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17622 Federal Register / Vol. 66, No.

64 / Tuesday, April 3, 2001 / Rules and Regulations

§ 337.6 [Amended] corrections, and changes to the rules, as attempt to narrow the issues in the case,
2. Section 337.6(e) is removed and follows. which will also assist the ALJ in crafting
reserved. a meaningful pretrial order, the
Reports of Compliance
Commission will make a modest
By order of the Board of Directors. To facilitate the processing and enlargement of the period in Rule
Dated at Washington, D.C., this 26th day of review of compliance reports, Rule 3.21(b) from seven to fourteen (14) days.
March, 2001. 2.41(a) is being amended to provide (1) Adjudicative Motions: Rule 3.22:
Federal Deposit Insurance Corporation. that an original and one copy of each When the Commission amended the
Robert E. Feldman, such compliance report should be filed Part 3 Rules in 1996, it approved a
Executive Secretary. with the Secretary of the Commission, change to Rule 3.22(b) to require ‘‘that
and (2) that, at the same time, one all motions in adjudicative proceedings
[FR Doc. 01–8100 Filed 4–2–01; 8:45 am]
additional copy should be filed with the include the name, address, and
Associate Director for Enforcement in telephone number of counsel, and
the Bureau of Consumer Protection (for attach a draft order containing the
consumer protection orders) or with the proposed relief.’’ See 61 FR 50640,
Assistant Director for Compliance in the 50644. This language was inadvertently
Bureau of Competition (for competition omitted from the revised Rule itself, as
16 CFR Parts 2, 3 and 4 orders). published in the Federal Register and
Pretrial and Discovery later incorporated into the Code of
Rules of Practice Federal Regulation (although part of this
Responsive Motions: Rule 3.12(a): In requirement is contained in Rule
AGENCY: Federal Trade Commission federal court practice, Federal Rule of 4.2(e)(1)). In addition to making this
Civil Procedure 12(a)(4) provides that change in Rule 3.22, the amended rule
ACTION: Interim rules with request for
the filing of a ‘‘motion permitted under will also require counsel to provide a
this rule’’ tolls the period for answering fax number and e-mail address, if any,
a complaint. Commission Rule 3.12(a) along with name, address and phone
SUMMARY: The Commission is updating generally follows the federal rule but number.
and making other technical corrections mentions only a motion for a more Summary Decision: Rule 3.24(a)(2):
and changes to its regulations on definite statement. Although other The rule currently provides that a
Organization, Procedures and Rules of motions, such as motions to dismiss, are decision shall be rendered ‘‘within
Practice. undoubtedly rare at the outset of FTC thirty (30) days.’’ For clarity, the Rule is
DATES: These rule amendments will be administrative proceedings, there is no being amended to specify that the
effective May 18, 2001. Comments must reason to exclude such dispositive decision is due within thirty (30) days
be received on or before May 4, 2001. motions from the rule. Making Rule after the opposition or any final brief
These amendments will govern all 3.12(a) consistent with Fed. R. Civ. P. ordered by the ALJ is filed.
Commission adjudicatory proceedings 12(a)(4) will spare the parties and ALJ Expert Discovery: Rule 3.31(c)(4)(i):
commenced on or after May 18, 2001. the additional inconvenience of Under the Commission’s current rule,
They will also govern all pending arranging extensions of time to answer discovery of experts is handled
Commission adjudicatory proceedings in individual cases where such motions principally by interrogatory. Further
commenced before May 18, 2001 unless, are filed. discovery, including depositions,
Initial Pretrial Conferences: Rule requires an order from the ALJ. The
in the opinion of the Administrative
3.21(b): Under the Commission’s 1996 amended Rule, reflecting the
Law Judge (ALJ) or the Commission, the
Rule amendments, the ALJs must hold development of practice in recent years
application of one or more amended
a scheduling conference not later than under the Federal Rules of Civil
rules in a particular proceeding would
seven (7) days after the last answer is Procedure, generally provides for
not be feasible or would work injustice.
filed. Although the 1996 amendments disclosure of expert opinions and
ADDRESSES: Written comments must be were designed to expedite depositions of experts. Rule
submitted with 20 copies to the Office administrative litigation, this is one 3.31(c)(4)(B)(iii), regarding payment of
of the Secretary, Room 159, Federal instance in which some additional time expert fees for certain discovery, is
Trade Commission, 600 Pennsylvania might actually make the proceedings deleted. The ALJ can address any issues
Ave., NW., Washington, DC 20580. more efficient. As a practical matter, regarding fees or costs under Paragraph
FOR FURTHER INFORMATION CONTACT: John particularly in cases when service on (d) of this rule.
Graubert, Office of General Counsel, one or more respondents is complicated Depositions: Rule 3.33(a): The
FTC, 600 Pennsylvania Avenue, NW., for any reason (e.g., overseas service), it amended Rule incorporates a provision
Washington, DC 20580, (202) 326–2186, has proved difficult to predict when the modeled on Federal Rule of Civil last answer will be filed and difficult to Procedure 30(b)(7), which permits the
SUPPLEMENTARY INFORMATION: The schedule and plan for a scheduling parties to stipulate or the court to order
Commission has periodically examined conference in this narrow seven-day that a deposition may be taken by
and revised its rules of practice in the window. Moreover, two days after the telephone or other remote electronic
interest of clarifying the rules and initial scheduling conference, no matter means.
making the Commission’s procedures how hastily convened, the ALJ is Foreign Discovery: Rule 3.36: Since
more efficient and less burdensome for required to issue a prehearing the 1996 amendments to the Rules,
all parties.1 The Commission is further scheduling order based in part on the parties may issue subpoenas for
amending parts 2, 3 and 4 of its rules, results of the conference. See Rule depositions or production of documents
16 CFR parts 2, 3 and 4, to update and 3.21(c). Because the Commission wants without prior approval or supervision
make other technical clarifications, the parties to exchange disclosures and from the ALJs, except when the
have meaningful discussions about the discovery request seeks information or
1 See, e.g., 61 FR 50640 (Sept. 26, 1996); 50 FR proceeding before the scheduling testimony from another governmental
41485 (Oct. 11, 1985). conference in order to identify and agency. For discovery involving other

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Federal Register / Vol. 66, No. 64 / Tuesday, April 3, 2001 / Rules and Regulations 17623

