part 511—adjudicative procedureslegismex.mty.itesm.mx/secc_inter/49cfr/49cfrpart511.pdf · 35...

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Nat’l Highway Traffic Safety Admin., DOT § 511.1

conferred by the National Traffic andMotor Vehicle Safety Act or the MotorVehicle Information and Cost SavingsAct, as appropriate, including institu-tion of judicial proceedings to enforcethe order and to collect civil penalties.

PART 511—ADJUDICATIVEPROCEDURES

Subpart A—Scope of Rules; Nature ofAdjudicative Proceedings, Definitions

Sec.511.1 Scope of the rules.511.2 Nature of adjudicative proceedings.511.3 Definitions.

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

511.11 Commencement of proceedings.511.12 Answer.511.13 Amendments and supplemental plead-

ings.511.14 Form and filing of documents.511.15 Time.511.16 Service.511.17 Public participation.511.18 Joinder of proceedings.

Subpart C—Prehearing Procedures; Mo-tions; Interlocutory Appeals; SummaryJudgment; Settlement

511.21 Prehearing conferences.511.22 Prehearing briefs.511.23 Motions.511.24 Interlocutory appeals.511.25 Summary decision and order.511.26 Settlement.

Subpart D—Discovery; Compulsory Process

511.31 General provisions governing discov-ery.

511.32 Written interrogatories to parties.511.33 Production of documents and things.511.34 Requests for admission.511.35 Testimony upon oral examination.511.36 Motions to compel discovery.511.37 Sanctions for failure to comply with

order.511.38 Subpoenas.511.39 Orders requiring witnesses to testify

or provide other information and grant-ing immunity.

Subpart E—Hearings

511.41 General rules.511.42 Powers and duties of Presiding Offi-

cer.511.43 Evidence.511.44 Expert witnesses.511.45 In camera materials.

511.46 Proposed findings, conclusions, andorder.

511.47 Record.511.48 Official docket.511.49 Fees.

Subpart F—Decision

511.51 Initial decision.511.52 Adoption of initial decision.511.53 Appeal from initial decision.511.54 Review of initial decision in absence

of appeal.511.55 Final decision on appeal or review.511.56 Reconsideration.511.57 Effective date of order.

Subpart G—Settlement Procedure in Casesof Violation of Average Fuel EconomyStandards

511.61 Purpose.511.62 Definitions.511.63 Criteria for settlement.511.64 Petitions for settlement; timing, con-

tents.511.65 Public comment.511.66 Confidential business information.511.67 Settlement order.

Subpart H—Appearances; Standards ofConduct

511.71 Who may make appearances.511.72 Authority for representation.511.73 Written appearances.511.74 Attorneys.511.75 Persons not attorneys.511.76 Qualifications and standards of con-

duct.511.77 Restrictions as to former members

and employees.511.78 Prohibited communications.

APPENDIX I—FINAL PREHEARING ORDER

AUTHORITY: 15 U.S.C. 2002; delegation of au-thority at 49 CFR 1.50.

SOURCE: 45 FR 81578, Dec. 11, 1980, unlessotherwise noted.

Subpart A—Scope of Rules; Na-ture of Adjudicative Proceed-ings, Definitions

§ 511.1 Scope of the rules.This part establishes rules of practice

and procedure for adjudicative proceed-ings conducted pursuant to section508(a)(2) of the Motor Vehicle Informa-tion and Cost Savings Act (15 U.S.C.Pub. L. 94–163, 89 Stat. 911, section2008(a)(2)), which are required by stat-ute to be determined on the recordafter opportunity for a public hearing.

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49 CFR Ch. V (10–1–98 Edition)§ 511.2

§ 511.2 Nature of adjudicative proceed-ings.

Adjudicative proceedings shall beconducted in accordance with title 5,U.S.C., sections 551 through 559 andthis part. It is the policy of the agencythat adjudicative proceedings shall beconducted expeditiously and with dueregard to the rights and interests of allpersons affected, and to the public in-terest. Therefore, the presiding officerand all parties shall make every effortat each stage of a proceeding to avoidunnecessary delay.

§ 511.3 Definitions.

(a) As used in this part:(1) The term application means an ex

parte request by a party for an orderthat may be granted or denied withoutopportunity for response by any otherparty.

(2) The term NHTSA means the Na-tional Highway Traffic Safety Admin-istration.

(3) The term Administrator means theAdministrator of the National HighwayTraffic Safety Administration.

(4) The term Complaint Counsel meansprosecuting counsel for the NHTSA.

(5) The term motion means a requestby a party for a ruling or order thatmay be granted or denied only after op-portunity for response by each affectedparty.

(6) The term party means the NHTSA,and any person named as a respondentin a proceeding governed by this part.

(7) The term person means any indi-vidual, partnership, corporation, asso-ciation, public or private organization,or Federal, State or municipal govern-mental entity.

(8) The term petition means a writtenrequest, made by a person or a partyand addressed to the Presiding Officeror the Administrator, that the ad-dressee take some action.

(9) The term Presiding Officer meansthe person who conducts an adjudica-tive hearing under this part, who shallbe an administrative law judge quali-fied under title 5, U.S.C., section 3105and assigned by the Chief Administra-tive Law Judge, Office of Hearings,United States Department of Transpor-tation.

(10) The term Respondent means anyperson against whom a complaint hasbeen issued.

(11) The term Office of Hearingsmeans the Officer of Hearings, Depart-ment of Transportation.

(12) The term staff means the staff ofthe National Highway Traffic SafetyAdministration.

(13) The term Chief AdministrativeLaw Judge means the Chief Administra-tive Law Judge of the Office of Hear-ings, Department of Transportation.

(14) The term Docket Section meansthe Docket Section, Office of the Sec-retary of Transportation.

[45 FR 81578, Dec. 11, 1980, as amended at 53FR 15782, May 3, 1988]

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

§ 511.11 Commencement of proceed-ings.

(a) Notice of institution of an enforce-ment proceeding. An adjudicative pro-ceeding under this part is commencedby the issuance of a complaint by theNHTSA.

(b) Form and content of complaint. Thecomplaint shall be signed by the Com-plaint Counsel and shall contain thefollowing:

(1) Recital of the legal authority forinstituting the proceeding, with spe-cific designation of the statutory pro-visions involved in each allegation.

(2) Identification of each respondent.(3) A clear and concise statement of

the charges, sufficient to inform eachrespondent with reasonable definite-ness of the factual basis of the allega-tions of violation. A list and summaryof documentary evidence supportingthe charges shall be attached.

(4) A statement of the civil penaltywhich the Complaint Counsel believesis in the public interest, or which is re-quired by law. In the case of civil pen-alties assessed for violations of section507(3) of the Motor Vehicle Informationand Cost Savings Act (15 U.S.C. 2007(3)),the amount of such penalty shall becalculated from the time of the allegedviolation. In the case of civil penaltiesassessed for violations of section 507 (1)or (2) of that Act, any monetary creditsavailable to offset those civil penaltiesshall be specified.


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(5) The right of the respondent to ahearing on the alleged violations.

(c) Notice to the public. Once a com-plaint is issued, notice of it shall beimmediately submitted to the FEDERALREGISTER for publication. The notice inthe FEDERAL REGISTER shall briefly de-scribe the nature of the proceeding andstate that petitions to participate inthe proceeding must be filed no laterthan the first prehearing conference.

§ 511.12 Answer.

(a) Time for filing. A respondent shallhave twenty (20) days after service of acomplaint within which to file an an-swer.

(b) Content of answer. An answer shallconform to the following:

(1) Request for hearing. Respondentshall state whether it requests a full,adjudicatory hearing or whether it de-sires to proceed on the basis of writtensubmissions. If a hearing is requested,respondent shall specify those issues onwhich a hearing is desired.

(2) Contested allegations. An answer inwhich the allegations of a complaintare contested shall contain:

(i) Specific admission or denial ofeach allegation in the complaint. If therespondent is without knowledge or in-formation sufficient to form a belief asto the truth of an allegation, respond-ent shall so state. Such a statementshall have the effect of a denial. Deni-als shall fairly meet the substance ofthe allegations denied. Allegations notthus answered shall be deemed to havebeen admitted.

(ii) A concise statement of the fac-tual and/or legal defenses to each alle-gation of the complaint.

(3) Admitted allegations. If the re-spondent admits or fails to deny anyfactual allegation, he or she shall bedeemed to have waived a hearing as tosuch allegation.

(c) Default. Failure of the respondentto file an answer within the time pro-vided (or within an extended time, ifprovided), shall be deemed to con-stitute a waiver of the right to appearand contest the allegations set forth inthe complaint and to authorize thePresiding Officer to make such findingsof fact as are reasonable under the cir-cumstances.

§ 511.13 Amendments and supple-mental pleadings.

Whenever determination of a con-troversy on the merits will be facili-tated thereby, the Presiding Officerupon motion, may allow appropriateamendments and supplemental plead-ings which do not unduly broaden theissues in the proceeding or cause unduedelay.

§ 511.14 Form and filing of documents.(a) Filing. Except as otherwise pro-

vided, all documents submitted to theAdministrator or a Presiding Officershall be filed with the Docket Section,Office of the Secretary, Department ofTransportation, Room 4107, 400 SeventhStreet, SW., Washington, DC 20590.Documents may be filed in person or bymail and shall be deemed filed on theday of filing or mailing.

(b) Caption. Every document shallcontain a caption setting forth thename of the action in connection withwhich it is filed, the docket number,and the title of the document.

(c) Copies. An original and nine (9)copies of all documents shall be filed.Documents may be reproduced byprinting or any other process, providedthat all copies filed are clear and leg-ible.

(d) Signature. (1) The original of eachdocument filed shall be signed by a rep-resentative of record for the party; orin the case of parties not represented,by the party; or by a partner, officer,or regular employee of any corpora-tion, partnership, or association, whofiles an appearance on behalf of theparty.

(2) The act of signing a documentconstitutes a representation by thesigner that the signer has read it; thatto the best of the signer’s knowledge,information and belief, the statementsmade in it are true; and that it is notfiled for purposes of delay.


§ 511.15 Time.(a) Computation. In computing any

period of time prescribed or allowed bythe rules in this part, the day of theact, event, or default from which thedesignated period of time begins to run


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49 CFR Ch. V (10–1–98 Edition)§ 511.16

shall not be included. The last day ofthe period so computed shall be in-cluded, unless it is a Saturday, a Sun-day, or a legal holiday, in which eventthe period runs until the end of thenext day which is not a Saturday, aSunday, or a legal holiday. When theperiod of time prescribed or allowed isless than 7 days, intermediate Satur-days, Sundays, and legal holidays shallbe excluded in the computation. Asused in this part, ‘‘legal holiday’’ in-cludes New Year’s Day, Washington’sBirthday, Memorial Day, IndependenceDay, Labor Day, Columbus Day, Veter-an’s Day, Thanksgiving Day, Christ-mas Day, and any other day appointedas a holiday by the President or theCongress of the United States.

(b) Additional time after service by mail.Whenever a party is required or per-mitted to do an act within a prescribedperiod after service of a document andthe document is served by mail, three(3) days shall be added to the pre-scribed period.

