3520. The proposed rule would amend the Commission's Rules of Practice to adopt modern adjudicative procedures. The proposed rule would not impose any information collection requirements. The existing Rules of Practice and the proposed revision do not require or request information from firms, but rather, explain procedures for adjudicatory hearings. Thus, the PRA is not implicated in this proposed rulemaking.

VII. Executive Order 12988 (Preemption)

According to Executive Order 12988 (February 5, 1996), agencies must state in clear language the preemptive effect, if any, of new regulations. Section 26 of the CPSA explains the preemptive effect of consumer product safety standards issued under the CPSA. 15 U.S.C. 2075. The proposed Rules of Practice do not set consumer product safety standards. Rather, the proposed Rules of Practice is an adoption of updated rules of agency procedure and practice. Therefore, section 26 of the CPSA would not apply to this rulemaking.

VIII. Effective Date

In accordance with the APA's general requirement that the effective date of a rule be at least 30 days after publication of the final rule, the Commission proposes that the effective date be 30 days after the date of publication of a final rule in the Federal Register. 5 U.S.C. 553(d).

IX. Request for Comments

The Commission requests comments on all aspects of the proposed rule. Comments should be submitted in accordance with the instructions in the ADDRESSES section at the beginning of this document. Written comments must be received by June 13, 2016.

List of Subjects in 16 CFR Part 1025

• Administrative practice and procedure
• Consumer protection

For the reasons set forth in the Preamble, the Commission proposes to amend 16 CFR part 1025 to read as follows:

PART 1025—RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS

1. The authority citation for part 1025 is revised to read as follows:

Authority: Authority: 15 U.S.C. 45, 1192, 1194, 1197(b), 1274, 1473(c), 2064, 2066(b), 2076, 8003.

2. Revise § 1025.1 to read as follows:

3. Amend § 1025.2 by removing the words “these Rules” and adding, in their place, the words “this part”.

4. Amend § 1025.3 by:

a. Redesignating paragraphs (e) through (l) as paragraphs (h) through (o);

b. Adding new paragraphs (e), (f), and (g); and

c. Revising newly redesignated paragraphs (i) and (n).

The additions and revisions read as follows:

5. Amend § 1025.11 by:

a. Revising paragraphs (a) and (b)(3); and

b. Adding paragraph (d).

The revisions and addition read as follows:

6. Revise § 1025.13 to read as follows:

7. Amend § 1025.14 by revising the section heading and paragraphs (a), (c), (d)(1), and (e) to read as follows:

8. Revise § 1025.15 to read as follows:

9. Revise § 1025.16 to read as follows:

(Signature)

For

(f) Date of service. The date of service of a document shall be the date on which the document is sent electronically, deposited with the United States Postal Service, postage prepaid, or is delivered in person.

10. Amend § 1025.17 by:

a. Removing the words “these rules” in paragraph (a) introductory text and adding, in their place, the words “this part”;

b. Removing the word “Secretary” in paragraphs (a) introductory text, (b) introductory text, and (c) and adding, in its place, the word “Secretariat”;

c. Removing the words “, of these rules” in paragraph (b)(3); and

d. Removing the word “peititioner's” in paragraph (d)(5) and adding, in its place, the word “petitioner's” .

11. Amend § 1025.18 by revising paragraphs (a)(1) and (f)(4) and removing the undesignated paragraph following paragraph (f)(4) to read as follows:

12. Revise § 1025.19 to read as follows:

13. Revise § 1025.21 to read as follows:

14. Revise § 1025.22 introductory text to read as follows:

15. Amend § 1025.23 by:

a. Removing the word “Secretary” from paragraph (b) and adding, in its place, the word “Secretariat”; and

b. Revising paragraphs (a) and (c).

The revisions read as follows:

16. Amend § 1025.24 by:

a. Adding the words “that is the subject of a proceeding under this part” at the end of paragraph (b)(1)(ii);

b. Removing the period at the end of paragraph (b)(1)(iv) and adding a semicolon in its place;

c. Adding paragraph (b)(1)(v); and

d. Revising the last sentence of paragraph (b)(2).