government agencies, the parties have to not mean that the ALJs will be expected certain motions before an ALJ, and an
file a motion with the ALJ, who to make rulings on questions of foreign original and ten (10) copies of all other
determines whether the request is law. This showing, together with the documents before an ALJ. In light of the
reasonable in scope and whether the other requirements of Rule 3.36(b), will rule amendments regarding electronic
information sought cannot be merely assist the ALJ in attempting to filing, discussed below, and to reduce
reasonably obtained by other means. See prevent unnecessary conflicts with the burden of the filing process as much
Rule 3.36(b). For all other discovery, the foreign sovereigns. as possible, this rule is amended to
parties obtain subpoena forms There is no comparable need at this require the filing of a paper original and
identifying the Part 3 matter at issue time for rule revisions regarding twelve (12) copies of documents filed
(but executed in blank as to the discovery requests served within the before the Commission, and the paper
subpoena target) from the Secretary’s United States that may require original and only one (1) paper copy of
office, and deliver them on their own. production of documents located abroad each document filed before an ALJ in an
See Rule 3.34(a). These subpoenas (in foreign offices of multinational adjudicative proceeding. The current
include the seal of the agency, are corporations, for example). Cases arising Rule 4.2(c) also requires the filing of ‘‘an
signed by the Secretary, and bear every under similar statutory provisions original and one copy of compliance
indication of being official agency confirm that such discovery requests are reports’’ and the filing of ‘‘one (1) copy
documents. authorized by the FTC Act and are not of admissions and answers thereto.’’ As
Respondents have from time to time likely to present the same noted above, the first requirement has
attempted to serve such subpoenas extraterritoriality concerns as actual been transferred to Rule 2.41, which
abroad. To the extent the subpoenas service of discovery requests abroad.4 deals with the filing of compliance
appear to have the imprimatur of the Rule 3.36 is also being amended to reports, and therefore need no longer
Commission, an attempt to serve them add a new subsection (c), to make it appear in Rule 4.2(c). Similarly, the
on foreign entities outside the territorial clear that each subpoena issued second requirement replicates the
limits of the U.S. may raise serious pursuant to an order of the ALJ under requirement covering admissions and
issues of Commission jurisdiction and Rule 3.36 shall be signed by the answers thereto already set forth in Rule
international law.2 In the interest of Secretary, but must have attached to it, 3.32, and therefore need no longer
limiting or avoiding conflicts with and be served in conjunction with, a appear in Rule 4.2(c) as well. In
foreign authorities in this area, the copy of the Order authorizing its addition, Rule 4.2(c) currently requires
Commission is putting foreign discovery issuance. parties filing motions to provide copies
requests back into the category of ALJ- Rule 3.34, the rule providing for to the ALJ at the time such motions are
supervised discovery under § 3.36. issuance of subpoenas in blank, is filed with the Secretary. Because this
Indeed, the tests provided in § 3.36(b) amended to make clear that that requirement already appears in Rule
provide a framework that closely tracks procedure does not apply to discovery 3.22, and is being added to Rule 4.4(b),
the prerequisites for foreign discovery as requests covered by Rule 3.36. Finally, it may also be removed from Rule 4.2(c).
commonly recognized by treaty, custom the reference to § 3.31(b)(1) in Electronic Filing: Rule 4.2: The Rule
and practice in many countries: That is, § 3.36(b)(2) to § 3.31(c)(1). is amended in a number of respects to
such discovery should only occur if a Orders Compelling Witness reflect current practices and technology.
judge determines that the request is Testimony: Rule 3.39(a): For First, the amended rule requires the
reasonable and that other means of submission to the Commission of
completeness, this rule should
obtaining the information (such as electronic copies of pleadings, motions,
specifically include Directors and
domestic discovery or voluntary briefs, and all other filings in
Deputy Directors of Bureaus, Assistant
arrangements) have been exhausted or adjudicative proceedings—whether
Directors in the Bureau of Competition,
are not available.3 before the Commission or an ALJ—and
Associate Directors in the Bureau of
Parties seeking foreign discovery must of all other formal filings before the
Consumer Protection, and Regional
also make a good faith demonstration Commission, such as petitions to limit
Directors and Assistant Regional
before the ALJ that the discovery or quash and appeals from rulings
Directors of Commission Regional
requested would be permitted by treaty, thereon; requests to reopen or modify;
Offices, to reflect the current
law, custom or practice in the country and applications for approval of
organization of the Bureaus.
from which the discovery is sought and proposed divestitures, acquisitions, or
that any additional procedural Filing of Documents Other Than similar transactions.
requirements have been or will be met Correspondence The Commission notes that other
before the subpoena is served. This does agencies have had electronic filing
In order to facilitate the filing, receipt,
requirements for many years,5 and that
and processing of documents submitted
2 See CFTC v. Nahas, 738 F.2d 487 (D.C. Cir.
to the Commission, in both adjudicative the burden of this proposal on the
1984) (district court lacks jurisdiction to enforce a
and nonadjudicative proceedings—and public is likely to be negligible at this
CFTC investigative subpoena served on a foreign point. The use of electronic word-
citizen in a foreign nation); FTC v. Compagnie de to accommodate the need to secure
Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300 (D.C. electronic copies of such documents in processing equipment is virtually
Cir. 1980) (FTC Act does not authorize service of a routine, systematic, and efficient universal, certainly among parties
subpoenas abroad by registered mail). These issues
manner—Rule 4.2 has been amended in appearing before the Commission. In
are less likely to arise with Civil Investigative case of extreme hardship, however, the
Demands served at the behest of Commission staff, a number of respects:
because section 20(c)(7)(b) of the FTC Act Copies: Rule 4.2(c): The present Rule Secretary is empowered to excuse a
specifically provides for foreign service of CIDs. 4.2(c) requires the filing of an original party from this requirement. The rule
3 See, e.g., Revised Recommendation of the OECD
and twenty (20) copies of ‘‘all follows the format requirements used in
Council Concerning Co-operation Between Member
documents before the Commission’’ and the Commission’s request for
Countries on Restrictive Business Practices nominations for the Advisory
Affecting International Trade, OECD Doc. C (95)130
(Final) (July 1995) at Appendix ¶ 8(a)–(c); U.S. 4 See FMC v. DeSmedt, 366 F.2d 464 (2d Cir.), Committee on Online Access and
Dept. of Justice and Federal Trade Commission, cert. denied, 385 U.S. 974 (1966); accord CAB v.
Antitrust Enforcement Guidelines for International Deutsche Lufthansa Aktiengesellschaft, 591 F.2d 5 See, e.g., 49 CFR 1104.3(a) (Surface

Operations § 4.2 (April 1995). 951 (D.C. Cir. 1979). Transportation Board).

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17624 Federal Register / Vol. 66, No. 64 / Tuesday, April 3, 2001 / Rules and Regulations

Security, which requested that administrative burden with no apparent should not be attributed to that party,
submissions be accompanied by an countervailing benefit. Although such a presumption is neither necessary
electronic copy in ASCII format, changing this practice does not require nor appropriate in the case of the
WordPerfect or Microsoft Word. See 64 a rule change, and has been Commission. The Commission has made
FR 71457 (Dec. 21, 1999). This covers accomplished by a Notice to Staff and clear that it is bound only by the formal
the two most popular word-processing a public announcement, the majority vote of the Commissioners, and
programs. Documents written on other requirement for a certificate of service in not by representations of staff. See, e.g.,
systems can be readily converted into Rule 4.4(c) is now uniformly applicable In re TRW, Inc., et al., 88 F.T.C. 544,
one of the three requested options. to all parties—including both complaint 544–45 (Interlocutory Order, Oct. 13,
The amended rule further provides counsel and all respondents—as 1976).
that an electronic copy of each public indicated by deletion of the phrase ‘‘by In camera Treatment: Rules 3.45(d)
filing in an adjudicative proceeding a party respondent or intervenor’’ from and 3.46(b) & (c): The current rules and
shall be submitted to the Commission this paragraph. Also, the option of practices regarding in camera treatment
by e-mail, while an electronic copy of providing an ‘‘acknowledgment of of evidence are causing a number of
an in camera or otherwise confidential service’’ in lieu of proof of service is problems. First, parties have become
filing shall be submitted to the rarely used, serves little purpose, and extremely lax in complying with the
Commission on a diskette attached to has been deleted. existing rules regarding in camera
the paper original of the filing. The treatment. Parties frequently file
amended rule requires certification that Trials documents stamped ‘‘in camera’’ and
a paper copy with an original signature Evidence: Rule 3.43: In Lenox, Inc., 73 assume in camera treatment will be
is being filed on the same day by other F.T.C. 578, 603–04 (1968), the maintained even though the party has
means, thus preserving the availability Commission articulated its position neither sought nor obtained a ruling
of sanctions under Rule 4.2(e). A paper that, because respondents are in the best granting such treatment. Parties also
copy is also still required because many position to determine the authenticity of routinely ignore or only partially
exhibits and appendices cannot documents kept in their own files, observe the requirement that post-trial
currently be transmitted electronically respondents bear the burden of exhibit and witness lists clearly identify
in a feasible or efficient manner. producing evidence to rebut a which materials and testimony are in
Second, the amended rule permits the presumption that documents produced camera. The ALJs and the Secretary
filing of other public documents, such from their files are authentic. For the need clearer authority to enforce
as public comments, in either paper or same reason the Commission also compliance with the existing rules by,
electronic form. If an electronic version adopted a rebuttable presumption that among other sanctions, denying in
is filed, it should be submitted by e- such documents were kept in the camera status to or rejecting documents
mail, rather than diskette. This method regular course of business, for purposes that do not comply with the rules.
of filing makes the document-handling of admissibility. This position has been Second, the ALJs need a defined
system more efficient and secure, repeated in subsequent cases, and procedure for dealing with mid-trial
eliminating problems caused by applied to documents produced by any requests for in camera treatment that
possible loss or mis-labeling of a corporation (including third parties). cannot be decided immediately because,
diskette. Documents which contain Nevertheless, in some proceedings for example, notice to a third party is
nonpublic information—other than counsel continue to raise objections to required. The ALJs typically extend
those filed formally before the the authenticity of their own documents temporary protection in such cases
Commission, or before an ALJ in (without producing affirmative evidence pursuant to their general authority to
adjudicative proceedings—must be filed calling authenticity into question) until regulate the course of the proceedings,
in paper from only, and must clearly be the ALJ is forced to make a ruling but this procedure should be set forth in
labeled as confidential. enforcing the Lenox presumption. This the rules of practice. This written
The Commission’s experience with practice wastes time and energy. procedure specifies, for example, how
electronic filing under the amended Expressly writing the Lenox and when the issue will be brought back
rules will assist in preparing for presumption into the rules might deter before the ALJ for a final determination.
compliance with the Government some of these objections. This will help assure that a party (or
Paperwork Elimination Act, Title XVII Accordingly, the amended rule third party) in fact makes the required
of Public Law 105–277 (Oct. 21, 1998), creates a second paragraph in Rule evidentiary showing to support all the
by the Act’s effective date in October 3.43(b) providing that a document in camera designations in the record.
2003. generated and produced by any person Finally, even if all the current
Service: Rule 4.4: In order to assure engaged in commerce is presumptively requirements are met it is often difficult
that complaint counsel receive copies of authentic, and presumptively was for Office of General Counsel staff (OGC)
pleadings as expeditiously as possible, prepared and kept in the regular course and the Commissioners’ offices to
the amended rule adds ‘‘lead complaint of business of the person generating or ascertain what materials are legitimately
counsel’’ to the list of parties to be producing the document, unless the part of the in camera record when the
served in Rule 4.4(b). A copy must also person introduces evidence tending to Commission’s opinions are ready for
be filed with the ALJ. rebut such a presumption. This rule release. Several additional steps
Rules 4.4(a)(3) and 4.4(b) are does not apply to Commission records. described below will assist the
expanded to provide explicitly for Public records are subject to separate, Commissioners in preparing opinions
service by overnight courier. specific rules in the Federal Rules of for public release, while adding only
Secretarial Service of Complaint Evidence, see Fed. R. Evid. 803(8–10), minimal burden to the parties.
Counsel Documents: The current and the Commission thinks it (1) Changes to Ensure Compliance
practice of having the Secretary serve appropriate to treat Commission records With Existing Rules: (a) Rule 3.46
documents filed by complaint counsel separately as well. For example, to the requires a party to indicate in post-trial
does not appear to be based on any rule extent the Lenox presumptions place a submissions the in camera status of
or statutory requirement. This burden on a producing party to exhibits and witness testimony offered
procedure adds delay and demonstrate that a particular document by that party and received into