(c) Extensions. For good cause shown,the Presiding Officer may extend anytime limit prescribed or allowed underthis part or by order of the Adminis-trator or the Presiding Officer, exceptthose governing the filing of interlocu-tory appeals and appeals from InitialDecisions and those expressly requiringthe Administrator’s action. Except asotherwise provided by law, the Admin-istrator, for good cause shown, may ex-tend any time limit prescribed underthis part, or by order of the Adminis-trator or the Presiding Officer. A partyor participant may petition the Presid-ing Officer or the Administrator, as ap-propriate, for an extension under thisparagraph. Such a petition shall befiled prior to the occurrence of thetime limit which is the subject of thepetition.

§ 511.16 Service.

(a) Mandatory service. Every docu-ment filed with the Office of Hearingsshall be served upon all parties andparticipants to a proceeding, i.e., Com-plaint Counsel, respondent(s), and par-ticipants, and upon the Presiding Offi-cer.

(b) Service of complaint, ruling, order,decision, or subpoena. Service of a com-

plaint, ruling, order, decision, or sub-poena may be effected as follows:

(1) By registered or certified mail. Acopy of the document shall be ad-dressed to the person, partnership, cor-poration or unincorporated associationto be served at his or its residence orprincipal office or place of business;registered or certified; and mailed; or

(2) By delivery to an individual. A copyof the document may be delivered tothe person to be served; or to a memberof the partnership to be served; or tothe president, secretary, or other exec-utive officer, or a director of the cor-poration or unincorporated associationto be served; or to an agent authorizedby appointment or by law to receiveservice; or

(3) By delivery to an address. A copy ofthe document may be left at the prin-cipal office or place of business of theperson, partnership, corporation, unin-corporated association, or authorizedagent with an officer, a managing orgeneral agent; or it may be left with aperson of suitable age and discretionresiding therein, at the residence of theperson or of a member of the partner-ship or of an executive officer, director,or agent of the corporation or unincor-porated association to be served.

(c) Service of documents with prescribedresponse periods. When service of a doc-ument starts the running of a pre-scribed period of time for the submis-sion of a responsive document or theoccurrence of an event, the documentshall be served as provided in para-graph (b) of this section.

(d) Service of other documents. All doc-uments other than those specified inparagraph (c) of this section may beserved as provided in paragraph (b) ofthis section, or by ordinary first-classmail, properly addressed, postage pre-paid.

(e) Service on a representative. When aparty has appeared by an attorney orother representative, service upon thatattorney or other representative shallconstitute service on the party.

(f) Certificate of service. The originalof every document filed with the agen-cy and required to be served upon allparties to a proceeding shall be accom-panied by a certificate of service signedby the party making service, statingthat such service has been made upon


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each party to the proceeding. Certifi-cates of service may be in substantiallythe following form:

I hereby certify that I have this day servedthe foregoing document upon all parties ofrecord in this proceeding by mailing, postageprepaid (or by delivering in person) a copy toeach such party.

Dated at llllllllll this ll dayof llllllllll, 19ll.

(Signature) lllllllllllllllllFor lllllllllllllllllllll

(g) Date of service. The date of serviceof a document shall be the date onwhich the document is deposited in theUnited States mail or is delivered inperson.


§ 511.17 Public participation.Participant Status. Any person inter-

ested in a proceeding commenced pur-suant to § 511.11 who desires to partici-pate in the proceeding, shall file withthe Docket Section a notice of inten-tion to participate in the proceedingand shall serve a copy of such notice oneach party to the proceeding. A noticeof intention to participate shall befiled not later than the commencementof the hearing. Untimely filings willnot be accepted absent a determinationby the Presiding Officer that the per-son making the request has made asubstantial showing of good cause forfailure to file on time. Any person whofiles a notice to participate in the pro-ceeding as a nonparty shall be knownas a ‘‘participant’’ and shall have therights specified in § 511.41(d).

[53 FR 15783, May 3, 1988]

§ 511.18 Joinder of proceedings.Two or more matters which have

been scheduled for adjudicative pro-ceedings, and which involve one ormore common questions of law or fact,may be consolidated for the purpose ofhearing, appeal or the Administrator’sreview. A motion for consolidation forthe purpose of hearing may be filedwith the Presiding Officer by any partyto such proceedings not later than thir-ty (30) days prior to the hearing. A mo-tion for consolidation for the purposeof appeal may be filed by any party tosuch proceedings within 10 days after

issuance of the Initial Decision. A mo-tion to consolidate shall be served uponall parties to all proceedings whosejoinder is contemplated. The proceed-ings may be consolidated where to doso would tend to avoid unnecessarycosts or delay. Such consolidation mayalso be ordered upon the initiative ofthe Presiding Officer or the Adminis-trator, as appropriate. The PresidingOfficer may order separate hearings onany issue where to do so would pro-mote economy or convenience or wouldavoid prejudice to a party.

Subpart C—Prehearing Proce-dures; Motions; InterlocutoryAppeals; Summary Judgment;Settlement

§ 511.21 Prehearing conferences.(a) When held. (1) A prehearing con-

ference shall be held in person or byconference telephone call, except in un-usual circumstances, approximatelyfifty (50) days after publication in theFEDERAL REGISTER of the complaint,upon ten (10) days notice to all partiesand participants, to consider any or allthe following:

(i) Motions for consolidation of pro-ceedings;

(ii) Identification, simplification andclarification of the issues;

(iii) Necessity or desirability ofamending the pleadings;

(iv) Stipulations and admissions offact and of the content and authentic-ity of documents;

(v) Oppositions to notices of oral ex-amination;

(vi) Motions for protective orders tolimit or modify discovery;

(vii) Issuance of subpoenas to compelthe appearance of witnesses and theproduction of documents;

(viii) Limitation of the number ofwitnesses, particularly the avoidanceof duplicate expert witnesses;

(ix) Matters of which official noticewill be taken and matters which maybe resolved by reliance upon findings ofother Federal agencies; and

(x) Other matters which may expe-dite the conduct of the hearing.

§ 511.22 Prehearing briefs.Not later ten (10) days prior to the

hearing, the parties shall, except when


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49 CFR Ch. V (10–1–98 Edition)§ 511.23

ordered otherwise by the Presiding Of-ficer in unusual circumstances, simul-taneously serve and file prehearingbriefs, which shall set forth (a) a state-ment of the facts expected to beproved, and of the anticipated order ofproof; (b) a statement of the issues andthe legal argument in support of theparty’s contentions with respect toeach issue; and (c) a table of authori-ties with a designation by asterisk ofthe principal authorities relied upon.

§ 511.23 Motions.(a) Presentations and dispositions. Dur-

ing the time a proceeding is before aPresiding Officer, all motions, whetheroral or written, except those filedunder §511.42(e), shall be addressed tothe Presiding Officer, who shall ruleupon them promptly after affording anopportunity for response.

(b) Written motions. All written mo-tions shall state the particular order,ruling, or action desired and thegrounds therefor. If a motion is sup-ported by memoranda, affidavits orother documents, they shall be servedand filed with the motion. All motionsshall contain a proposed order settingforth the relief sought. All written mo-tions shall be filed with the ExecutiveSecretary and served on all parties,and all motions addressed to the Ad-ministrator shall be in writing.

(c) Responses. Within ten (10) daysafter service of any written motion orpetition or within such longer or short-er time as may be designated by theseRules or by the Presiding Officer or theAdministrator, the opposing party orparties shall file a written response tosuch motion. Where a motion would af-fect only a single party, or an identifi-able group of parties, the Presiding Of-ficer or Administrator may limit theresponse to the motion to the affectedparty or parties. Failure to respond toa written motion may, in the discre-tion of the Presiding Officer be deemedas consent to the granting of the reliefsought in the motion. The movingparty shall have no right to reply, ex-cept as permitted by the Presiding Of-ficer or the Administrator.

(d) Rulings on motions for dismissal.When a motion to dismiss a complaintor motion for other relief is grantedwith the result that the proceeding be-

fore the Presiding Officer is termi-nated, the Presiding Officer shall issuean Initial Decision and Order thereonin accordance with the provisions of§ 511.51. If such a motion is granted asto all issues alleged in the complaint inregard to some, but not all, of the re-spondents, or is granted as to any partof the allegations in regard to any orall of the respondents, the PresidingOfficer shall enter an order on therecord and consider the remainingissues in the Initial Decision. The Pre-siding Officer may elect to defer rulingon a motion to dismiss until the closeof the case.

§ 511.24 Interlocutory appeals.

(a) General. Rulings of the PresidingOfficer may not be appealed to the Ad-ministrator prior to the Initial Deci-sion, except as provided herein.

(b) Exceptions—(1) Interlocutory ap-peals to Administrator. The Adminis-trator may, in his or her discretion, en-tertain interlocutory appeals where aruling of the Presiding Officer:

(i) Requires the production or disclo-sure of records claimed to be confiden-tial;

(ii) Requires the testimony of a su-pervisory official of the agency otherthan one especially cognizant of thefacts of the matter in adjudication;

(iii) Excludes an attorney from par-ticipation in a proceeding pursuant to§ 511.42(b).

(2) Procedures for interlocutory appeals.Within ten (10) days of issuance of aruling, any party may petition the Ad-ministrator to entertain an interlocu-tory appeal on a ruling in the cat-egories enumerated above. The petitionshall not exceed fifteen (15) pages. Anyother party may file a response to thepetition within ten (10) days of its serv-ice. The response shall not exceed fif-teen (15) pages. The Administratorshall thereupon act upon the petition,or the Administrator shall requestsuch further briefing or oral presen-tation as he may deem necessary.

(3) Interlocutory appeals from all otherrulings—(i) Grounds. Interlocutory ap-peals from all other rulings by the Pre-siding Officer may proceed only uponmotion to the Presiding Officer and adetermination by the Presiding Officer


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in writing, with justification in sup-port thereof, that the ruling involves acontrolling question of law or policy asto which there is substantial groundfor differences of opinion and that animmediate appeal from the ruling maymaterially advance the ultimate termi-nation of the litigation, or that subse-quent review will be an inadequateremedy.

(ii) Form. If the Presiding Officer de-termines, in accordance with para-graph (b)(3)(i) of this section that aninterlocutory appeal may proceed, apetition for interlocutory appeal maybe filed with and acted upon by the Ad-ministrator in accordance with para-graph (b)(2) of this section.

(c) Proceedings not stayed. A petitionfor interlocutory appeal under thispart shall not stay the proceedings be-fore the Presiding Officer unless thePresiding Officer shall so order, exceptthat a ruling of the Presiding Officerrequiring the production of recordsclaimed to be confidential shall beautomatically stayed for a period of(10) days following the issuance of suchruling to allow an affected party theopportunity to file a petition for an in-terlocutory appeal pursuant to§ 511.24(b)(2). The filing of such a peti-tion shall automatically extend thestay of such a ruling pending the Ad-ministrator’s action on such petition.

§ 511.25 Summary decision and order.(a) Motion. Any party may move,

with a supporting memorandum, for aSummary Decision and Order in itsfavor upon all or any of the issues incontroversy. Complaint Counsel mayso move at any time after thirty (30)days following issuance of a complaint,and any other party may so move atany time after issuance of a complaint.Any such motion by any party shall befiled at least twenty (20) days beforethe date fixed for the adjudicatoryhearing.

(b) Response to motion. Any otherparty may, within ten (10) days afterservice of the motion, file a responsethereto with a supporting memoran-dum.

