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Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations
international issues within the FTCs mandate; coordinating staff exchanges and internships at the FTC for staff of non-U.S. competition, consumer protection, and privacy agencies; and building capacity at other agencies around the world.
II. Revisions to Part 1, Subpart B
Rules and Rulemaking Under Section 18a1B of the FTC Act The Commission is revising part 1, subpart B of its rules to modernize the procedures governing rulemaking under Section 18a1B of the FTC Act, provide for efficient conduct of rulemaking proceedings, and to better reflect the requirements of the FTC Act.

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1.11: Commencement of a Rulemaking Proceeding The Commission is revising procedures under 1.11 for the initiation of rulemaking proceedings under Section 18a1B of the FTC
Act. Pursuant to these amendments, rulemaking proceedings will commence with the issuance of a notice of proposed rulemaking that will include the text of the proposed rule, a preliminary regulatory analysis and explanation of the Commissions proposal, and an invitation for interested persons to comment.
Pursuant to the requirements of the FTC
Act, the Commission will afford interested persons an opportunity to request an informal hearing in response to this notice and will identify disputed issues of material fact, if any, necessary to be resolved in the rulemaking proceeding.
Interested persons who request to present their position orally in an informal hearing must file a request with the Commission after issuance of a notice of proposed rulemaking. This request must include a statement identifying the persons interests in the proceeding and may propose additional disputed issues for resolution at the informal hearing.
1.12: Notices of Informal Hearings and Designations Section 18c2 of the FTC Act also provides an opportunity for interested persons to submit their views on a proposed rule orally at an informal hearing. 15 U.S.C. 57ac2. In 1.12, the Commission is amending the provisions governing the conduct of such proceedings. When an informal hearing is requested or the Commission determines in its discretion to hold one, the informal hearing will be initiated by a notice of informal hearing.
Pursuant to the amendments, the Commission will issue an initial notice
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of informal hearing to announce necessary details for an informal hearing, including the designation of a presiding officer, the time and place of the informal hearing, a final list of disputed issues of material fact to be resolved, and a list of persons who will make oral presentations. The initial notice of informal hearing will also invite interested persons to submit requests for cross-examination or to present rebuttal submissions.
Based upon submissions in response to the initial notice of informal hearing, the Commission will issue a final notice of informal hearing providing a list of interested persons who will conduct cross-examination regarding disputed issues of material fact, any groups with the same or similar interests who will be required to select a representative to conduct cross-examination on behalf of the group, and any interested persons who will be permitted to make rebuttal submissions.
To provide for the efficient conduct of informal hearings, the amendments retain provisions authorizing the Commission to group persons with similar interests and require the selection of a group representative to conduct cross-examination. The amended rules preserve the authority of the presiding officer to designate group representatives if a group of interested persons is unable to agree upon a representative and to entertain requests for an individual to conduct crossexamination on select issues that affect that persons particular interest if a designated group representative would not adequately represent their interests.
1.13: Conduct of Informal Hearing by the Presiding Officer The Commission is amending 1.13
to focus on the presiding officers powers and responsibilities for the orderly conduct of an informal hearing.
The amendments provide the presiding officer with the powers necessary to conduct effective and orderly informal hearings in rulemaking proceedings.
The amendments provide that the Commission will establish the time and location of informal hearings, select participants who shall provide oral presentations, and designate disputed issues of material fact, if any, that are to be resolved in the rulemaking proceedings. The presiding officer designated by the Commission will have the necessary powers to conduct hearings in an efficient manner, including the power to impose time limits on oral presentations and to select or modify representatives designated to conduct cross-examination. The amendments also provide that informal
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hearings will be limited to a total of 5
days over the course of a thirty-day period, unless Commission extends the time for conduct of a hearing upon a showing of good cause.
The amendments remove references to direct examination in informal hearings. Providing interested persons with the opportunity to present their positions orally does not require the formality of direct examination.
Consistent with Section 18 of the FTC
Act, the amended rules continue to allow an interested person to crossexamine those making oral presentations if appropriate and required to address disputed issues of material fact.
The amendments also remove procedures to allow the presiding officer to compel the attendance of persons, require the production of documents, or require responses to written questions.
The Commission believes that these procedures are unnecessary for the conduct of effective informal hearings in rulemaking proceedings and are inconsistent with the informal nature of such proceedings.
The revisions also eliminate the requirement that Commission staff publish a staff report containing an analysis of the rulemaking record and recommendations as to the form of the final rule for public comment. Such reports are not statutorily required in rulemaking proceedings under Section 18a1B, and the Commission believes that eliminating this requirement will provide for more efficient proceedings without undermining the Commissions ability to formulate effective rules. The amendments also eliminate provisions providing for an additional comment period on the presiding officers report on the rulemaking proceeding.
The proposed amendments eliminate procedures allowing interested persons to petition the Commission or to appeal rulings of the presiding officer during an informal hearing. These provisions add procedural complexity to informal hearings that are inconsistent with the informal nature of the rulemaking process. In addition, they are unnecessary given the enhanced role the Commission will play in establishing the agenda of the informal hearing and designating disputed issues, if any, for resolution at the informal hearing.
Instead, the amended rules provide a separate post-hearing process for petitions seeking Commission review of any rulings by the presiding officer denying or limiting the petitioners ability to conduct cross-examination or make rebuttal submissions.

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