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Federal Register / Vol. 66, No. 64 / Tuesday, April 3, 2001 / Rules and Regulations 17625

evidence.6 This information is an and opportunity to seek protection on camera treatment, moreover, serve a
invaluable aid for the ALJ and its own behalf. Failure to comply with useful purpose, allowing the case to
Commission in reviewing the these requirements subjects the proceed without sidebar interruptions
evidentiary record. The parties, noncomplying party to the additional or delays addressing peripheral
however, frequently fail to comply with sanctions adopted in rule 3.42(c). confidentiality issues. The rule is
these requirements. This failure (c) Parties have also incorrectly accordingly amended to provide express
impedes OGC’s in camera review of the asserted in camera status for pre-trial authority for this practice and specify a
Commission’s final opinion because motions or other documents that are not time period—twenty (20) days—within
staff must search the entire record for in being ‘‘offered into evidence.’’ The in which the party offering the evidence
camera rulings, including bench camera rules do not apply to such must take whatever steps are necessary
rulings, to determine the in camera documents. See Rule 3.45(b). Motions to present the matter to the ALJ for a
status of evidentiary materials discussed that seek pretrial or procedural rulings, final ruling. This might include
in the opinion. and that contain confidential matter, notifying any affected third party
To avoid such difficulties, the should be handled under the procedures submitters and giving them the
Commission is amending rule 3.42(c) to for protective orders, see Rule 3.31(d), opportunity to appear and make the
state explicitly that the ALJ may reject and should not be confused with in appropriate showing. If the 20-day time
written submissions that fail to comply camera matters. One aspect of the in period elapses without a motion to
with the rules in this Part, including camera rules that should equally apply support the in camera claim, the ALJ
Rule 3.46. in the protective order context, can exclude the evidence or deny in
(b) As noted above, parties sometimes however, is the requirement that parties camera status as appropriate in
submit material marked ‘‘in camera’’ submit both a public (redacted) and particular cases.
even though they have never sought or confidential) version of the relevant (3) Aids for the Release of
obtained a ruling from the ALJ that such documents. Such a requirement is now Commission Opinions and Formerly In
treatment is appropriate. These added to Rule 3.22(b) by adding the Camera Material: There are a number of
submitters may well assume that their words ‘‘or is subject to confidentiality relatively small measures that could
self-designated in camera submissions protections pursuant to a protective greatly assist the process of determining
will not thereafter be disclosed to the order’’ after ‘‘in camera status pursuant which portions of Commission opinions
public. Absent an affirmative ALJ ruling to § 3.45(b).’’ Corresponding changes are must be withheld from the public
granting such materials in camera made in Rules 3.22(c) and 3.45(d), (e) & record, and, in turn, of putting on the
status, however, the Commission may (f). public record material for which in
be free to place these materials on the Parties must also mark their camera or other confidentiality
public record, and to disclose them in confidential filings with brackets or protection has expired:
its final opinion, without advance similar conspicuous markings to (a) Submitters of in camera material
notification. indicate the material for which they are must provide, for each piece of such
Here the program may lie in part in claiming confidential treatment, so that evidence and affixed to such evidence,
an arguable gap in rule 3.45(b). The Rule Commission staff who use the a name and address of record for
indicates that an order is required to confidential versions of filings in notification purposes in the event the
withhold material from the public preparing or reviewing decisions in the Commission intends to release the in
record, and provides citations to the litigation are aware of which material camera material in a final adjudicative
legal standards on which the ALJ’s may be subject to protective order. This opinion, and must also update this
ruling is to be based. But the Rule does complements a similar rule change for information if necessary throughout the
not explicitly require the party seeking trial submissions discussed below. proceeding. This measure should
in camera status to make a motion for (2) Provisional Rulings: The current minimize unnecessary delay while staff
such an order. The requirement of a Rule 3.45(b) fails to accommodate attempts to determine whom to notify of
motion would seem to be fairly evident, situations in which the ALJ cannot rule a proposed release, when that
if not implicit, and in fact most parties on in camera issues at the time evidence information is not apparent from the in
do make such a motion. Parties that do is offered. This problem arises most camera document. For summaries,
not, however, may avoid (intentionally frequently when a party offers into tables and other evidentiary
or unintentionally) ever making the evidence at trial third party materials compilations the submitter should make
required evidentiary showing that in obtained through discovery and the clear which entity is to be notified with
camera treatment is appropriate and third party is not present to request in respect to each separate reference to in
obtaining a corresponding order. The camera treatment. As a matter of camera material.
Commission therefore is now making practice, the ALJ will grant provisional (b) A party or nonparty submitter
the requirement of a motion for in in camera status so that the testimony must mark its in camera submissions,
camera treatment explicit in rule can continue uninterrupted and will either with highlighting, brackets or
3.45(b). The Commission is also making instruct the introducing party to notify some other conspicuous marking, to
explicit a requirement that parties who the third party of the provisional grant show which material is claimed to be
seek to use material obtained from a and the need to file an application for confidential. In addition, each such
third party subject to confidentiality in camera treatment if it wants in submission should include as an
restrictions demonstrate that the third camera treatment extended beyond a
temporary period. exhibits and all papers and requests filed in the
party has been given adequate notice proceeding), and requires that it be made available
There is no statutory impediment to
to the parties. 5 U.S.C. 556. Under the APA, the
6 A party’s first statement of proposed findings of this practice.7 Provisional grants of in only adjudicative materials that agencies must
fact and conclusions of law must include both an routinely make available for public inspection and
exhibit index and a witness index specifying, 7 The Administrative Procedure Act (‘‘APA’’), 5 copying are final opinions, including concurring
among other things, each of that party’s exhibits U.S.C. 551 et seq., empowers the ALJs, inter alia, and dissenting opinions, and orders in
that have been accorded in camera treatment, 16 to regulate the course of the hearing. Id. at section adjudications. Id. at section 552(a)(2). Similarly, the
CFR 3.46(b)(7), and any portions of witness 556(c)(5); see also 16 CFR 3.42(c)(6) (conforming FTC Act requires only that the Commission’s
testimony offered by that party which the ALJ rule of practice). The APA specifies the content of ‘‘report’’ stating its findings be served on the
received in camera. Id. at 3.46(c)(4). an adjudicative record (i.e., transcript of testimony, parties. 15 U.S.C. 45(b).

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17626 Federal Register / Vol. 66, No. 64 / Tuesday, April 3, 2001 / Rules and Regulations