(c) Grounds. A Summary Decision andOrder shall be granted if the pleadingsand any testimony upon oral examina-tion, answers to interrogatories, ad-

missions, and/or affidavits show thatthere is no genuine issue as to any ma-terial fact and that the moving party isentitled to a Summary Decision andOrder as a matter of law.

(d) Legal effect. A Summary Decisionand Order upon all the issues being ad-judicated shall constitute the InitialDecision of the Presiding Officer, andmay be appealed to the Administratorin accordance with § 511.53. A SummaryDecision, interlocutory in character,may be rendered on fewer than allissues and may not be appealed prior toissuance of the Initial Decision, exceptin accordance with § 511.24.

(e) Case not fully adjudicated on mo-tion. A Summary Decision and Orderthat does not dispose of the whole caseshall include a statement of those ma-terial facts as to which there is no sub-stantial controversy, and of those ma-terial facts that are actually and ingood faith controverted. The SummaryOrder shall direct such further proceed-ings as are just.

§ 511.26 Settlement.(a) Applicability. This section applies

only to cases of alleged violations ofsection 507(3) of the Motor Vehicle In-formation and Cost Savings Act, Pub.L. 94–163, 89 Stat. 911 (15 U.S.C. section2007(3)). Settlement in other cases maybe made only in accordance with sub-part G of this part.

(b) Availability. Any party shall havethe opportunity to submit an offer ofsettlement to the Presiding Officer.

(c) Form. Offers of settlement shall bein the form of a consent agreement andorder, shall be signed by the party sub-mitting the offer or his representative,and may be signed by any other party.Each offer of settlement shall be ac-companied by a motion to transmit tothe Administrator the proposed agree-ment and order, outlining the sub-stantive provisions of the agreement,and the reasons why it should be ac-cepted.

(d) Contents. The proposed consentagreement and order which constitutethe offer of settlement shall containthe following:

(1) An admission of all jurisdictionalfacts;

(2) An express waiver of further pro-cedural steps, and of all rights to seek


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49 CFR Ch. V (10–1–98 Edition)§ 511.31

judicial review or otherwise to contestthe validity of the order;

(3) A description of the alleged non-compliance, or violation;

(4) Provisions to the effect that theallegations of the complaint are re-solved by the proposed consent agree-ment and order;

(5) A listing of the acts or practicesfrom which the respondent shall re-frain;

(6) A detailed statement of the cor-rective action(s) which the respondentshall excute and the civil penalty, ifany, that respondent shall pay.

(e) Transmittal. The Presiding Officershall transmit to the Administrator fordecision all offers of settlement and ac-companying memoranda that meet therequirements enumerated in paragraph(d) of this section. The Presiding Offi-cer may, but need not, recommend ac-ceptance or rejection of such offers.Any party or participant may object toa proposed consent agreement by filinga motion and supporting memorandumwith the Administrator.

(f) Stay of proceedings. When an offerof settlement has been agreed to by theparties and has been transmitted to theAdministrator, the proceedings shall bestayed until the Administrator hasruled on the offer. When an offer of set-tlement has been made and transmit-ted to the Administrator but has notbeen agreed to by all parties, the pro-ceedings shall not be stayed pendingthe Administrator’s decision on theoffer.

(g) Administrator’s ruling. The Admin-istrator will rule upon all transmittedoffers of settlement. If the Adminis-trator accepts the offer, the Adminis-trator shall issue an appropriate order.The order shall become effective uponissuance. In determining whether toaccept an offer of settlement, the Ad-ministrator will consider the gravity ofthe alleged violation, and any goodfaith efforts by the respondent to com-ply with applicable requirements.

(h) Rejection. If the Administrator re-jects an offer of settlement, the Admin-istrator shall give written notice ofthat decision and the reasons thereforto the parties and the Presiding Offi-cer. Promptly thereafter, the PresidingOfficer shall issue an order notifyingthe parties of the resumption of the

proceedings, including any modifica-tions to the schedule resulting fromthe stay of the proceedings.

(i) Effect of rejected offer. Rejected of-fers of settlement shall not be admissi-ble in evidence over the objection ofany signatory, nor shall the fact of theproposal of the offer be admissible inevidence.


Subpart D—Discovery;Compulsory Process

§ 511.31 General provisions governingdiscovery.

(a) Applicability. The discovery rulesestablished in this subpart are applica-ble to the discovery of informationamong the parties to a proceeding. Par-ties seeking information from personsnot parties may do so by subpoena inaccordance with § 511.38.

(b) Discovery methods. Parties may ob-tain discovery by one or more of thefollowing methods: (1) Written inter-rogatories; (2) requests for productionof documents or things; (3) requests foradmissions; or (4) testimony upon oralexamination. Unless the Presiding Offi-cer otherwise orders under paragraph(d) of this section, the frequency of useof these methods is not limited.

(c) Scope of discovery. The scope ofdiscovery is as follows:

(1) In general. Parties may obtain dis-covery regarding any matter not privi-leged, which is relevant to the subjectmatter involved in the proceedings,whether it relates to the claim or de-fense of the party seeking discovery orto the claim or defense of any otherparty. It is not ground for objectionthat the information sought will be in-admissible at the hearing if the infor-mation sought appears reasonably cal-culated to lead to the discovery of ad-missible evidence.

(2) Exception. Parties may not obtaindiscovery of documents which accom-panied the staff’s recommendation asto whether a complaint should issue orof documents or portions thereof whichwould be exempt from discovery underRule 26(b)(3) of the Federal Rules ofCivil Procedure.

(3) Hearing preparation: Experts. Aparty may obtain discovery of facts


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known and opinions held by experts,regardless of whether they are acquiredor developed in anticipation of or forlitigation. Such discovery may be hadby any of the methods provided inparagraph (b) of this section.

(d) Protective orders. Upon motion bya party or person and for good causeshown, the Presiding Officer may makeany order which justice requires to pro-tect such party or person from annoy-ance, embarrassment, competitive dis-advantage, oppression or undue burdenor expense, including one or more ofthe following: (1) That the discoveryshall not be had; (2) that the discoverymay be had only on specified terms andconditions, including a designation ofthe time and/or place; (3) that the dis-covery shall be had only by a methodof discovery other than that selectedby the party seeking discovery; (4) thatcertain matters shall not be inquiredinto, or that the scope of discoveryshall be limited to certain matters; (5)that discovery shall be conducted withno one present except persons des-ignated by the Presiding Officer; (6)that a trade secret or other confiden-tial research, development, or commer-cial information shall not be disclosedor shall be disclosed only in a des-ignated way or only to designated par-ties; and (7) that responses to discoveryshall be placed in camera in accordancewith § 511.45.If a motion for a protective order is de-nied in whole or in part, the PresidingOfficer may, on such terms or condi-tions as are just, order that any partyprovide or permit discovery.

(e) Sequence and timing of discovery.Discovery may commence at any timeafter filing of the answer. Unless other-wise provided in these Rules or byorder of the Presiding Officer, methodsof discovery may be used in any se-quence and the fact that a party is con-ducting discovery shall not operate todelay any other party’s discovery.

(f) Supplementation of responses. Aparty who has responded to a requestfor discovery shall supplement the re-sponse with information thereafter ac-quired.

(g) Completion of discovery. All discov-ery shall be completed as soon as prac-tical but in no case longer than onehundred fifty (150) days after issuance

of a complaint unless otherwise or-dered by the Presiding Officer in excep-tional circumstances and for goodcause shown. All discovery shall beserved by a date which affords theparty from whom discovery is soughtthe full response period provided bythese Rules.

(h) Service and filing of discovery. Alldiscovery requests and written re-sponses, and all notices of the taking oftestimony, shall be filed with theDocket Section and served on all par-ties and the Presiding Officer.

(i) Control of discovery. The use ofthese discovery procedures is subject tothe control of the Presiding Officer,who may issue any just and appro-priate order for the purpose of ensuringtheir timely completion.


§ 511.32 Written interrogatories to par-ties.

(a) Availability; procedures for use.Any party may serve upon any otherparty written interrogatories to be an-swered by the party served or, if theparty served is a public or private cor-poration or a partnership or associa-tion or governmental agency, by anyofficer or agent, who shall furnish suchinformation as is available to theparty. Interrogatories may, withoutleave of the Presiding Officer, be servedupon any party after filing of the an-swer.

(b) Procedures for response. Each in-terrogatory shall be answered sepa-rately and fully in writing under oath,unless it is objected to, in which eventthe reasons for objection shall be stat-ed in lieu of an answer. The answersare to be signed by a responsible rep-resentative of the respondent and theobjections signed by the representativemaking them. The party upon whomthe interrogatories have been servedshall serve a copy of the answers, andobjections if any, within 30 days afterservice of the interrogatories. The Pre-siding Officer may allow a shorter orlonger time for response. The partysubmitting the interrogatories maymove for an order under § 511.36 withrespect to any objection to or otherfailure to answer an interrogatory.


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49 CFR Ch. V (10–1–98 Edition)§ 511.33

(c) Scope of interrogatories. Interrog-atories may relate to any matterswhich can be inquired into under§ 511.31(c)(1), and the answers may beused to the extent permitted under thispart. An interrogatory otherwise prop-er is not objectionable merely becausean answer to the interrogatory wouldinvolve an opinion or contention thatrelates to fact or to the application oflaw to fact, but the Presiding Officermay order that such an interrogatoryneed not be answered until a latertime.

(d) Option to produce business records.Where the answer to an interrogatorymay be derived or ascertained from thebusiness records of the party uponwhom the interrogatory has beenserved, or from an examination, auditor inspection of such business records,or from a compilation, abstract orsummary based thereon, and the bur-den of deriving the answer is substan-tially the same for the party servingthe interrogatory as for the partyserved, it is a sufficient answer to theinterrogatory to specify the recordsfrom which the answer may be derivedor ascertained and to afford to theparty serving the interrogatory reason-able opportunity to examine, audit orinspect such records and to make cop-ies, complications, abstracts, or sum-maries.

§ 511.33 Production of documents andthings.

(a) Scope. Any party may serve uponany other party a request (1) toproduce and permit the party makingthe request, or someone acting on be-half of that party, to inspect and copyany designated documents (includingwritings, drawings, graphs, charts, pho-tographs, phono-records, and any otherdata-compilation from which informa-tion can be obtained, translated, if nec-essary, by the party in possession intoreasonably usable form), or (2) to in-spect and copy, test or sample tangiblethings which constitute or containmatters within the scope of § 511.31(c)(1)and which are in the possession, cus-tody or control of the party upon whomthe request is served.

(b) Procedure for request. The requestmay be served at any time after the fil-ing of the answer without leave of the

Presiding Officer. The request shall setforth the items to be inspected eitherby individual item or by category, andshall describe each item or categorywith reasonable particularity. The re-quest shall specify a reasonable time,place and manner for making the in-spection and performing the relatedacts.

(c) Procedure for response. The partyupon whom the request is served shallserve a written response within twenty(20) days after service of the request.The Presiding Officer may allow ashorter or longer time for response.The response shall state, with respectto each item or category requested,that inspection and related activitieswill be permitted as requested, unlessthe request is objected to, in whichevent the reasons for objection shall bestated. If objection is made to onlypart of an item or category, that partshall be so specified. The party submit-ting the request may move for an orderunder § 511.36 with respect to any objec-tion to or other failure to respond tothe request or any part thereof, or toany failure to permit inspection as re-quested.