The addition and revision read as follows:

17. Amend § 1025.25 by revising paragraphs (a), (b), (c), and (d) to read as follows:

18. Revise § 1025.26 to read as follows:

19. Revise § 1025.31 to read as follows:

20. Revise § 1025.32 to read as follows:

21. Revise § 1025.33 to read as follows:

22. Revise § 1025.34 to read as follows:

23. Revise § 1025.35 to read as follows:

24. Revise § 1025.36 to read as follows:

25. Amend § 1025.37(g) by removing the words “of these rules”.

26. Revise § 1025.38 to read as follows:

27. Remove § 1025.39.

28. Amend § 1025.41 by revising paragraphs (a) through (d) to read as follows:

29. Amend § 1025.42 by:

a. Revising paragraphs (a)(3), (6), and (9), (b), (d), and (e)(2); and

b. In paragraph (e)(1), removing the word “Secretary” and adding, in its place, the word “Secretariat”.

The revisions read as follows:

30. Amend § 1025.43 by:

a. Revising paragraphs (a) and (d)(1)(i);

b. Removing paragraph (e); and

c. Redesignating paragraph (f) as paragraph (e).

The revisions read as follows:

31. Revise § 1025.44 to read as follows:

32. Amend § 1025.45 by revising paragraphs (b) introductory text, (b)(2) and (3), (e), and (f) to read as follows:

33. Revise § 1025.46 to read as follows:

34. Amend § 1025.47 by revising paragraph (a) to read as follows:

35. Revise § 1025.48 to read as follows:

36. Amend § 1025.49 by revising paragraph (a) to read as follows:

37. Amend § 1025.51 by revising paragraphs (a), (c), and (d)(1) to read as follows:

38. Amend § 1025.52 by removing the word “Secretary” and adding, in its place, the word “Secretariat”.

39. Amend § 1025.53 by revising paragraphs (a), (b) introductory text, (c), and (f) to read as follows:

40. Amend § 1025.55 by:

a. Removing the comma following the words “in addition” in paragraph (a); and

b. Revising paragraph (c).

The revision reads as follows:

41. Amend § 1025.56 by:

a. Removing the word “sevice” and adding, in its place, the word “service”; and

b. Adding, in the last sentence, the word “Final” before the words “Decision or Order”.

42. Amend § 1025.57 by revising paragraph (a), removing paragraph (b), and redesignating paragraph (c) as paragraph (b) to read as follows:

43. Amend § 1025.58 by:

a. Removing paragraph (b);

b. Redesignating paragraphs (c) through (f) as paragraphs (b) through (e); and

c. Revising newly redesignated paragraphs (b)(2) and (d)(2).

The revisions read as follows:

44. Revise § 1025.63 to read as follows:

45. Amend § 1025.65 by:

a. Removing the word “files” from paragraph (a) and adding, in its place, the word “provides”; and

b. Removing the word “Secretary” in paragraph (a) and adding, in its place, the word “Secretariat”.

46. Amend § 1025.66 by removing the words “of these rules” from paragraph (d).

47. Amend § 1025.67 by:

a. Revising the section heading and paragraphs (a) and (b); and

b. Removing the word “Secretary” in paragraph (c) introductory text and adding, in its place, the word “Secretariat”.

The revisions read as follows:

48. Revise § 1025.68 to read as follows:

Subpart H—Implementation of the Equal Access to Justice Act in Adjudicative Proceedings With the Commission

49. The authority citation for part 1025, subpart H, is revised to read as follows:

Authority: 5 U.S.C. 504, 551 et seq.

50. Add § 1025.69 to subpart H to read as follows:

51. Revise § 1025.70 to read as follows:

52. Remove §§ 1025.71 and 1025.72 and appendix I to part 1025.