attachment a set of pages consisting in competitive injury if disclosed, and support by a ‘‘preponderance’’ of the
only of those pages on which the public access to the underlying basis for evidence.10
highlighted, bracketed, or otherwise Commission decisions. Removing the ‘‘substantial evidence’’
marked material appears. Individuals Expiration of in camera treatment language from § 3.51(c)(3) should help
involved in preparing the Commission’s three years after the ALJ’s designation eliminate such confusion. The parties’
final adjudicative opinion primarily rely would discourage blanket grants of burdens of proof are still clearly
on the complete, in camera versions of confidentiality by reminding the moving governed by the case law and both
parties’ briefs, proposed findings of fact parties that they bear a special burden section 556(d) of the APA and
and conclusions of law and other of showing why in camera treatment Commission Rule 3.43(a). Also, the Rule
written submissions, as well as the in should be accorded for any longer is streamlined by consolidating the
camera version of the ALJ’s initial period of time. See General Foods, 95 remainder of subsection (c)(3) into
decision. It has not always been F.T.C. at 353 & n.2 (and cases cited subsection (c)(1), which also deals with
apparent from such documents, therein); see also E.I. DuPont de the content of initial decisions.
however, which portions of the Nemours & Co., 1990 FTC LEXIS 134, Form of Briefs: Rules 3.52 and 4.2:
document are actually in camera. *2 (April 25, 1990) (applicants seeking The Commission has a longstanding
In camera review would be greatly in camera treatment must demonstrate interest, as no doubt other parties do as
facilitated if the in camera portions of ‘‘at the outset that the need for well, in trying to make briefs clearer and
party submissions and the ALJ’s initial confidentiality of the material is not more concise. Much time and paper has
decision were easily identifiable. likely to decrease over time’’). also been spent trying to address
Moreover, the inclusion of a separate set Consent Agreement Settlements: Rule outdated typeface and format rules.11
of pages consisting only of the pages on 3.25(c): As the Commission held in The complexity of the typical Part 3
which in camera or otherwise Textron, Inc., D. 9226 (April 14, 1993), case makes it very difficult to impose
confidential material appears would the Secretary’s authority to withdraw a rigid rules that would limit and simplify
greatly facilitate the later placement of matter from adjudication upon briefs. The Commission is attempting to
that material on the public record, once execution of a consent agreement by address these concerns, however, by
its in camera or otherwise confidential respondent and complaint counsel adopting three changes to conform the
status has expired. Requiring the parties should apply only when the matter is Commission’s rules more closely to the
to enclose in camera excerpts in still pending before an ALJ, not if the Federal Rules of Appellate Procedure
brackets, and to include such a separate matter is before the Commission. The and the local rules of many federal
attachment, should impose no circuit courts:
Rule is amended to reflect this holding
significant additional burden, because 1. Specification that the present
by inserting the words ‘‘and the matter
they must already identify such excerpts requirement of a ‘‘concise statement of
is still pending before an Administrative
when preparing the public versions of the case’’ in Rule 3.52(b)(2) means a
Law Judge’’ before ‘‘the Secretary shall
their submissions. concise summary of argument and
(c) in camera discussions in written issue an order’’ in Rule 3.25(c). A
concise statement of facts, following the
submissions must include record sentence is also added to the end of
model of Federal Rule of Appellate
citations to the relevant in camera Rule 3.25(c) providing that if the matter
Procedure 28(a)(6)–(8) and (b);
evidentiary materials and associated is pending before the Commission, the 2. The outmoded typeface, paper size,
ALJ in camera rulings. OGC and Commission may, on motion, in its margin and page limit provisions of
Commissioners’ staff sometimes cannot discretion, withdraw the matter from Rule 3.52 are eliminated and replaced
link purported in camera excerpts to a adjudication in order to consider a with word count limitations, as the
specific ALJ ruling granting such proposed consent agreement. Federal Rules of Appellate Procedure
treatment, either because there was no Closing the Record: Rule 3.44(c): The currently provide; and
such ruling or because the record is not second sentence of Rule 3.44(c) contains 3. The rule now specifically provides
sufficiently clear. a clerical error and should read ‘‘The that requests for extensions of the word
(d) The rule provides that in camera Administrative Law Judge shall retain limit are disfavored and will not be
orders lacking an expiration date will the discretion to permit or order granted absent compelling
expire three years after issuance.8 Most correction of the record as provided in circumstances.
ALJ in camera orders include an § 3.44(b).’’ The first amendment is intended to
expiration date, as required by Rule Appeals encourage parties to organize and
3.45(b)(3). However, in rare instances, in present their arguments clearly and
camera orders have been silent as to Scope of review: Rule 3.51(c)(3): Rule cogently. Although Rule 3.52(b) does
their duration. To avoid the undesirable 3.51(c)(3) provides that the initial presently require a ‘‘concise statement
result that an exhibit or testimony decision of an ALJ ‘‘shall be supported of the case,’’ as well as a ‘‘specification
would be accorded indeterminate in by reliable, probative and substantial
camera treatment without adequate evidence.’’ The term ‘‘substantial 10 See Cellular Tel. Co. v. Town of Oyster Bay, 166

justification, the Commission believes evidence’’ in this rule is meant to refer F. 3d 490, 492, 494 (2d. Cir. 1999); but cf. Standard
to the standard for agency decisions in Oil Co. of California, 84 F.T.C. 1401, 1446-47 (1974)
an automatic, default expiration of in (initial decision incorrectly applying appellate
camera treatment after three years section 556(d) of the Administrative review standard to complaint counsel’s case).
would strike an appropriate balance Procedure Act, which deals with the 11 Several parties have filed special pleadings

between maintaining the confidentiality quantum of evidence (in most cases a seeking relief from the requirements of or otherwise
of sensitive materials that would result preponderance) needed to support complaining about the typeface requirements. See,
findings of fact.9 The phrase in this e.g., Motion for an Extension of 30 Days to File
Appeal Brief and for Leave to Use Alternate
8 The Commission observed in General Foods, 95 context should not be confused with the Typeface, In re Summit Technology &VISX, Inc.,
F.T.C. 352, 353 (1980), that it ‘‘has usually denied ‘‘substantial evidence’’ standard for Docket No. 9286 (June 28, 1999); Order Granting
in camera treatment for data’’ that is more than judicial review of agency action, which Permission to File Brief in Times New Roman, 12­
three years old. (citing cases). ALJs routinely rely is more deferential and may not require Point Type, Toys-‘‘R’’-Us, Inc., Docket No. 9278
on this time frame when disposing of in camera (Dec. 9, 1997); Order Denying Complaint Counsel’s
applications. See, e.g., International Ass’n of Motion To Require Respondents To File Brief
Conference Interpreters, 123 F.T.C. 465, 469 (1996). 9 See Steadman v. SEC, 450 U.S. 91, 98 (1981). Complying With Rule 3.52(e), Id. (Nov. 12, 1997).

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Federal Register / Vol. 66, No. 64 / Tuesday, April 3, 2001 / Rules and Regulations 17627

of the questions intended to be urged,’’ pages. The new word limits for cross names and business addresses of all
the FRAP standards are somewhat more appeals are as follows: organization officials who vote on the
specific and are widely understood by Appellant’s opening brief—18,750 boxers’ ratings.13 The Act also requires
the bar. Specifically referring to and words (75 pages) the Commission to make such filings
incorporating these standards should Appellee/cross appellant’s answering ‘‘available to the public.’’ 14 The
lead to more uniform, concise and brief—26,250 words (105 pages) Commission is therefore amending Rule
comprehensible briefs. Appellant’s reply—18,750 words (75 4.9 by adding a new § 4.9(b)(10)(xiii) to
The word count limitations provide a pages) provide that such filings are part of its
simple, easily enforceable standard for Reply of cross-appellant—11,250 words public record. In addition, the
the length of briefs. They give the (45 pages)
Commission will routinely place such
parties an incentive to make their briefs This system still leaves each party
legible, avoiding devices such as smaller filings on its web site,,
with an equal number of pages, as in the along with the statement that the
fonts, excessive single-space footnotes current rule, but cuts the total number
or shaving of margins and spacing to get Commission has not reviewed or
of pages by the equivalent of 110 pages.
under a page limit. Consistent with the approved the filings.
practice in most appellate courts, the Miscellaneous Matters Finally, Rule 4.10(g), which provides
rule excludes the cover, table of The Office of the Secretary: Two other a procedure whereby the Commission
contents, table of authorities, glossaries, additions to the Rules will assist the may disclose certain confidential
and appendices containing only smooth functioning of the Office of the material in Commission administrative
sections of statutes or regulations, and Secretary. First, in addition to the ‘‘Rule or court proceedings only after notice to
the attachments required by Rule 11’’-type authority already in the Rule, the submitter, is amended by clarifying
3.45(e), if any, as well as the ‘‘proposed the Secretary should have the same in subsection (1) that a person or entity
form of order,’’ but includes footnotes authority as most court clerks to reject that submits material voluntarily in lieu
and all other citations. The parties documents for filing that fail to comply of process must designate such material
would be required to certify that their with Commission rules, such as the as confidential in order to gain the
submission complies with the failure to attach proof of service to a
applicable word count. protections of this Rule.
filing in an adjudicative proceeding, as
The conversion from page to word required by Rule 4.4(c). Such authority The Administrative Procedure Act
counts also provides an opportunity to is now placed in a new Rule 4.2(g). does not require prior public notice and
reconsider the appropriate length for Second, the Commission is formally comment on these amendments because
briefs filed with the Commission. Our promulgating a 5:00 rule—that is, that they relate solely to rules of agency,
present limit of 90 pages for a documents must be received by the organization, procedure or practice. 5
typewritten brief is higher than several Secretary’s office before 5:00 p.m. U.S.C. 553(b)(A). For this reason, the
of our sister agencies, such as the SEC Eastern time to be deemed filed that Regulatory Flexibility Act also does not
(60 pages) or CFTC (50 pages), but lower day. Any documents received at the require an initial or final regulatory
than the FERC (100 pages). The Federal agency after 5:00 p.m. will be deemed flexibility analysis. See 5 U.S.C. 603,
Rules of Appellate Procedure impose a filed the following day. This rule, added 604. To the extent these amendments
general limitation of 30 pages or 14,000 as Rule 4.3(d), will be consistent with relate to agency information collection
words for principal briefs. Views on the our current general practice, and with activities, they are exempt from review
appropriate page limits differ: some Rule 0.3, which provides that the offices
point to the complexity of recent Part 3 under the Paperwork Reduction Act.
of the Commission are open each See 44 U.S.C. 3518(c); 5 CFR 1320.4
cases and the extent of the business day from 8:30 a.m. to 5 p.m.
Commission’s de novo review authority (collections during the conduct of civil
The public record and nonpublic
and say a 90 page brief is virtually or administrative proceedings or
materials: The Commission is amending
unavoidable; others say that whatever Rule 4.9, which describes the public investigations). The Commission
the complexity of a case, effective record of the Commission, to implement nevertheless welcomes comment on
advocacy requires stating the case in portions of the Muhammed Ali Boxing these amendments and will consider
many fewer pages. Reform Act, Public Law 106–210, 114 further revision, if appropriate.
Although it is true that the Stat. 321 (2000) (to be codified at 15
Commission’s Part 3 cases tend to be List of Subjects
U.S.C. 6301 note, 6307a–6307h). That
complex, concerns about the length of statute provides, inter alia, that 16 CFR Part 2
briefs are more compelling. The professional boxing sanctioning
Commission accordingly sets the limit Administration practice and
organizations 12 must file with the
at 75 pages for principal briefs, which Commission, no later than January 31 of procedure, Investigations, Reporting and
converts to 18,750 words using the D.C. each year, the following information: (1) Recordkeeping Requirements.
Circuit standard of approximately 250 A complete description of the 16 CFR Part 3
words per page. The page limitations for organization’s ratings criteria, policies,
other briefs are reduced by a comparable and general sanctioning fee schedule; Administration practice and
amount. (2) the organization’s bylaws; (3) the procedure, Claims, Equal Access to
The page limitations for briefs in cross Justice, Lawyers.
appeals procedures that a boxer may use
appeals merit particular scrutiny. Under
to challenge his rating; and (4) the
the present rules, by filing a cross- 13 Section 11(d), 114 Stat. at 323 (codified at 15
appeal a party more than doubles the 12 The statute defines a ‘‘sanctioning U.S.C. 6307c). In lieu of filing such information
number of pages to which that party is organization’’ as an organization that ‘‘sanctions with the Commission, sanctioning organizations
entitled—from 90 to 205 pages. In professional boxing matches in the United States; may instead disclose it on a web site, so long as the
contrast, under the Federal Rules of (A) between boxers who are residents of different web site is readily accessible to the general public
states; or (B) that are advertised, otherwise using generally available search engines, and so
Appellate Procedure, a party filing a promoted, or broadcast (including closed circuit long as the site contains all of the above
cross appeal is permitted one additional television) in interstate commerce.’’ Section information. Id. at 324.
15-page brief, a fifty-percent increase in 7(a)(14), 114 Stat. at 328. 14 114 Stat. at 324.