§ 511.34 Requests for admission.(a) Procedure for request. A party may

serve upon any other party a writtenrequest for the admission, for the pur-poses of the pending proceeding only,of the truth of any matters within thescope of § 511.31(c)(1) set forth in the re-quest that relate to statements oropinions of fact or of the application oflaw to fact, including the genuinenessof documents described in the request.Copies of documents shall be servedwith the request unless they have been,or are otherwise furnished or madeavailable for inspection and copying.The request may, without leave of thePresiding Officer, be served upon anyparty after filing of the answer. Eachmatter as to which an admission is re-quested shall be separately set forth.

(b) Procedure for response. The matteras to which an admission is requestedis deemed admitted unless within thir-ty (30) days after service of the request,or within such shorter or longer timeas the Presiding Officer may allow, theparty to whom the request is directedserves upon the party requesting the


45


admission a written answer or objec-tion addressed to the matter, signed bythe party or the party’s representa-tives. If objection is made, the reasonstherefore shall be stated.

The answer shall specifically admit ordeny the matter or set forth in detailthe reasons why the answering partycannot truthfully admit or deny thematter. A denial shall fairly meet thesubstance of the requested admission.When good faith requires that a partyqualify an answer or deny only a partof the matter as to which an admissionis requested, the party shall specify theportion that is true and qualify or denythe remainder. An answering partymay not give lack of information orknowledge as a reason for failure toadmit or deny, unless the party statesthat he or she has made reasonable in-quiry and that the information knownor readily available to him or her is in-sufficient to enable him or her toadmit or deny. A party who considersthat a matter as to which an admissionhas been requested presents a genuineissue for hearing may not, on thatground alone, object to the request butmay deny the matter or set forth rea-sons why the party cannot admit ordeny it. The party who has requestedan admission may move to determinethe sufficiency of the answer or objec-tion thereto in accordance with § 511.36.If the Presiding Officer determinesthat an answer does not comply withthe requirements of this section, he orshe may order that the matter bedeemed admitted or that an amendedanswer be served.

(c) Effect of admission. Any matter ad-mitted under this section is conclu-sively established unless the PresidingOfficer on motion permits withdrawalor amendment of such admission. ThePresiding Officer may permit with-drawal or amendment when the presen-tation of the merits of the action willbe served thereby and the party thatobtained the admission fails to satisfythe Presiding Officer that withdrawalor amendment will prejudice thatparty in maintaining an action or de-fense on the merits.

§ 511.35 Testimony upon oral examina-tion.

(a) When testimony may be taken. Atany time after the answer is filed under§ 511.12, upon leave of the Presiding Of-ficer and under such terms and condi-tions as the Presiding Officer may pre-scribe, any party may take the testi-mony of any other party, including theagents, employees, consultants or pro-spective witnesses of that party at aplace convenient to the witness. Theattendance of witnesses and the pro-duction of documents and things at theexamination may be compelled by sub-poena as provided in § 511.38.

(b) Notice of oral examination—(1) Ex-amination of a party. A party desiringto examine another party to the pro-ceeding shall, after obtaining leavefrom the Presiding Officer, serve writ-ten notice of the examination on allother parties and the Presiding Officerat least ten (10) days before the date ofthe examination. The notice shall state(i) the time and place for making theexamination; (ii) the name and addressof each person to be examined, ifknown, or if the name is not known, ageneral description sufficient to iden-tify him; and (iii) the subject matter ofthe expected testimony. If a subpoenaduces tecum is to be served on the per-son to be examined, the designation ofthe materials to be produced, as setforth in the subpoena, shall be at-tached to or included in the notice ofexamination.

(2) Examination of a nonparty. A partydesiring to examine a person who is nota party to the proceeding shall makeapplication for a subpoena, in accord-ance with § 511.38, to compel the at-tendance, testimony and/or productionof documents by such person who is nota party. The party desiring such exam-ination shall serve written notice ofthe examination on all other parties tothe proceeding, after issuance of thesubpoena by the Presiding Officer or adesignated alternate.

(3) Opposition to notice. A personserved with a notice of examinationmay, within 3 days of the date of serv-ice, oppose, in writing, the examina-tion. The Presiding Officer shall ruleon the notice and any opposition and


46

49 CFR Ch. V (10–1–98 Edition)§ 511.35

may order the taking of all noticed ex-aminations, upon a showing of goodcause therefor. The Presiding Officermay, for good cause shown, enlarge orshorten the time for the taking of anexamination.

(c) Persons before whom examinationsmay be taken. Examinations may betaken before any person authorized toadminister oaths by the laws of theUnited States or of the place where theexamination is held. No examinationshall be taken before a person who is arelative or employee or attorney orrepresentative of any party, or who is arelative or employee of such attorneyor representative, or who is financiallyinterested in the action.

(d) Procedure—(1) Examination. Eachwitness shall be duly sworn, and alltestimony shall be duly recorded. Allparties or their representatives may bepresent and participate in the examina-tion. Examination and cross-examina-tion of witnesses may proceed as per-mitted at the hearing. Questions ob-jected to shall be answered subject tothe objections. Objections shall be inshort form, and shall state the groundsrelied upon. The questions propoundedand the answers thereto, together withall objections made, shall be recordedby the official reporter before whomthe examination is made. The originalor a verified copy of all documents andthings produced for inspection duringthe examination of the witness shall,upon a request of any party present, bemarked for identification and annexedto the record of the examination.

(2) Motion to terminate or limit exam-ination. At any time during the exam-ination, upon motion of any party or ofthe witness, and upon showing that theexamination is being conducted in badfaith or in such manner as unreason-ably to annoy, embarrass or oppressthe witness or party, the Presiding Of-ficer may, upon motion, order theparty conducting the examination toterminate the examination, or maylimit the scope and manner of the ex-amination as provided in § 511.31(d).

(3) Participation by parties not present.In lieu of attending an examination,any party may serve written questionsin a sealed envelope on the party con-ducting the examination. That partyshall transmit the envelope to the offi-

cial reporter, who shall unseal it andpropound the questions containedtherein to the witness.

(e) Transcription and filing of testi-mony—(1) Transcription. Upon requestby any party, the testimony recordedat an examination shall be transcribed.When the testimony is fully tran-scribed, the transcript shall be submit-ted to the witness for examination andsigning, and shall be read to or by thewitness, unless such examination andsignature are waived by the witness.Any change in form or substance whichthe witness desires to make shall beentered upon the transcript of the offi-cial reporter with a statement of thereasons given by the witness for mak-ing them. The transcript shall then besigned by the witness, unless the par-ties by stipulation waive the signing,or the witness is ill or cannot be foundor refuses to sign. If the transcript isnot signed by the witness within thirty(30) days of its submission to him, theofficial reporter shall sign it and stateon the record the fact of the waiver ofsignature or of the illness or absence ofthe witness or the fact of the refusal tosign, together with a statement of thereasons therefor. The testimony maythen be used as fully as though signed,in accordance with paragraph (i) of thissection.

(2) Certification and filing. The officialreporter shall certify on the transcriptthat the witness was duly sworn andthat the transcript is a true record ofthe testimony given and correctionsmade by the witness. The official re-porter shall then seal the transcript inan envelope endorsed with the title anddocket number of the action andmarked ‘‘Testimony of [name of wit-ness]’’ and shall promptly file the tran-script with the Docket Section. ThePresiding Officer shall notify all par-ties of the filing of the transcript andthe Docket Section shall furnish a copyof the transcript to any party or to thewitness upon payment of reasonablecharges therefor.

(f) Costs of examination. The partywho notices the examination shall payfor the examination. The party who re-quests transcription of the examina-tion shall pay for the transcription.

(g) Failure to attend or to serve sub-poena; expenses. If a party who notices


47


an examination fails to attend and pro-ceed therewith and another party at-tends in person or by a representativepursuant to the notice, the PresidingOfficer may order the party who gavethe notice to pay the attending partythe reasonable expenses incurred. If aparty who notices an examination failsto serve a subpoena upon the witnessand as a result the witness does not at-tend, and if another party attends inperson or by a representative becausethat party expects the examination tobe made, the Presiding Officer mayorder the party who gave notice to paythe attending party the reasonable ex-penses incurred.

(h) Examination to preserve testimony—(1) When available. By leave of the Pre-siding Officer, a party may examine awitness for the purpose of perpetuatingthe testimony of that witness. A partywho wishes to conduct such an exam-ination shall obtain prior leave of thePresiding Officer by filing a motion.The motion shall include a showing ofsubstantial reason to believe that thetestimony could not be presented atthe hearing. If the Presiding Officer issatisfied that the perpetuation of thetestimony may prevent a failure of jus-tice or is otherwise reasonably nec-essary, he or she shall order that thedeposition be taken.

(2) Procedure. Notice of an examina-tion to preserve testimony shall beserved at least fifteen (15) days prior tothe examination. The examinationshall be taken in accordance with theprovisions of paragraph (d) of this sec-tion. Any examination taken to pre-serve testimony shall be fully tran-scribed and filed in accordance withparagraph (e) of this section.

(i) Use of testimony obtained under thissection. At the hearing or upon a mo-tion or an interlocutory proceeding,any part or all of a deposition, so far asadmissible under the rules of evidenceapplied as though the witness werethen present and testifying, may beused against any party who waspresent or represented at the taking ofthe deposition or who had reasonablenotice thereof, in accordance with anyof the following provisions:

(1) Any deposition may be used byany party for the purpose of con-

tradicting or impeaching the testi-mony of the deponent as a witness.

(2) The deposition of a party or of aperson who at the time of the taking ofhis testimony was an officer, directoror managing agent of a party may beused against that party for any pur-pose.

(3) The deposition of a witness,whether or not a party, may be used byany party for any purpose if the Presid-ing Officer finds:

(i) That the witness is dead; or(ii) That the witness is at a greater

distance than 100 miles from the placeof the hearing, or is out of the UnitedStates, unless it appears that the ab-sence of the witness was procured bythe party offering the deposition; or

(iii) That the witness is unable to at-tend or testify because of age, illness,infirmity, or imprisonment; or

(iv) That the party offering the depo-sition has been unable to procure theattendance of the witness by subpoena;or

(v) Upon application and notice, thatsuch exceptional circumstances existas to make it desirable, in the interestof justice and with due regard to theimportance of presenting the testi-mony of witnesses orally in open court,to allow the deposition to be used.

(4) If only part of a deposition is of-fered in evidence by a party, an adverseparty may require him to introduceany other part which ought in fairnessto be considered with the part intro-duced, and any party may introduceany other parts.


§ 511.36 Motions to compel discovery.If a party fails to respond to discov-

ery, in whole or in part, the party seek-ing discovery may move within twenty(20) days for an order compelling an an-swer, or compelling inspection or pro-duction of documents, or otherwisecompelling discovery. For purposes ofthis subsection, an evasive or incom-plete response is to be treated as a fail-ure to respond. If the motion is grant-ed, the Presiding Officer shall issue anorder compelling discovery. If the mo-tion is denied in whole or in part, thePresiding Officer may make such pro-tective order as he or she would have


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49 CFR Ch. V (10–1–98 Edition)§ 511.37

been empowered to make on a motionpursuant to § 511.31(d). When makingoral examinations, the discoveringparty shall continue the examinationto the extent possible with respect toother areas of inquiry before moving tocompel discovery.

§ 511.37 Sanctions for failure to com-ply with order.

If a party fails to obey an order toprovide or permit discovery, the Pre-siding Officer may take such action asis just, including but not limited to thefollowing:

(a) Infer that the admission, testi-mony, document or other evidencewould have been adverse to the party;

(b) Order that for the purposes of theproceeding, the matters regardingwhich the order was made or any otherdesignated facts shall be taken to beestablished in accordance with theclaim of the party obtaining the order;

(c) Order that the party withholdingdiscovery not introduce into evidenceor otherwise rely, in support of anyclaim or defense, upon the documentsor other evidence withheld;

(d) Order that the party withholdingdiscovery not introduce into evidenceor otherwise use at the hearing, infor-mation obtained in discovery;

(e) Order that the party withholdingdiscovery not be heard to object to in-troduction and use of secondary evi-dence to show what the withheld ad-mission, testimony, documents, orother evidence would have shown;

(f) Order that a pleading, or part of apleading, or a motion or other submis-sion by the party, concerning whichthe order was issued, be stricken, orthat decision on the pleadings be ren-dered against the party, or both; and

(g) Exclude the party or representa-tive from proceedings, in accordancewith § 511.42(b).

Any such action may be taken by orderat any point in the proceedings.

§ 511.38 Subpoenas.

(a) Availability. A subpoena shall beaddressed to any party or any personnot a party for the purpose of compel-ling attendance, testimony and produc-tion of documents at a hearing or oralexamination.

(b) Form. A subpoena shall identifythe action with which it is connected;shall specify the person to whom it isaddressed and the date, time and placefor compliance with its provisions; andshall be issued by order of the Presid-ing Officer and signed by the ChiefCounsel, or by the Presiding Officer. Asubpoena duces tecum shall specify thebooks, papers, documents, or other ma-terials or data-compilations to be pro-duced.

(c) How obtained—(1) Content of appli-cation. An application for the issuanceof a subpoena stating reasons shall besubmitted in triplicate to the PresidingOfficer.

(2) Procedure of application. The origi-nal and two copies of the subpoena,marked ‘‘original,’’ ‘‘duplicate’’ and‘‘triplicate,’’ shall accompany the ap-plication. The Presiding Officer shallrule upon an application for a subpoenaex parte, by issuing the subpoena or byissuing an order denying the applica-tion.

(d) Issuance of a subpoena. The Presid-ing Officer shall issue a subpoena bysigning and dating, or ordering theChief Counsel to sign and date, eachcopy in the lower right-hand corner ofthe document. The ‘‘duplicate’’ and‘‘triplicate’’ copies of the subpoenashall be transmitted to the applicantfor service in accordance with theseRules; the ‘‘original’’ copy shall be re-tained by or forwarded to the ChiefCounsel for retention in the docket ofthe proceeding.

(e) Service of a subpoena. A subpoenamay be served in person or by certifiedmail, return receipt requested, as pro-vided in § 511.16(b). Service shall bemade by delivery of the signed ‘‘dupli-cate’’ copy to the person named there-in.

(f) Return of service. A person servinga subpoena shall promptly execute areturn of service, stating the date,time, and manner of service. If serviceis effected by mail, the signed returnreceipt shall accompany the return ofservice. In case of failure to make serv-ice, a statement of the reasons for thefailure shall be made. The ‘‘triplicate’’of the subpoena, bearing or accom-panied by the return of service, shall bereturned forthwith to the Chief Coun-sel after service has been completed.


49


(g) Motion to quash or limit subpoena.Within five (5) days of receipt of a sub-poena, the person against whom it isdirected may file with the PresidingOfficer a motion to quash, modify, orlimit the subpoena, setting forth thereasons why the subpoena should bewithdrawn or why it should be modi-fied or limited in scope. Any such mo-tion shall be answered within five (5)days of service, and shall be ruled onimmediately thereafter. The ordershall specify the date, if any, for com-pliance with the specifications of thesubpoena and the reasons for the deci-sion.

(h) Consequences of failure to comply.In the event of failure to comply witha subpoena, the Presiding Officer maytake any of the actions enumerated in§ 511.37 or may order any other appro-priate relief to compensate for thewithheld testimony, documents, orother materials. If in the opinon of thePresiding Officer such relief is insuffi-cient, the Presiding Officer shall cer-tify to the Administrator a request forjudicial enforcement of the subpoena.

[45 FR 81578, Dec. 11, 1980, as amended at 53FR 26261, July 12, 1988]

§ 511.39 Orders requiring witnesses totestify or provide other informationand granting immunity.

(a) A party who desires the issuanceof an order requiring a witness to tes-tify or provide other information uponbeing granted immunity from prosecu-tion under title 18, U.S.C., section 6002,may make a motion to that effect. Themotion shall be made and ruled on inaccordance with § 511.22, and shall in-clude a showing:

(1) That the testimony or other infor-mation sought from a witness or pro-spective witness may be necessary tothe public interest; and

(2) That such individual has refusedor is likely to refuse to testify or pro-vide such information on the basis ofthat individual’s privilege against self-incrimination.

(b) If the Presiding Officer deter-mines that the witness’ testimony ap-pears necessary and that the privilegeagainst self-incrimination may be in-voked, he or she may certify to the Ad-ministrator a request that he or sheobtain the approval of the Attorney

General of the United States for theissuance of an order granting immu-nity.

(c) Upon application to and approvalof the Attorney General of the UnitedStates, and after the witness has in-voked the privilege against self-in-crimination, the Presiding Officer shallissue the order granting immunity un-less he or she determines that theprivilege was improperly invoked.

(d) Failure of a witness to testifyafter a grant of immunity or after a de-nial of the issuance of an order grant-ing immunity shall result in the impo-sition of appropriate sanctions as pro-vided in § 511.37.

Subpart E—Hearings

§ 511.41 General rules.

(a) Public hearings. All hearings pur-suant to this part shall be public unlessotherwise ordered by the Presiding Of-ficer. Notice of the time and locationof the hearing shall be served on eachparty and participant, and published inthe FEDERAL REGISTER.

(b) Expedition. Hearings shall proceedwith all reasonable speed, insofar aspracticable and with due regard to theconvenience of the parties and shallcontinue without suspension until con-cluded, except in unusual cir-cumstances.

(c) Rights of parties. Every party shallhave the right of timely notice and allother rights essential to a fair hearing,including, but not limited to, therights to present evidence, to conductsuch cross-examination as may be nec-essary in the judgment of the PresidingOfficer for a full and complete disclo-sure of the facts, and to be heard by ob-jection, motion, brief, and argument.

(d) Rights of participants. Every par-ticipant shall have the right to make awritten or oral statement of position,file proposed findings of fact, conclu-sions of law and a posthearing brief, inaccordance with § 511.17(b).

(e) Rights of witnesses. Any personcompelled to testify in a proceeding inresponse to a subpoena may be accom-panied, represented, and advised bycounsel or other representative, andmay obtain a transcript of his or hertestimony at no cost.


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49 CFR Ch. V (10–1–98 Edition)§ 511.42

§ 511.42 Powers and duties of Presid-ing Officer.

(a) General. A Presiding Officer shallhave the duty to conduct full, fair, andimpartial hearings, to take appropriateaction to avoid unnecessary delay inthe disposition of proceedings, and tomaintain order. He or she shall have allpowers necessary to that end, includingthe following powers:

(1) To administer oaths and affirma-tions;

(2) To compel discovery and to im-pose appropriate sanctions for failureto make discovery;

(3) To issue subpoenas;(4) To rule upon offers of proof and

receive relevant and probative evi-dence;

(5) To regulate the course of thehearings and the conduct of the partiesand their representatives therein;

(6) To hold conferences for simplifica-tion of the issues, settlement of theproceedings, or any other proper pur-poses;

(7) To consider and rule, orally or inwriting, upon all procedural and othermotions appropriate in an adjudicativeproceeding;

(8) To issue initial decisions, rulings,and orders, as appropriate;

(9) To certify questions to the Ad-ministrator for determination; and

(10) To take any action authorized inthis part or in conformance with theprovisions of title 5, U.S.C., sections551 through 559.

(b) Exclusion of parties by Presiding Of-ficer. A Presiding Officer shall have theauthority, for good cause stated on therecord, to exclude from participationin a proceeding any party, participant,and/or representative who shall violaterequirements of § 511.76. Any party,participant and/or representative so ex-cluded may appeal to the Adminis-trator in accordance with the provi-sions of § 511.23. If the representative ofa party or participant is excluded, thehearing shall be suspended for a rea-sonable time so that the party or par-ticipant may obtain another represent-ative.

(c) Substitution of Presiding Officer. Inthe event of the substitution of a newPresiding Officer for the one originallydesignated, any motion predicated

upon such substitution shall be madewithin five (5) days of the substitution.

(d) Interference. In the performance ofadjudicative functions, a Presiding Of-ficer shall not be responsible to or sub-ject to the supervision or direction ofthe Administrator or of any officer,employee, or agent engaged in the per-formance of investigative or prosecut-ing functions for NHTSA. All direc-tions by the Administrator to a Presid-ing Officer concerning any adjudicativeproceeding shall appear on and be madea part of the record.

(e) Disqualification of Presiding Officer.(1) When a Presiding Officer deemshimself or herself disqualified to pre-side in a particular proceeding, he orshe shall withdraw by notice on therecord and shall notify the Chief Ad-ministrative Law Judge of the with-drawal.

(2) Whenever, for any reason, anyparty shall deem the Presiding Officerto be disqualified to preside, or to con-tinue to preside, in a particular pro-ceeding, that party may file with theChief Administrative Law Judge a mo-tion to disqualify and remove, sup-ported by affidavit(s) setting forth thealleged grounds for disqualification. Acopy of the motion and supporting affi-davit(s) shall be served by the ChiefAdministrative Law Judge on the Pre-siding Officer whose removal is sought.The Presiding Officer shall have ten(10) days from service to reply in writ-ing. Such motion shall not stay theproceeding unless otherwise ordered bythe Presiding Officer or the Adminis-trator. If the Presiding Officer does notdisqualify himself or herself, the Ad-ministrator will determine the validityof the grounds alleged, either directlyor on the report of another PresidingOfficer appointed to conduct a hearingfor that purpose, and shall in the eventof disqualification take appropriate ac-tion, by assigning another PresidingOfficer or requesting assignment of an-other Administrative Law Judgethrough the Office of Hearings.


§ 511.43 Evidence.(a) Applicability of Federal Rules of

Evidence. The Federal Rules of Evi-dence shall apply to proceedings held


51


under this part only as a general guide.The Presiding Officer may admit anyrelevent and probative evidence.

(b) Burden of proof. (1) Complaintcounsel shall have the burden of sus-taining the allegations of any com-plaint.

(2) Any party who is the proponent ofa legal and/or factual proposition shallhave the burden of sustaining the prop-osition.

(c) Presumptions. A presumption im-poses on the party against whom it isdirected the burden of going forwardwith evidence to rebut or meet the pre-sumption, but does not shift to suchparty the burden of proof in the senseof the risk of nonpersuasion, which re-mains throughout the hearing upon theparty on whom it was originally cast.

(d) Admissibility. All relevant and reli-able evidence is admissible, but may beexcluded if its probative value is sub-stantially outweighed by unfair preju-dice or by considerations of unduedelay, waste of time, immateriality, orneedless presentation of cumulativeevidence.