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16 CFR Part 4 § 3.21 Prehearing procedures. the pleadings and any depositions,
Administration practice and * * * * * answers to interrogatories, admissions
procedure, Freedom of Information Act, (b) Scheduling conference. Not later on file, and affidavits show that there is
Privacy Act, Sunshine Act. than fourteen (14) days after the answer no genuine issue as to any material fact
For the reasons set forth in the is filed by the last answering and that the moving party is entitled to
preamble, the Federal Trade respondent, the Administrative Law such decision as a matter of law.* * *
Commission amends Title 16, Chapter I, Judge shall hold a scheduling * * * * *
Subchapter A, of the Code of Federal conference * * * 8. Amend § 3.25 by revising paragraph
Regulations, as follows: * * * * * (c) as follows:
6. Amend § 3.22 by revising paragraph
PART 2—NONADJUDICATIVE § 3.25 Consent agreement settlements.
(b) and the second sentence of
PROCEDURES paragraph (c) to read as follows: * * * * *
(c) If the proposed consent agreement
1. The authority citation for Part 2 § 3.22 Motions. accompanying the motion has also been
continues to read as follows: * * * * * executed by complaint counsel,
Authority: 15 U.S.C. 46, unless otherwise (b) Content. All written motions shall including the appropriate Bureau
noted. state the particular order, ruling, or Director, and the matter is still pending
2. Amend § 2.41(a) to add a new action desired and the grounds therefor. before an Administrative Law Judge, the
second sentence to read as follows: They must also include the name, Secretary shall issue an order
address, telephone number, fax number, withdrawing from adjudication those
§ 2.41 Reports of compliance.
and e-mail address (if any) of counsel portions of the matter that the proposal
(a) * * * An original and one copy of and attach a draft order containing the would resolve and all proceedings
each such report shall be filed with the proposed relief. If a party includes in a before the Administrative Law Judge
Secretary of the Commission, and one motion information that has been shall be stayed with respect to such
copy of each such report shall be filed granted in camera status pursuant to portions, pending a determination by
with the Associate Director for § 3.45(b) or is subject to confidentiality the Commission pursuant to paragraph
Enforcement in the Bureau of Consumer protections pursuant to a protective (f) of this section. If the matter is
Protection (for consumer protection order, the party shall file two versions pending before the Commission, the
orders) or with the Assistant Director for of the motion in accordance with the Commission in its discretion may, on
Compliance in the Bureau of procedures set forth in § 3.45(e). The motion, issue an order withdrawing
Competition (for competition orders). party shall mark its confidential filings from adjudication those portions of the
* * * with brackets or similar conspicuous matter that a proposed consent
PART 3—RULES OF PRACTICE FOR markings to indicate the material for agreement would resolve for the
ADJUDICATIVE PROCEEDINGS which it is claiming confidential purpose of considering the proposed
treatment. The time period specified by consent agreement.
3. The authority citation for Part 3 § 3.22(c) within which an opposing * *
* * *
continues to read as follows: party may file an answer will begin to 9.–10. Amend § 3.31 as follows:
Authority: 15 U.S.C. 46, unless otherwise run upon service on that opposing party a. By adding the following paragraph
noted. of the confidential version of the (b)(3),
4. Revise § 3.12(a) to read as follows: motion. b. Revising paragraph (c)(4)(i)
(c) Answers. * * * If an opposing introductory text, and
§ 3.12 Answer. party includes in an answer information c. Removing paragraph (c)(4)(iii).
(a) Time for filing. A respondent shall that has been granted in camera status The addition and revision read as
file an answer within twenty (20) days pursuant to § 3.45(b) or is subject to follows:
after being served with the complaint; confidentiality protections pursuant to a
Provided, however, That the filing of a protective order, the opposing party § 3.31 General provisions.
motion permitted under these Rules shall file two versions of the answer in * * * * *
shall alter this period of time as follows, accordance with the procedures set (b) Initial disclosures.* * *
unless a different time is fixed by the forth in § 3.45(e). * * * (3) In addition to the disclosures
Administrative Law Judge: * * * * * required by paragraphs (b)(1) and (2), of
(1) If the motion is denied, the answer 7. Amend § 3.24 by revising the fourth this section, the parties shall disclose to
shall be filed within ten (10) days after and fifth sentences of paragraph (a)(2) as each other the identity of any person
service of the order or denial or thirty follows: who may be used at trial to present
(30) days after service of the complaint, evidence as an expert. Except as
whichever is later; § 3.24 Summary decisions. otherwise stipulated or directed by the
(2) If a motion for more definite (a) * * * (2) * * * If a party includes Administrative Law Judge, this
statement of the charges is granted, in in any such brief or memorandum disclosure shall, with respect to a
whole or in part, the more definite information that has been granted in witness who is retained or specially
statement of the charges shall be filed camera status pursuant to § 3.45(b) or is employed to provide to a witness who
within ten (10) days after service of the subject to confidentiality protections is retained or specially employed to
order granting the motion and the pursuant to a protective order, the party provide expert testimony in the case or
answer shall be filed within ten (10) shall file two versions of the document whose duties as an employee of the
days after service of the more definite in accordance with the procedures set party regularly involve giving expert
statement of the charges. forth in § 3.45(e). The decision sought testimony, be accompanied by a written
* * * * * by the moving party shall be rendered report prepared and signed by the
5. Amend § 3.21 by revising the first within thirty (30) days after the witness. The report shall contain a
sentence of paragraph (b) to read as opposition or any final brief ordered by complete statement of all opinions to be
follows: the Administrative Law Judge is filed, if expressed and the basis and reasons

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Federal Register / Vol. 66, No. 64 / Tuesday, April 3, 2001 / Rules and Regulations 17629