(e) Official notice—(1) Definition. Offi-cial notice means use by the PresidingOfficer of extra-record facts and legalconclusions drawn from those facts. Anofficially noticed fact or legal conclu-sion must be one not subject to reason-able dispute in that it is either (i) gen-erally known within the jurisdiction ofthe Presiding Officer or (ii) known bythe Presiding Officer in areas of his orher expertise; or (iii) capable of accu-rate and ready determination by resortto sources whose accuracy cannot rea-sonably be questioned.

(2) Method of taking official notice. ThePresiding Officer may at any time takeofficial notice upon motion of anyparty or upon its own initiative. Therecord shall reflect the facts and con-clusions which have been officially no-ticed.

(3) Opportunity to challenge. Anyparty may upon application in writingrebut officially noticed facts and con-clusions by supplementing the record.The Presiding Officer shall determinethe permissible extent of this chal-lenge; that is, whether to limit theparty to presentation of written mate-rials, whether to allow presentation oftestimony, whether to allow cross-ex-

amination, or whether to allow oral ar-gument. The Presiding Officer shallgrant or deny the application on therecord.

(f) Objections and exceptions. Objec-tions to evidence shall be timely inter-posed, shall appear on the record, andshall contain the grounds upon whichthey are based. Rulings on all objec-tions, and the bases therefore, shall ap-pear on the record. Formal exceptionto an adverse ruling is not required topreserve the question for appeal.

(g) Offer of proof. When an objectionto proffered testimony or documentaryevidence is sustained, the sponsoringparty may make a specific offer, eitherin writing or orally, of what the partyexpects to prove by the testimony orthe document. When an offer of proof ismade, any other party may make aspecific offer, either in writing or oral-ly, of what the party expects to presentto rebut or contradict the offer ofproof. Written offers of proof or of re-buttal, adequately marked for identi-fication, shall accompany the recordand be available for consideration byany reviewing authority.

§ 511.44 Expert witnesses.

(a) Definition. An expert witness isone who, by reason of education, train-ing, experience, or profession, has pecu-liar knowlege concerning the matter ofscience or skill to which his or her tes-timony relates and from which he orshe may draw inferences based uponhypothetically stated facts or fromfacts involving scientific or technicalknowledge.

(b) Method of presenting testimony ofexpert witness. Except as may be other-wise ordered by the Presiding Officer, adetailed written statement of the ele-ments of the direct testimony of an ex-pert witness shall be filed on the recordand exchanged between the parties nolater than 10 days preceding the com-mencement of the hearing. The state-ment must contain a full explanationof the methodology underlying anyanalysis, and a full disclosure of thebasis of any opinion. The direct testi-mony of an expert witness shall not in-clude points not contained in the writ-ten statement. A party may waive di-rect examination of an expert witness


52

49 CFR Ch. V (10–1–98 Edition)§ 511.45

by indicating that the written state-ment be considered the testimony ofthe witness. In such a case, the writtentestimony shall be incorporated intothe record and shall constitute the tes-timony of the witness.

(c) Cross-examination and redirect ex-amination of expert witness. Cross-exam-ination, redirect examination, and re-cross-examination of an expert witnesswill proceed in due course based uponthe written testimony and any ampli-fying oral testimony.

(d) Failure to file and/or to exchangewritten statement. Failure to file and/orto exchange the written statement ofan expert witness as provided in thissection shall deprive the sponsoringparty of the use of the expert witnessand of the conclusions which that wit-ness would have presented.

§ 511.45 In camera materials.(a) Definition. In camera materials are

documents, testimony, or other datawhich by order of the Presiding Officeror the Administrator, as appropriateunder this part, are kept confidentialand excluded from the public record.Only materials exempt under the Free-dom of Information Act may be keptconfidential and excluded from thepublic record. Pursuant to 49 CFR part512, the Chief Counsel of the NHTSA isresponsible for determining whether analleged confidential business record isexempt from the Freedom of Informa-tion Act. The right of the Presiding Of-ficer, the Administrator and reviewingcourts to order disclosure of in cameramaterials is specifically reserved.

(b) In camera treatment of documentsand testimony. The Presiding Officer orthe Administrator, as appropriateunder this part, shall have authority,when good cause is found on the record,to order documents or testimony of-fered in evidence, whether admitted orrejected, to be received and preservedin camera. The order shall specify thelength of time for in camera treatmentand shall include:

(1) A description of the documentsand/or testimony;

(2) The reasons for granting in cameratreatment for the specified length oftime.

(c) Access and disclosure to parties. (1)The Administrator and Presiding Offi-

cer, and their immediate advisorystaffs shall have complete access to allin camera materials. All other partiesshall also have complete access to allin camera materials, except that theseparties may seek access only in accord-ance with paragraph (c)(2) of this sec-tion when:

(i) The in camera materials consist ofinformation obtained by the govern-ment from persons not parties to theproceeding; or

(ii) The in camera materials consist ofinformation provided by one of the par-ties to the proceeding which is con-fidential as to the other parties to theproceeding.

(2) Any party desiring access to and/or disclosure of the in camera materialsspecified in paragraph (c)(1) (i) and (ii)of this section for the preparation andpresentation of that party’s case shallmake a motion which sets forth thejustification therefor. The PresidingOfficer or the Administrator, as appro-priate under this part, may grant suchmotion on the record for substantialgood cause shown and shall enter a pro-tective order prohibiting unnecessarydisclosure and requiring other nec-essary safeguards. The Presiding Offi-cer or the Administrator, as appro-priate, may examine the in camera ma-terials and excise portions thereof be-fore disclosing the materials to themoving party.

(d) Segregation of in camera materials.In camera materials shall be segregatedfrom the public record and protectedfrom public view.

(e) Public release of in camera mate-rials. In camera materials constitute apart of the confidential records of theNHTSA and shall not be released to thepublic until the expiration of in cameratreatment.

(f) Reference to in camera materials. Inthe submission of proposed findings,conclusions, briefs, or other docu-ments, all parties shall refrain fromdisclosing specific details of in cameramaterials. Such refraining shall notpreclude general references to such ma-terials. To the extent that parties con-sider it necessary to include specificdetails of in camera materials, the ref-erences shall be incorporated into sepa-rate proposed findings, briefs, or otherdocuments marked ‘‘CONFIDENTIAL,


53


CONTAINS IN CAMERA MATERIAL,’’which shall be placed in camera and be-come part of the in camera record.These documents shall be served onlyon parties accorded access to the incamera materials in accordance withparagraph (c)(2) of this section.

§ 511.46 Proposed findings, conclu-sions, and order.

Within a reasonable time after theclosing of the record and receipt of thetranscript, all parties and participantsmay, simultaneously, file post-hearingbriefs, including proposed findings offact, conclusions of law and a proposedorder, together with reasons therefore.The Presiding Officer shall establish adate certain for the filing of the briefs,which shall not exceed 45 days after theclose of the record except in unusualcircumstances. The briefs shall be inwriting, shall be served upon all par-ties, and shall contain adequate ref-erences to the record and authoritiesrelied on. Replies shall be filed withinfifteen (15) days of the date for the fil-ing of briefs unless otherwise estab-lished by the Presiding Officer. Theparties and participants may waive ei-ther or both submissions.

§ 511.47 Record.

(a) Reporting and transcription. Hear-ings shall be recorded and transcribedunder the supervision of the PresidingOfficer by a reporter appointed by theAdministrator. The original transcriptshall be a part of the record and the of-ficial transcript. Copies of transcriptsare available from the reporter at acost not to exceed the maximum ratesfixed by contract between the NHTSAand the reporter.

(b) Corrections. Corrections of the of-ficial transcript may be made onlywhen they involve errors affecting sub-stance and then only in the mannerherein provided. The Presiding Officermay order corrections, either on his orher own motion or on motion of anyparty. The Presiding Officer shall de-termine the corrections to be made andso order. Corrections shall beinterlineated or otherwise inserted inthe official transcript so as not to ob-literate the original text.

§ 511.48 Official docket.(a) The official docket in adjudica-

tory proceedings will be maintained inthe Docket Section, Office of the Sec-retary, Room 4107, 400 Seventh StreetSW., Washington, DC 20590, and will beavailable for inspection during normalworking hours (9:00 a.m.–5:00 p.m.)Monday through Friday.

(b) Fees for production or disclosureof records contained in the officialdocket shall be levied as prescribed inthe Department of Transportation’sregulations on Public Availability ofInformation (49 CFR part 7).

[53 FR 15783, May 3, 1988]

§ 511.49 Fees.(a) Witnesses. Any person compelled

to appear in person in response to asubpoena or notice of oral examinationshall be paid at least the same attend-ance and mileage fees as are paid wit-nesses in the courts of the UnitedStates, in accordance with title 28,U.S.C., section 1821.

(b) Responsibility. The fees and mile-age referred to in this section shall bepaid by the party at whose instancewitnesses appear.

Subpart F—Decision§ 511.51 Initial decision.

(a) When filed. The Presiding Officershall endeavor to file an Initial Deci-sion with the Administrator withinsixty (60) days of the close of therecord, the filing of post-hearing briefs,or the filing of replies thereto, which-ever is latest.

(b) Content. The Initial Decision shallbe based upon a consideration of theentire record and it shall be supportedby reliable, probative, and substantialevidence. It shall include:

(1) Findings and conclusions, as wellas the reasons or bases therefor, uponthe material questions of fact, mate-rial issues of law, or discretion pre-sented on the record, and should, wherepracticable, be accompanied by specificpage citations to the record and tolegal and other materials relied upon.

(2) An appropriate order.(c) By whom made. The Initial Deci-

sion shall be made and filed by the Pre-siding Officer who presided over the


54

49 CFR Ch. V (10–1–98 Edition)§ 511.52

hearing, unless otherwise ordered bythe Administrator.

(d) Reopening of proceeding by presid-ing officer; termination of jurisdiction. (1)At any time prior to or concomitantwith the filing of the Initial Decision,the Presiding Officer may reopen theproceedings for the reception of furtherevidence.

(2) Except for the correction of cleri-cal errors, the jurisdiction of the Pre-siding Officer is terminated upon thefiling of the Initial Decision, unlessand until the proceeding is remandedto the Presiding Officer by the Admin-istrator.

§ 511.52 Adoption of initial decision.The Initial Decision and Order shall

become the Final Decision and Order ofthe Administrator forty (40) days afterissuance unless an appeal is noted andperfected or unless review is ordered bythe Administrator. Upon the expirationof the fortieth day, the Executive Sec-retary shall prepare, sign and enter anorder adopting the Initial Decision andOrder.

§ 511.53 Appeal from initial decision.(a) Who may file notice of intention.

Any party may appeal an Initial Deci-sion to the Administrator providedthat within ten (10) days after issuanceof the Initial Decision such party filesand serves a notice of intention to ap-peal.

(b) Appeal brief. The appeal shall be inthe form of a brief, filed within forty(40) days after service of the Initial De-cision, duly served upon all parties andparticipants. The appeal brief shallcontain, in the order indicated, the fol-lowing:

(1) A subject index of the matters inthe brief, with page references, and atable of cases (alphabetically ar-ranged), textbooks, statutes, and othermaterial cited, with page referencesthereto;

(2) A concise statement of the case;(3) A specification of the position

urged;(4) The argument, presenting clearly

the points of fact and law relied uponin support of the position on each ques-tion, with specific page references tothe record and the legal or other mate-rial relied upon; and

(5) A proposed form of order for theAdministrator’s consideration in lieuof the order contained in the InitialDecision.