therefor; the data or other information subpoenas to be served in a foreign 14. Amend § 3.39 by revising the first
considered by the witness in forming country, which may be authorized only sentence of paragraph (a), introducing
the opinions; any exhibits to be used as in accordance with § 3.36. text to read as follows:
a summary of or support for the 13. Revise § 3.36 to read as follows:
opinions; the qualifications of the § 3.39 Orders requiring witnesses to
§ 3.36 Applications for subpoenas for testify or provide other information and
witness, including a list of all granting immunity.
publications authored by the witness records, or appearances by officials or
within the preceding ten years; the employees, of governmental agencies other (a) Where Commission complaint
than the Commission, and subpoenas to be counsel desire the issuance of an order
compensation to be paid for the study served in a foreign country.
and testimony; and a listing of any other requiring a witness or dependent to
(a) Forms. an application for issuance testify or provide other information and
cases in which the witness has testified
of a subpoena for the production of granting immunity under 18 U.S.C.
as an expert at trial or by deposition
documents, as defined in § 3.34(b), or 6002, Directors and Deputy Directors of
within the preceding four years. These
for the issuance of a subpoena requiring Bureaus, Assistant Directors in the
disclosures shall be made at the times
access to documents or other tangible Bureau of Competition, Associate
and in the sequence directed by the
things, for the purposes described in Directors in the Bureau of Consumer
Administrative Law Judge. In the
§ 3.37(a), in the possession, custody, or Protection, and Regional Directors and
absence of other directions from the
control of a governmental agency other Assistant Regional Directors of
Administrative Law Judge or stipulation
than the Commission or the officials or Commission Regional Offices having
by the parties, the disclosures shall be
employees of such other agency, or for responsibility for presenting evidence in
made at least 90 days before the trial
the issuance of a subpoena requiring the support of the complaint are authorized
date or the date the case is to be ready
appearance of an official or employee of to determine: * * *
for trial or, if the evidence is intended
another governmental agency, or for the 15. Amend § 3.42 as follows:
solely to contradict or rebut proposed
issuance of a subpoena to be served in a. Removes the ‘‘and’’ at the end of
expert testimony on the same subject
a foreign country, shall be made in the paragraph (c)(10);
matter identified by another party under
form of a written motion filed in
this paragraph, within 30 days after the b. Redesignating present paragraph
accordance with the provisions of
disclosure made by the other party. (c)(11) as paragraph (c)(12) and
§ 3.22(a). No application for records
* * * * * c. adding new paragraph (c)(11) the
pursuant to § 4.11 of this chapter or the
(c) * * * additional reads as follows:
Freedom of Information Act may be
(4) Hearing Preparation: Experts. (i) A filed with the Administrative Law § 3.42 Presiding officials.
party may depose any person who has Judge.
been identified as an expert whose * * * * *
(b) Content. The motion shall satisfy (c) * * *
opinions may be presented at trial. If a the same requirements for a subpoena
report from the expert is required under (11) To reject written submissions that
under § 3.34 or a request for production fail to comply with rule requirements,
§ 3.31(b)(3), the deposition shall not be or access under § 3.37, together with a
conducted until after the report is or deny in camera status without
specific showing that: prejudice until a party complies with all
provided. (1) The material sought is reasonable
* * * * * relevant rules; and
in scope:
11. Amend § 3.33 by adding a (2) If for purposes of discovery, the * * * * *
sentence to the end of paragraph (a) to material falls within the limits of 16. Amend § 3.43 by revising
read as follows: discovery under § 3.31(c)(1), or, if for an paragraph (b) to read as follows:
adjudicative hearing, the material is
§ 3.33 Depositions. § 3.34 Evidence.
reasonably relevant;
(a) In general. * * * The parties may (3) The information or material sought * * * * *
stipulate in writing or the cannot reasonably be obtained by other (b) Admissibility; exclusion of
Administrative Law Judge may upon means; and relevant evidence; mode and order of
motion order that a deposition be taken (4) With respect to subpoenas to be interrogation and presentation. (1)
by telephone or other remote electronic served in a foreign country, that the Relevant, material, and reliable
means. A deposition taken by such party seeking discovery has a good faith evidence shall be admitted. Irrelevant,
means is deemed taken at the place belief that the discovery requested immaterial, and unreliable evidence
where the deponent is to answer would be permitted by treaty, law, shall be excluded. Evidence, even if
questions. custom or practice in the country from relevant, may be excluded if its
* * * * * which the discovery is sought and that probative value is substantially
12. Amend § 3.34 by revising the any additional procedural requirements outweighed by the danger of unfair
heading and last sentence of paragraph have been or will be met before the prejudice, confusion of the issues, or if
(c) to read as follows: subpoena is served. the evidence would be misleading, or by
(c) Execution. If an ALJ issues an considerations of undue delay, waste of
§ 3.34 Subpoenas. Order authorizing a subpoena pursuant time, or needless presentations of
* * * * * to this section, the moving party may cumulative evidence. The
(c) Motions to quash; limitation on forward to the Secretary a request for Administrative Law Judge shall exercise
subpoenas subject to § 3.36. * * * the authorized subpoena, with a copy of reasonable control over the mode and
Nothing in paragraphs (a) and (b) of this the authorizing Order attached. Each order of interrogating witnesses and
section authorizes the issuance of such subpoena shall be signed by the presenting evidence so as to—
subpoenas requiring the appearance of, Secretary; shall have attached to it a (i) Make the interrogation and
or the production of documents in the copy of the authorizing Order; and shall presentation effective for the
possession, custody, or control of, an be served by the moving party only in ascertainment of the truth.
official or employee of a governmental conjunction with a copy of the (ii) Avoid needless consumption of
agency other than the Commission, or authorizing Order. time; and

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(iii) Protect witnesses from H.P. Hood & Sons, Inc., 58 F.T.C. 1184, confidential information or general
harassment or undue embarrassment. 1188 (1961); see also Bristol-Myers Co., statements based on the content of such
(2) As respondents are in the best 90 F.T.C. 455, 456 (1977), which information.
position to determine the nature of established a three-part test that was (e) When in camera or confidential
documents generated by such modified by General Foods Corp., 95 information is included in briefs and
respondents and which come from their F.T.C. 352, 355 (1980). The party other submissions. If a party includes
own files, the burden of proof is on the submitting material for which in camera specific information that has been
respondent to introduce evidence to treatment is sought must provide, for granted in camera status pursuant to
rebut a presumption that such each piece of such evidence and affixed § 3.45(b) or is subject to confidentiality
documents are authentic and kept in the to such evidence, the name and address protections pursuant to a protective
regular course of business. See Lenox, of any person who should be notified in order in any document filed in a
Inc., 73 F.T.C. 578, 603–04 (1968. the event that the Commission intends proceeding under this part, the party
* * * * * to disclose in camera information in a shall file two versions of the document.
17. Amend § 3.44 by revising the last final decision. No material, or portion A complete version shall be marked ‘‘In
sentence of paragraph (c) to read as thereof, offered into evidence, whether Camera’’ or ‘‘Subject to Protective
follows: admitted or rejected, may be withheld Order,’’ as appropriate, on the first page
from the public record unless it falls and shall be filed with the Secretary and
§ 3.44 Record. within the scope of an order issued in served by the party on the other parties
* * * * * accordance with this section, stating the in accordance with the rules in this part.
(c) Closing of the hearing record. date on which in camera treatment will Submitters of in camera or other
* * * The Administrative Law Judge expire, and including: confidential material should mark any
shall retain the discretion to permit or (1) A description of the material; such material in the complete versions
order correction of the record as (2) A statement of the reasons for of their submissions in a conspicuous
provided in § 3.44(b). granting in camera in treatment; and matter, such as with highlighting or
(3) A statement of the reasons for the bracketing. References to in camera or
* * * * * date on which in camera treatment will confidential material must be supported
18. Revise § 3.45 to read as follows: expire. Such expiration date may not be by record citations to relevant
omitted except in unusual evidentiary materials and associated
§ 3.45 In camera orders.
circumstances, in which event the order ALJ in camera or other confidentiality
(a) Definition. Except as hereinafter shall state with specificity the reasons rulings to confirm that in camera or
provided, material made subject to an in why the need for confidentiality of the other confidential treatment is
camera order will be kept confidential material, or portion thereof at issue is warranted for such material. In addition,
and not placed on the public record of not likely to decrease over time, and any the document must include an
the proceeding in which it was other reasons why such material is attachment containing a copy of each
submitted. Only respondents, their entitled to in camera treatment for an page of the document in question on
counsel, authorized Commission indeterminate period. If an in camera which in camera or otherwise
personnel, and court personnel order is silent as to duration, without confidential excerpts appear, and
concerned with judicial review may explanation, then it will expire three providing the name and address of any
have access thereto, provided that the years after its date of issuance. Material person who should be notified of the
Administrative Law Judge, the subject to an in camera order shall be Commission’s intent to disclose in a
Commission and reviewing courts may segregated from the public record and final decision any of the in camera or
disclose such in camera material to the filed in a sealed envelope, or other otherwise confidential information in
extent necessary for the proper appropriate container, bearing the title, the document. Any time period within
disposition of the proceeding. the docket number of the proceeding, which these rules allow a party to
(b) In camera treatment of material. A the notation ‘‘In Camera Record under respond to a document shall run from
party or third party may obtain in § 3.45,’’ and the date on which in the date the party is served with the
camera treatment for material, or camera treatment expires. If the complete version of the document. An
portions thereof, offered into evidence Administrative Law Judge has expurgated version of the document,
only by motion to the Administrative determined that in camera treatment marked ‘‘Public Record’’ on the first
Law Judge. Parties who seek to use should be granted for an indeterminate page and omitting the in camera and
material obtained from a third party period, the notation should state that confidential information and attachment
subject to confidentiality restrictions fact. that appear in the complete version,
must demonstrate that the third party (c) Release of in camera material. In shall be filed with the Secretary within
has been given at least ten (10) days camera material constitutes part of the five (5) days after the filing of the
notice of the proposed use of such confidential records of the Commission complete version, unless the
material. Each such motion must and is subject to the provisions of § 4.11 Administrative Law Judge or the
include an attachment containing a of this chapter. Commission directs otherwise, and shall
copy of each page of the document in (d) Briefs and other submissions be served by the party on the other
question on which in camera or referring to in camera or confidential parties in accordance with the rules in
otherwise confidential excerpts appear. information. Parties shall not disclose this part. The expurgated version shall
The Administrative Law Judge may information that has been granted in indicate any omissions with brackets or
order that such material, whether camera status pursuant to § 3.45(b) or is ellipses, and its pagination and
admitted or rejected, be placed in subject to confidentiality protections depiction of text on each page shall be
camera only after finding that its public pursuant to a protective order in the identical to that of the in camera
disclosure will likely result in a clearly public version of proposed findings, version.
defined, serious injury to the person, briefs, or other documents. This (f) When in camera or confidential
partnership or corporation requesting in provision does not preclude references information is included in rulings or
camera treatment. This finding shall be in such proposed finds, briefs, or other recommendations of the Administrative
based on the standard articulated in documents to in camera or other Law Judge. If the Administrative Law