(c) Answering brief. Within thirty (30)days after service of the appeal briefupon all parties and participants, anyparty may file an answering briefwhich shall also contain a subjectindex, with page references, and a tableof cases (alphabetically arranged),textbooks, statutes, and other materialcited, with page references thereto.Such brief shall present clearly thepoints of fact and law relied upon insupport of the position taken on eachquestion, with specific page referencesto the record and legal or other mate-rial relied upon.

(d) Participant’s brief. Within thirty(30) days after service of the appealbrief upon all parties and participants,any participant may file an appealbrief which should contain a subjectindex, with page references, and a tableof authorities being relied upon. Suchbrief shall present clearly the positiontaken by the participant on each ques-tion raised by the appellant(s).

(e) Cross appeal. If a timely notice ofappeal is filed by a party, any otherparty may file a notice of cross-appealwithin ten (10) days of the date onwhich the first notice of appeal wasfiled. Cross-appeals shall be included inthe answering brief and shall conformto the requirements for form, contentand filing specified in paragraph (c) ofthis section. If an appeal is noticed butnot perfected, no cross-appeal shall bepermitted and the notice of cross-ap-peal shall be deemed void.

(f) Reply brief. A reply brief shall belimited to rebuttal of matters in an-swering briefs, including mattersraised in cross-appeals. A reply briefshall be filed and within fourteen (14)days after service of an answeringbrief, or on the day preceding the oralargument, whichever comes first.

(g) Oral argument. The purpose of anoral argument is to emphasize andclarify the issues. Any party may re-quest oral argument. The Adminis-trator may order oral argument uponrequest or upon his or her own initia-tive. All oral arguments shall be re-ported and transcribed.


55


§ 511.54 Review of initial decision inabsence of appeal.

The Administrator may, by order, re-view a case not otherwise appealed bya party. Thereupon the parties shalland participants may file briefs in ac-cordance with § 511.53(b), (c), (d), (e),and (f) except that the Administratormay, in his or her discretion, establisha different briefing schedule in his orher order. Any such order shall issuewithin forty (40) days of issuance of theInitial Decision. The order shall setforth the issues which the Adminis-trator will review.

§ 511.55 Final decision on appeal or re-view.

(a) Upon appeal from or review of anInitial Decision, the Administratorshall consider such parts of the recordas are cited or as may be necessary toresolve the issues presented and, in ad-dition, shall, to the extent necessary ordesirable, exercise all the powers whichhe or she could have exercised if he orshe had made the Initial Decision.

(b) In rendering his or her decision,the Administrator shall adopt, modify,or set aside the findings, conclusions,and order contained in the Initial Deci-sion, and shall include in his or herFinal Decision a statement of the rea-sons or bases for his or her action. TheAdministrator shall issue an order re-flecting his or her Final Decision.

§ 511.56 Reconsideration.Within twenty (20) days after

issuance of a Final Decision and Order,any party may file with the Adminis-trator a petition for reconsideration ofsuch decision or order, setting forththe relief desired and the grounds insupport thereof. Any party desiring tooppose such a petition shall file an an-swer thereto within ten (10) days afterservice of the petition. The filing of apetition for reconsideration shall notstay the effective date of the Decisionand Order or toll the running of anystatutory time period affecting the de-cision or order unless specifically soordered by the Administrator.

§ 511.57 Effective date of order.(a) Consent orders. An order which has

been issued following acceptance of anoffer of settlement in accordance with

§ 511.26 becomes effective uponissuance.

(b) Litigated orders. All other ordersbecome effective upon the expiration ofthe statutory period for court reviewspecified in section 508(c)(1) of theMotor Vehicle Information and CostSavings Act, title 15, U.S.C. section2008(c)(1), Pub. L. 94–163, 89 Stat. 911,or, if a petition for review has beenfiled, upon court affirmance of the Ad-ministrator’s order.

Subpart G—Settlement Procedurein Cases of Violation of Aver-age Fuel Economy Standards

§ 511.61 Purpose.

This subpart establishes the proce-dures and requirements necessary toobtain a settlement of a case of viola-tion of section 507 (1) or (2) of theMotor Vehicle Information and CostSavings Act, as amended, Pub. L. 94–163, 89 Stat. 911 (15 U.S.C. section2007(1)(2)). No settlement of such casesmay be had except as in accordancewith this subpart.

§ 511.62 Definitions.

Average fuel economy standard meansan average fuel economy standard es-tablished by or pursuant to the MotorVehicle Information and Cost SavingsAct.

Insolvency means the inability tomeet expenses when due.

Settlement means a compromise,modification, or remission of a civilpenalty assessed under this part for aviolation of an average fuel economystandard.

§ 511.63 Criteria for settlement.

Settlement of a case of violation ofan average fuel economy standard isdiscretionary with the Administrator.The Administrator will consider settle-ment only to the extent:

(a) Necessary to prevent the insol-vency or bankruptcy of the personseeking settlement, or

(b) That the violation of the averagefuel economy standard resulted, asshown by the person seeking settle-ment, from an act of God, a strike, orfire, or


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49 CFR Ch. V (10–1–98 Edition)§ 511.64

(c) That modification of a civil pen-alty assessed under this part is nec-essary to prevent lessening of competi-tion, as determined and as certified bythe Federal Trade Commission undersection 508(b)(4) of the Motor VehicleInformation and Cost Savings Act,Pub. L. 94–163, 89 Stat. 911 (15 U.S.C.section 2008(b)(4)).

§ 511.64 Petitions for settlement; tim-ing, contents.

(a) A petition seeking settlementunder this subpart must be filed within30 days after the issuance of a finalorder assessing a civil penalty for aviolation of an average fuel economystandard.

(b)(1) A petition for settlementshould be sufficient to allow the Ad-ministrator to determine that at leastone of the criteria set out in § 511.63 issatisfied, and that the public interestwould be served by settlement.

(2) A petition asserting that settle-ment is necessary to prevent bank-ruptcy or insolvency must include:

(i) Copies of all pertinent financialrecords, auditor’s reports, and docu-ments that show that the imposition ofa civil penalty would cause insolvency,or would cause a company to do an actof bankruptcy, and

(ii) A payment schedule that wouldallow the petitioner to pay a civil pen-alty without resulting in insolvency oran act of bankruptcy.

(3) A petition asserting that the vio-lation of the average fuel economystandard was caused by an act of God,fire, or strike must describe correctiveand ameliorative steps taken to miti-gate the effects of the act of God, fire,or strike.

(4) A petition based on a certificationby the Federal Trade Commission thatmodification of the civil penalty as-sessed is necessary to prevent a sub-stantial lessening of competition mustinclude a certified copy of:

(i) The application to the FederalTrade Commission for a certificationunder section 508(b)(4) of the Motor Ve-hicle Information and Cost SavingsAct, Pub. L. 94–163, 89 Stat. 911 (15U.S.C. 2008(b)(4)), and materials sup-porting the application.

(ii) The administrative record of anyFederal Trade Commission proceedingheld in regard to the application, and

(iii) The certification by the FederalTrade Commission.

(c) It is the policy of the NationalHighway Traffic Safety Administrationthat unconditional settlements of vio-lations of average fuel economy stand-ards are not in the public interest, andabsent special and extraordinary cir-cumstances, will not be allowed. All pe-titions for settlement shall contain asection proposing conditions for settle-ment. Conditions for settlement can bespecific acts designed to lead to the re-duction of automotive fuel consump-tion, which the petitioner is not other-wise required to perform pursuant toany statute, regulation, or administra-tive or judicial order, such as sponsor-ing public education programs, adver-tising, accelerating commercial appli-cation of technology, acceleratingtechnology development programs, ormaking public the results of privatelyperformed studies, surveys, or researchactivities.

§ 511.65 Public comment.Notice and opportunity for comment

are provided to the public in regard tosettlements under this part. Subject to§ 511.66, notice of receipt of a petitionfor settlement is published in the FED-ERAL REGISTER, and a copy of such pe-titions and any supporting informationis placed in a public docket. Any settle-ment agreed to by the Administratorshall be placed in the public docket for30 days so that interested persons maycomment thereon. No settlement isbinding until the completion of thatthirty day period.

§ 511.66 Confidential business informa-tion.

The Administrator shall have author-ity to segregate from the public docketand to protect from public view infor-mation in support of a petition for set-tlement which has been determined tobe confidential business information.The provisions of 15 U.S.C. 2005(d) per-taining to discretionary release by theAdministrator of and to limited disclo-sure of information determined to beconfidential business information shallapply to this section.


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§ 511.67 Settlement order.If, in accordance with this subpart,

the Administrator allows a settlementof a case of violation of an average fueleconomy standard, an order of settle-ment shall be issued, setting out theterms of the settlement, and contain-ing a brief discussion of the factors un-derlying the exercise of the Adminis-trator’s discretion in allowing the set-tlement, including a discussion of com-ments received under § 511.65. If the Ad-ministrator rejects a petition for set-tlement, the Administrator shall givewritten notice of the rejection and thereasons for the rejection to the partiesand the Presiding Officer.

[53 FR 15783, May 3, 1988]

Subpart H—Appearances;Standards of Conduct

§ 511.71 Who may make appearances.A party or participant may appear in

person, or by a duly authorized officer,partner, regular employee, or otheragent of this party or participant, orby or with counsel or other duly quali-fied representative, in any proceedingunder this part.

§ 511.72 Authority for representation.Any individual acting in a represent-

ative capacity in any adjudicative pro-ceeding may be required by the Presid-ing Officer or the Administrator toshow his or her authority to act insuch capacity. A regular employee of aparty who appears on behalf of theparty shall be required by the Presid-ing Officer or the Administrator toshow his or her authority to so appear.

§ 511.73 Written appearances.(a) Any person who appears in a pro-

ceeding shall file a written notice ofappearance with the Executive Sec-retary or deliver a written notice of ap-pearance to the reporter at the hear-ing, stating for whom the appearance ismade and the name, address, and tele-phone number (including area code) ofthe person making the appearance andthe date of the commencement of theappearance. The written appearanceshall be made a part of the record.

(b) Any person who has previouslyappeared in a proceeding may withdraw

his or her appearance by filing a writ-ten notice of withdrawal of appearancewith the Docket Section. The notice ofwithdrawal shall state the name, ad-dress, and telephone number (includingarea code) of the person withdrawingthe appearance, for whom the appear-ance was made, and the effective dateof the withdrawal of the appearance,and such notice of withdrawal shall befiled within five (5) days of the effec-tive date of the withdrawal of the ap-pearance.


§ 511.74 Attorneys.An attorney at law who is admitted

to practice before the Federal courts orbefore the highest court of any State,the District of Columbia, or any terri-tory or Commonwealth of the UnitedStates, may practice before theNHTSA. An attorney’s own representa-tion that he or she is in good standingbefore any of such courts shall be suffi-cient proof thereof, unless otherwiseordered by the Presiding Officer or theAdministrator.

§ 511.75 Persons not attorneys.(a) Any person who is not an attor-

ney at law may be admitted to appearin an adjudicative proceeding if thatperson files proof to the satisfaction ofthe Presiding Officer that he or shepossesses the necessary legal, technicalor other qualifications to render valu-able service in the proceeding and isotherwise competent to advise and as-sist in the presentation of matters inthe proceedings. An application by aperson not an attorney at law to ap-pear in a proceeding shall be submittedin writing to the Docket Section, notlater than thirty (30) days prior to thehearing in the proceedings. The appli-cation shall set forth the applicant’squalifications to appear in the proceed-ings.