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Judge includes in any ruling or § 3.51 Initial decision. appellee may file an answering brief,
recommendation information that has * * * * * which shall contain a subject index,
been granted in camera status pursuant (c) Content. (1) An initial decision with page references, and a table of
to § 3.45(b) or is subject to shall be based on a consideration of the cases (alphabetically arranged),
confidentiality protections pursuant to a whole record relevant to the issues textbooks, statutes, and other material
protective order, the Administrative decided, and shall be supported by cited, with page references thereto, as
Law Judge shall file two versions of the reliable and probative evidence. * * * well as arguments in response to the
ruling or recommendation. A complete * * * * * appellant’s appeal brief. However, if the
version shall be marked ‘‘In Camera’’ or 21. Revise § 3.52 to read as follows: appellee is also cross-appealing, its
‘‘Subject to Protective Order,’’ as answering brief shall also contain its
appropriate, on the first page and shall § 3.52 Appeal from initial decision. arguments as to any issues the party is
be served upon the parties. The (a) Who may file; notice of intention. raising on cross-appeal, including the
complete version will be placed in the Any party to a proceeding may appeal points of fact and law relied upon in
in camera record of the proceeding. An an initial decision to the Commission by support of its position on each question,
expurgated version, to be filed within filing a notice of appeal with the with specific page references to the
five (5) days after the filing of the Secretary within ten (10) days after record and legal or other material on
complete version, shall omit the in service of the initial decision. The which the party relies in support of its
camera and confidential information notice shall specify the party or parties cross-appeal, and a proposed form of
that appears in the complete version, against whom the appeal is taken and order for the Commission’s
shall be marked ‘‘Public Record’’ on the shall designate the initial decision and consideration instead of the order
first page, shall be served upon the order or part thereof appealed from. If contained in the initial decision. If the
parties, and shall be included in the a timely notice of appeal is filed by a appellee does not cross-appeal, its
public record of the proceeding. party, any other party may thereafter file answering brief shall not, without leave
(g) Provisional in camera rulings. The a notice of appeal within five (5) days of the Commission, exceed 18,750
Administrative Law Judge may make a after service of the first notice, or within words. If the appellee cross-appeals, its
provisional grant of in camera status to ten (10) days after service of the initial brief in answer and on cross-appeal
materials if the showing required in decision, whichever period expires last. shall not, without leave of the
§ 3.45(b) cannot be made at the time the (b) Appeal brief. The appeal shall be Commission, exceed 26,250 words. The
material is offered into evidence but the in the form of a brief, filed within thirty word count limitations of this paragraph
Administrative Law Judge determines (30) days after service of the initial include all footnotes and other
that the interests of justice would be decision, and shall contain, in the order substantive matter but exclude the
served by such a ruling. Within twenty indicated, the following: cover, table of contents, table of
(20) days of such a provisional grant of (i) A subject index of the matter in the authorities, glossaries, proposed form of
in camera status, the party offering the brief, with page references, and a table order, appendices containing only
evidence or an interested third party of cases (alphabetically arranged), sections of statutes or regulations, and
must present a motion to the textbooks, statutes, and other material any attachment required by § 3.45(e).
Administrative Law Judge for a final cited, with page references thereto;
(ii) A concise statement of the case, (d) Reply brief. Within seven (7) days
ruling on whether in camera treatment after service of the appellee’s answering
which includes a statement of facts
of the material is appropriate pursuant brief, the appellant may file a reply
relevant to the issues submitted for
to § 3.45(b). If no such motion is filed, brief, which shall be limited to rebuttal
review, and a summary of the argument,
the Administrative Law Judge may of matters in the answering brief and
which must contain a succinct, clear,
either exclude the evidence, deny in shall not, without leave of the
and accurate statement of the arguments
camera status, or take such other action Commission, exceed 18,750 words. If
made in the body of the brief, and
as is appropriate. the appellee has cross-appealed, any
which must not merely repeat the
19. Amend § 3.46 by revising the last argument headings; party who is the subject of the cross-
sentence of paragraph (b)(7) and the last (iii) A specification of the questions appeal may, within thirty (30) days after
sentence of paragraph (c)(4) to read as intended to be urged; service of such appellee’s brief, file a
follows: (iv) The argument presenting clearly reply brief, which shall be limited to
the points of fact and law relied upon rebuttal of matters in the appellee’s brief
§ 3.46 Proposed findings, conclusions and in support of the position taken on each and shall not, without leave of the
order. Commission, exceed 18,750 words. The
question, with specific page references
* * * * * to the record and the legal or other appellee who has cross-appealed may,
(b) * * * material relied upon; and within seven (7) days after service of a
(7) * * * A statement whether the (v) A proposed form of order for the reply to its cross-appeal, file an
exhibit has been accorded in camera Commission’s consideration instead of additional brief, which shall be limited
treatment, and a citation to the in the order contained in the initial to rebuttal of matters in the reply to its
camera ruling. * * * decision. cross-appeal and shall not, without
(c) * * * (2) The brief shall not, without leave leave of the Commission, exceed 11,250
of the Commission, exceed 18,750 words. The word count limitations of
(4) * * * A statement identifying any
words, including all footnotes and other this paragraph include all footnotes and
portion of the witness’ testimony that
substantive matter but excluding the other substantive matter but exclude the
was received in camera, and a citation
cover, table of contents, table of cover, table of contents, table of
to the in camera ruling.
authorities, glossaries, proposed form of authorities, glossaries, proposed form of
* * * * * order, appendices containing only order, appendices containing only
20. Amend § 3.51 by removing sections of statutes or regulations, and sections of statutes or regulations, and
paragraph (c)(3) and adding a sentence any attachment required by § 3.45(e). any attachment required by § 3.45(e). No
to the beginning of paragraph (c)(1) to (c) Answering brief. Within thirty (30) further briefs may be filed except by
read as follows: days after service of the appeal brief, the leave of the Commission.

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17632 Federal Register / Vol. 66, No. 64 / Tuesday, April 3, 2001 / Rules and Regulations