(b) No person who is not an attorneyat law and whose application has notbeen approved shall be permitted to ap-pear in the Administration’s proceed-ings. However, this provision shall notapply to any person who appears beforethe NHTSA on his or her own behalf oron behalf of any corporation, partner-ship, or association of which the person


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49 CFR Ch. V (10–1–98 Edition)§ 511.76

is a partner, officer, or regular em-ployee.


§ 511.76 Qualifications and standardsof conduct.

(a) The NHTSA expects all personsappearing in proceedings before it toact with integrity, with respect, and inan ethical manner. Business transactedbefore and with the NHTSA shall be ingood faith.

(b) To maintain orderly proceedings,the Presiding Officer or the Adminis-trator, as appropriate under this part,may exclude parties, participants, andtheir representatives for refusal tocomply with directions, continued useof dilatory tactics, refusal to adhere toreasonable standards of orderly andethical conduct, failure to act in goodfaith, or violation of the prohibitionagainst certain ex parte communica-tions. The Presiding Officer may, in ad-dition to the above sanctions, deny ac-cess to additional in camera materialswhen a party or participant publiclyreleases such materials without au-thorization.

(c) An excluded party, participant, orrepresentative thereof may petitionthe Administrator to entertain an in-terlocutory appeal in accordance with§ 511.24. If, after such appeal, the rep-resentative of a party or participant, isexcluded, the hearing shall, at the re-quest of the party or participant, besuspended for a reasonable time so thatthe party or participant may obtainanother representative.

§ 511.77 Restrictions as to formermembers and employees.

The postemployee restrictions appli-cable to former Administrators andNHTSA employees, as set forth in 18U.S.C. 207, shall govern the activitiesof former Administrators and NHTSAemployees in matters connected withtheir former duties and responsibil-ities.

§ 511.78 Prohibited communications.(a) Applicability. This section is appli-

cable during the period commencingwith the date of issuance of a com-plaint and ending upon final NHTSAaction in the matter.

(b) Definitions. (1) ‘‘Decision-maker’’means those NHTSA personnel whorender decisions in adjudicative pro-ceedings under this part, or who adviseofficials who render such decisions, in-cluding:

(i) The Administrator,(ii) The Administrative Law Judges;(2) ‘‘Ex parte communication’’

means:(i) Any written communication other

than a request for a status report onthe proceeding made to a decision-maker by any person other than a deci-sionmaker which is not served on allparties,

(ii) Any oral communication otherthan a request for a status report onthe proceeding made to a decision-maker by any person other than a deci-sionmaker without advance notice tothe parties to the proceeding and op-portunity for them to be present.

(c) Prohibited ex parte communications.Any oral or written ex parte commu-nication relative to the merits of a pro-ceeding under this part is a prohibitedex parte communication, except as pro-vided in paragraph (d) of this section.

(d) Permissible ex parte communica-tions. The following communicationsshall not be prohibited under this sec-tion:

(1) Ex parte communications author-ized by statute or by this part.

(2) Any staff communication concern-ing judicial review or judicial enforce-ment in any matter pending before ordecided by the Administrator.

(e) Procedures for handling prohibitedex parte communication. (1) Prohibitedwritten ex parte communication. To theextent possible, a prohibited written exparte communication received by anyNHTSA employee shall be forwarded tothe Docket Section rather than to a de-cisionmaker. A prohibited written exparte communication which reaches adecisionmaker shall be forwarded bythe decisionmaker to the Docket Sec-tion. If the circumstances in which aprohibited ex parte written communica-tion was made are not apparent fromthe communication itself, a statementdescribing those circumstances shall beforwarded with the communication.

(2) Prohibited oral ex parte commu-nication. (i) If a prohibited oral ex


59

Nat’l Highway Traffic Safety Admin., DOT Pt. 511, App. I

parte communication is made to a de-cisionmaker, he or she shall advise theperson making the communicationthat the communication is prohibitedand shall terminate the discussion.

(ii) In the event of a prohibited oralex parte communication, the decision-maker shall forward to the Docket Sec-tion a dated statement containing suchof the following information as isknown to him/her:

(A) The title and docket number ofthe proceeding;

(B) The name and address of the per-son making the communication andhis/her relationship (if any) to the par-ties to the proceeding;

(C) The date and time of the commu-nication, its duration, and the cir-cumstances (telephone call, personalinterview, etc.) under which it wasmade;

(D) A brief statement of the sub-stance of the matters discussed;

(E) Whether the person making thecommunication persisted in doing soafter being advised that the commu-nication was prohibited.

(3) All communications and state-ments forwarded to the Docket Sectionunder this section shall be placed inthe public file which shall be associ-ated with, but not made a part of, therecord of the proceedings to which thecommunication or statement pertains.

(4) Service on parties. The Adminis-trator shall serve a copy of each com-munication and statement forwardedunder this section on all parties to theproceedings. However, if the parties arenumerous, or if other circumstancessatisfy the Administrator that serviceof the communication or statementwould be unduly burdensome, he or shemay, in lieu of service, notify all par-ties in writing that the communicationor statement has been made and filedand that it is available for inspectionand copying.

(5) Service on maker. The Adminis-trator shall forward to the person whomade the prohibited ex parte commu-nication a copy of each communicationor statement filed under this section.

(f) Effect of ex parte communications.No prohibited ex parte communicationshall be considered as part of therecord for decision unless introduced

into evidence by a party to the pro-ceedings.

(g) Sanctions. A party or participantwho makes a prohibited ex parte com-munication, or who encourages or so-licits another to make any such com-munication, may be subject to any ap-propriate sanction or sanctions, includ-ing, but not limited to, exclusion fromthe proceedings and adverse rulings onthe issues which are the subject of theprohibited communication.


APPENDIX I—FINAL PREHEARING ORDER

Case Caption

Final Prehearing Order

A prehearing conference was held in thismatter pursuant to Rule 21 of the Adminis-tration’s Rules of Practice for AdjudicativeProceedings, on the llllllllll dayof llllllllll, 19ll, at ll o’clockl M.

Counsel appeared as follows:

For the Administration staff:

For the Respondent(s):Others:

1. NATURE OF ACTION AND JURISDIC-TION.

This is an action for llllllllll

llllllllllllllllllllllll

and the jurisdiction of the Administration isinvolved under Section ll of Title —.U.S.C. The jurisdiction of the Administra-tion is (not) disputed. The questions of juris-diction was decided as follows:

2. STIPULATIONS AND STATEMENTS.

The following stipulations and statementswere submitted, attached to, and made apart of this order:

(a) A comprehensive written stipulation orstatement of all uncontested facts;

(b) A concise summary of the ultimatefacts as claimed by each party. (ComplaintCounsel must set forth the claimed facts,specifically; for example, if violation isclaimed, Complaint Counsel must assert spe-cifically the acts of violation complained of;each respondent must reply with equal clar-ity and detail.)

(c) Written stipulations or statements set-ting forth the qualifications of the expertwitnesses to be called by each party;

(d) A written list or lists of the witnesseswhom each party will call, a written list orlists of the additional witnesses whom eachparty may call, and a statement of the sub-ject on which each witness will testify;


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49 CFR Ch. V (10–1–98 Edition)Pt. 511, App. I

(e) An agreed statement of the contestedissues of fact and of law, and/or separatestatements by each party or any contestedissues of fact and law not agreed to;

(f) A list of all depositions to be read intoevidence and statements of any objectionsthereto;

(g) A list and brief description of anycharts, graphs, models, schematic diagrams,and similar objects that will be used in open-ing statements or closing arguments, butwill not be offered in evidence. If any othersuch objects are to be used by any party,they will be submitted to opposing counselat least three days prior to hearing. If thereis then any objection to their use, the dis-pute will be submitted to the Presiding Offi-cer at least one day prior to hearing;

(h) Written waivers of claims or defenseswhich have been abandoned by the parties.The foregoing were modified at the pretrialconference as follows:

[To be completed at the conference itself. Ifnone, recite ‘‘none’’]

3. COMPLAINT COUNSEL’S EVIDENCE.3.1 The following exhibits were offered by

Complaint Counsel, received in evidence, andmarked as follows:

[Identification number and brief descriptionof each exhibit]

The authenticity of these exhibits has beenstipulated.

3.2 The following exhibits were offered bythe Complaint Counsel and marked for iden-tification. There was reserved to the re-spondent(s) and party intervenors, if any,the right to object to their receipt in evi-dence on the grounds stated:

[Identification number and brief descriptionof each exhibit. State briefly ground of ob-jection, e.g., competency, relevancy, mate-riality]

4. RESPONDENT’S EVIDENCE.4.1 The following exhibits were offered by

the respondent(s), received in evidence, andmarked as herein indicated:

[Identification number and brief descriptionof each exhibit]

The authenticity of these exhibits has beenstipulated.

4.2 The following exhibits were offered bythe respondent(s) and marked for identifica-tion. There was reserved to Complaint Coun-sel and party intervenors, if any, the right toobject to their receipt in evidence on thegrounds stated:[Identification number and brief description

of each exhibit. State briefly ground of ob-jection, e.g., competency, relevancy, mate-riality]5. ADDITIONAL ACTIONS.

The following additional action was taken:

[Amendments to pleadings, agreements ofthe parties, disposition of motions, separa-tion of issues of liability and remedy, etc.,if necessary]

6. LIMITATIONS AND RESERVATIONS.

6.1 Each of the parties has the right tofurther supplement the list of witnesses notlater than ten (10) days prior to trial by fur-nishing opposing counsel with the name andaddress of the witness and general subjectmatter of his or her testimony and filing asupplement to this pretrial order. Thereafteradditional witnesses may be added only afterapplication to the Presiding Officer, for goodcause shown.

6.2 Rebuttal witnesses not listed in theexhibits to this order may be called only ifthe necessity of their testimony could notreasonably be foreseen ten (10) days prior totrial. If it appears to counsel at any time be-fore trial that such rebuttal witnesses willbe called, notice will immediately be givento opposing counsel and the Presiding Offi-cer.

6.3 The probable length of hearing is —days. The hearings will be commenced on thell day of lllll, 19ll, at ll o’clockl M. at (location) lllll.

6.4 Prehearing briefs will be filed notlater than 5:00 p.m. on llll. (Insert datenot later than ten (10) days prior to hearing.)All anticipated legal questions, includingthose relating to the admissibility of evi-dence, must be covered by prehearing briefs.

This prehearing order has been formulatedafter a conference at which counsel for therespective parties appeared. Reasonable op-portunity has been afforded counsel for cor-rections or additions prior to signing. It willcontrol the course of the hearing, and it maynot be amended except by consent of the par-ties and the Presiding Officer, or by order ofthe Presiding Officer to prevent manifest in-justice.


(Presiding Officer’s Name)(Presiding Officer’s Title)

APPROVED AS TO FORM AND SUB-STANCE

Date: lllll.


Complaint Counsel.


Attorney for Respondent(s).

NOTE: Where intervenors appear pursuantto § 511.17 the prehearing order may be suit-ably modified; the initial page may be modi-fied to reflect the intervention.