(e) In camera information. If a party argument may participate in the would result from complying with the
includes in any brief to be filed under consideration and decision of the appeal existing limit.
this section information that has been in any case in which the oral argument
granted in camera status pursuant to is stenographically reported. The PART 4—MISCELLANEOUS RULES
§ 3.45(b) or is subject to confidentiality purpose of oral argument is to
provisions pursuant to a protective emphasize and clarify the written 22. Revise the authority citation for
order, that party shall file two versions argument appearing in the briefs and to Part 4 to read as follows:
of the brief in accordance with the answer questions. Reading at length Authority: 15 U.S.C. 46, unless otherwise
procedures set forth in § 3.45(e). The from the briefs or other texts is not noted.
time period specified by this section favored. 23. Revise § 4.2 to read as follows:
within which a party may file an (i) Corrections in transcript of oral
answering or reply brief will begin to argument. The Commission will § 4.2 Requirements as to form, and filing
run upon service on the party of the in of documents other than correspondence.
entertain only joint motions of the
camera or confidential version of a parties requesting corrections in the (a) Filing. (1) Except as otherwise
brief. transcript of oral argument, except that provided, all documents submitted to
(f) Signature. (1) The original of each the Commission will receive a unilateral the Commission, including those
brief filed shall have a hand-signed motion which recites that the parties addressed to the Administrative Law
signature by an attorney of record for have made a good faith effort to Judge, shall be filed with the Secretary
the party, or in the case of parties not stipulate to the desired corrections but of the Commission; Provided, however,
represented by counsel, by the party have been unable to do so. If the parties That informal applications or requests
itself, or by a partner if a partnership, agree in part and disagree in part, they may be submitted directly to the official
or by an officer of the party if it is a should file a joint motion incorporating in charge of any Bureau, Division, or
corporation or an unincorporated the extent of their agreement, and, if Office of the Commission, or to the
association. desired, separate motions requesting Administrative Law Judge.
(2) Signing a brief constitutes a those corrections to which they have (2) Documents submitted to the
representation by the signer that he or Commission in response to a Civil
been unable to agree. The Secretary,
she has read it; that to the best of his Investigative Demand under section 20
pursuant to delegation of authority by
or her knowledge, information, and of the FTC Act shall be filed with the
the Commission, is authorized to
brief, the statements made in it are true; custodian or deputy custodian named in
prepare and issue in the name of the
that it is not interposed for delay; that the demand.
Commission a brief ‘‘Order Correcting
it complies with the applicable word
Transcript’’ whenever a joint motion to (b) Title. Documents shall clearly
count limitation; and that to the best of
correct transcript is received. show the file or docket number and title
his or her knowledge, information, and
(j) Briefs of amicus curiae. A brief of of the action in connection with which
belief, it complies with the other rules
an amicus curiae may be filed by leave they are filed.
in this part. If a brief is not signed or
is signed with intent to defeat and of the Commission granted on motion (c) Paper and electronic copies of and
purpose of this section, it may be with notice to the parties or at the service of filings before the Commission,
stricken as sham and false and the request of the Commission, except that and of filings before an ALJ in
proceeding may go forward as though such leave shall not be required when adjudicative proceedings. (1) Except as
the brief has not been filed. the brief is presented by an agency or otherwise provided, each document
(g) Designation of appellant and officer of the United States; or by a filed before the Commission, whether in
appellee in cases involving cross- State, territory, commonwealth, or the an adjudicative or a nonadjudicative
appeals. In a case involving an appeal District of Columbia, or by an agency or proceeding, shall be filed the Secretary
by complaint counsel and one or more officer of any of them. The brief may be of the Commission, and shall include a
respondents, any respondent who has conditionally field with the motion for paper original, twelve (12) paper copies,
filed a timely notice of appeal and as to leave. A motion for leave shall identify and an electronic copy (in ASCII format,
whom the Administrative Law Judge the interest of the applicant and state WordPerfect, or Microsoft Word).
has issued an order to cease and desist how a Commission decision in the Except as otherwise provided, each
shall be deemed an appellant for matter would affect the applicant or document filed by a party in an
purposes of paragraphs (b), (c), and (d) persons it represents. The motion shall adjudicative proceeding before an ALJ
of this section. In a case in which the also state the reasons why a brief of an shall be filed with the Secretary of the
Administrative Law Judge has amicus curiae is desirable. Except as Commission, and shall include a paper
dismissed the complaint as to all otherwise permitted by the Commission, original, one (1) paper copy and an
respondents, complaint counsel shall be an amicus curiae shall file its brief electronic copy (in ASCII format,
deemed the appellant for purposes of within the time allowed the parties WordPerfect, or Microsoft Word).
paragraphs (b), (c), and (d) of this whose position as to affirmance or (2) The first page of the paper original
section. reversal the amicus brief will support. of each such document shall be clearly
(h) Oral argument. All oral arguments The Commission shall grant leave for a labeled either public, or in camera or
shall be public unless otherwise ordered later filing only for cause shown, in confidential. If the document is labeled
by the Commission. Oral arguments will which event it shall specify within what in camera or confidential, it must
be held in all cases on appeal to the period such brief must be filed. A include as an attachment either a
Commission, unless the Commission motion for an amicus curiae to motion requesting in camera or
otherwise orders upon its own initiative participate in oral argument will be otherwise confidential treatment, in the
or upon request of any party made at the granted only for extraordinary reasons. form prescribed by § 3.45(b), or a copy
time of filing his brief. Oral arguments (k) Extension of word count of a Commission, ALJ, or federal court
before the Commission shall be reported limitation. Extensions of word count order granting such treatment. The
stenographically, unless otherwise limitation are disfavored, and will only document must also include as a
ordered, and a member of the be granted where a party can make a separate attachment a set of only those
Commission absent from an oral strong showing that undue prejudice pages of document on which the in

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Federal Register / Vol. 66, No. 64 / Tuesday, April 3, 2001 / Rules and Regulations 17633

camera or otherwise confidential or by an officer of the party if it is a Part 3, to the lead complaint counsel,
material appears. corporation or an unincorporated that Assistant Director in the Bureau of
(3) The electronic copy of each such association. Competition, the Associate Director in
public document shall be filed by e- (2) Signing a document constitutes a the Bureau of Consumer Protection, or
mail, as the Secretary shall direct, in a representation by the signer that he or the Director of the Regional Office of
manner that is consistent with technical she has read it; that to the best of his compliant counsel, with a copy to the
standards, if any, that the Judicial or her knowledge, information, and Administrative Law Judge. Upon a party
Conference of the United States belief, the statements made in it are other than the Commission or
establishes, except that the electronic true; that it is not interposed for delay; Commission counsel, service shall be by
copy of each such document containing and that to the best of this or her personal delivery (including delivery by
in camera or otherwise confidential knowledge, information, and belief, it courier) or delivery by first-class mail
material shall be placed on a diskette so complies with the rules in this part. If with a copy to the Administrative Law
labeled, which shall be physically a document is not signed or is signed Judge. * * *
attached to the paper original, and not with intent to defeat the purposed of
transmitted by e-mail. The electronic this section, it may be stricken as sham (c) Proof of service. In an adjudicative
copy of all documents shall include a and false and the proceeding may go proceeding under the Commission’s
certification by the filing party that the forward as though the document had Rules of Practice, 16 CFR Part 3, papers
copy is a true and correct copy of the not been filed. presented for filing shall contain proof
paper original, and that a paper copy (g) Authority to reject documents for of service in the form of a statement of
with an original signature is being filed filing. The Secretary of the Commission the date and manner of service and of
with the Secretary of the Commission may reject a document for filing that the names of the persons served,
on the same day by other means. fails to comply with Commission’s certified by the person who made
(4) A paper copy of each such rules. In cases of extreme hardship, the service. Proof of service must appear on
document in an adjudicative proceeding Secretary may excuse compliance with or be affixed to the papers filed.
shall be served by the party filing the a rule regarding the filing of documents
document or person acting for that party 26. Amend § 4.9 by redesignating
if the Secretary determines that the non­ current paragraphs (b)(10)(xiii) and
on all other parties pursuant to § 4.4, at compliance would not interfere with the
or before the time the paper original is (b)(10)(xiv) as paragraph (b)(10)(xiv) and
functions of the Commission. (b)(10)(xv) and adding a new paragraph
(d) Paper and electronic copies of all 24. Amend § 4.3 by adding new (b)(10)(xiii) to read as follows:
other documents filed with the paragraph (d) to read as follows:
§ 4.9 The Public Record.
Commission. Except as otherwise § 4.3 Time.
provided, each document to which * * * * *
* * * * *
paragraph (c) of this section does not (b) Categories * * *
apply, such as public comments in (d) Date of filing. Documents must be
received in the office of the Secretary of (10) Miscellaneous * * *
Commission proceedings, may be filed
with the Commission in either paper or the Commission by 5:00 p.m. Eastern (xiii) Annual filings by professional
electronic form. If such a document time to be deemed filed that day. Any boxing sanctioning organizations as
contains nonpublic information, it must documents received by the agency after required by the Muhammed Ali Boxing
be filed in paper form with the Secretary 5:00 p.m. will be deemed filed the Reform Act, 15 U.S.C. 6301 note, 6307a–
of the Commission, and the first page of following business day. 6307h;
the document must be clearly labeled 25. Amend § 4.4 by revising paragraph * * * * *
confidential. If the document does not (a)(3), by revising the first and second
contain any nonpublic information, it sentences of paragraph (b) and by 27. Amend § 4.10 by revising
may instead be filed in electronic form revising paragraph (c) to read as follows: paragraph (g)(1) to read as follows:
(in ASCII format, WordPerfect, or § 4.4 Service. § 4.10 Nonpublic material.
Microsoft Word) by e-mail, as the
Commission or the Secretary may direct. (a) * * * * * * * *
(e) Form. (1) Documents filed with the (3) All documents served in (g) Material obtained by the
Secretary of the Commission, other than adjudicative proceedings under the Commission:
briefs in support of appeals from initial Commissions’ Rules of Practice, 16 CFR
Part 3, other than complaints and initial, (1) Through compulsory process and
decisions, shall be printed, typewritten, protected by section 21(b) of the Federal
or otherwise processed in permanent interlocutory, and final decisions and
orders, may be served by personal Trade Commission Act, 15 U.S.C. 57b–
form and on good unglazed paper. A 2(b) or voluntarily in lieu thereof and
motion or other paper filed in an delivery (including delivery by courier),
or by first-class mail, and shall be designated by the submitter as
adjudicative proceedings shall contain a confidential and protected by section
caption setting forth the title of the case, deemed served on the day of the
personal delivery or the day of mailing. 21(f) of the Federal Trade Commission
the docket number, and a brief Act, 15 U.S.C. 57b–2(f), and § 4.10(d) of
descriptive title indicating the purpose * * * * *
this part; or
of the paper. (b) By other parties. Service of
(2) Briefs filed on an appeal from an documents by parties other than the * * * * *
initial decision shall be in the form Commission shall be by delivering Dated: Approved by the Commission on
prescribed by § 3.52(e). copies thereof as follows: Upon the March 27, 2001.
(f) Signature. (1) The original of each Commission, by personal delivery By direction of the Commission.
document filed shall have a hand signed (including delivery by courier) or
Donald S. Clark,
signature by an attorney of record or the delivery by first-class mail to the Office
party, or in the case of parties not of the Secretary of the Commission and, Secretary.
represented by counsel, by the party in adjudicative proceedings under the [FR Doc. 01–8045 Filed 4–2–01; 8:45 am]
itself, or by a partner if a partnership, Commission’s Rules of Practice, 16 CFR BILLING CODE 6750–01–M

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