petition filed under this subsection must be confined to new questions raised by the decision or final order and upon which the petitioner had no opportunity to argue before the Commission. Any party desiring to oppose such a petition shall file an answer thereto within ten (10) days after service upon him of the petition. The filing of a petition for reconsideration shall not operate to stay the effective date of the decision or order or to toll the running of any statutory time period affecting such decision or order unless specifically so ordered by the Commission.

Subpart G-Reports of Compliance § 3.61 Reports of compliance.

(a) In every proceeding in which the Commission has issued an order, pursuant to the provisions of section 5 of the Federal Trade Commission Act or section 11 of the Clayton Act, as amended, and except as otherwise specifically proIvided in any such order, each respondent named in such order shall file with the Commission, within sixty (60) days after service thereof, or within such other time as may be provided by the order or the rules in this chapter, a report in writing, signed by the respondent, setting forth in detail the manner and form of his compliance with the order, and shall thereafter file with the Commission such further signed, written reports of compliance as it may require. Reports of compliance shall be under oath if so requested. Where the order prohibits the use of a false advertisement of a food, drug, device, or cosmetic which may be injurious to health because of results from its use under the conditions prescribed in the advertisement, or under such conditions as are customary or usual, or if the use of such advertisement is with intent to defraud or mislead, or where the order was issued under the Flammable Fabrics Act, or in any other case where the circumstances so warrant, the order may provide for an interim report stating whether and how respondents intend to comply to be filed within ten (10) days after service of the order. When court review of an order of the Commission is pending, the respondent shall file only such reports of compliance as the court may require. Thereafter, the time for filing report of compliance shall begin to run de novo from the final judicial determination, except that if no petition for certiorari has

been filed following affirmance of the order of the Commission by a court of appeals, the compliance report shall be due the day following the date on which the time expires for the filing of such petition. The Commission will review such reports of compliance and may advise each respondent whether the actions set forth therein evidence compliance with the Commission's order. The Commission may, however, institute proceedings, including certification of facts to the Attorney General pursuant to the provisions of section 5(1) of the Federal Trade Commission Act (15 U.S.C. 45 (1)) and section 11 (1) of the Clayton Act, as amended (15 U.S.C. 21(1)), to enforce compliance with an order, without advising a respondent whether the actions set forth in a report of compliance evidence compliance with the Commission's order or without prior notice of any kind to a respondent.

(b) The Commission has delegated to the Directors of the Bureaus of Competition and Consumer Protection, without power of redelegation, the authority to approve compliance reports, reject compliance reports, and to close compliance investigations. This delegation does not apply to compliance with orders involving section 7 of the Clayton Act, to any matter which has received previous Commission consideration as to compliance or in which the Commission or any Commissioner has expressed an interest, any matter proposed to be closed by reason of expense of investigation or testing, or any matter involving substantial questions as to the public interest, Commission policy or statutory construction, in each of which type of case a report with recommendation will be made to the Commission. The approvals, rejections, and closings shall not be effective until the file relating to the subject matter has been transmitted to the Secretary and he shall have advised the Commission of the Bureau Director's determination and no one member within five (5) working days thereafter shall have objected to such determination. If upon the expiration of such 5-day period no Commissioner shall have objected, the Secretary shall enter upon the records of the Commission the determination of the matter and take such other action as is required.

(c) The Commission has delegated to the Directors and Assistant Directors of the Bureaus of Competition and Consumer Protection, without power of redelegation, the authority, for good cause

shown, to extend the time within which reports of compliance with orders to cease and desist may be filed. It is to be noted, however, that an extension of time within which a report of compliance may be filed, or the filing of a report which does not evidence full compliance with the order, does not in any circumstances suspend or relieve a respondent from his obligation under the law with respect to compliance with such order. An order of the Commission to cease and desist becomes final on the date and under the conditions provided in section 5 (g), (h), (i), (j), and (k) of the Federal Trade Commission Act (15 U.S.C. 45 (g), (h), (i), (j), and (k)) and section 11 (g), (h), (i), (j), and (k) of an Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes, as amended-the Clayton Act, as amended (15 U.S.C. 21 (g), (h), (i), (j), and (k)). Any person, partnership or corporation against which an order to cease and desist has been issued who is not in full compliance with such order on and after the date provided in these statutes for the order to become final is in violation of such order and is subject to an immediate action for civil penalties.

(d) Any respondent subject to a Commission order may request advice from the Commission as to whether a proposed course of action, if pursued by it, will constitute compliance with such order. The request for advice should be submitted in writing to the Secretary of the Commission and should include full and complete information regarding the proposed course of action. On the basis of the facts submitted, as well as other information available to the Commission, the Commission will inform the respondent whether or not the proposed course of action, if pursued, would constitute compliance with its order. A request ordinarily will be considered inappropriate for such advice: (1) Where the course of action is already being followed by the requesting party; (2) where the same or substantially the same course of action is under investigation or is or has been the subject of a current proceeding, order, or decree initiated or obtained by the Commission or another governmental agency; or (3) where the proposed course of action or its effects may be such that an informed decision thereon cannot be made or could be made only after extensive investigation, clinical study, testing or collateral in

quiry. Furthermore, the filing of a request for advice under this paragraph does not in any circumstances suspend or relieve a respondent from his obligation under the law with respect to his compliance with the order. He must in any event be in full compliance on and after the date the order becomes final as prescribed by statute referred to in paragraph (b) of this section. Advice to respondents under this paragraph will be published by the Commission in the same manner and subject to the same restrictions and considerations as advisory opinions under § 1.4 of this chapter.

(e) The Commission may at any time reconsider its approval of any report of compliance or any advice given under this section and, where the public interest requires, rescind or revoke its prior approval or advice. In such event the respondent will be given notice of the Commission's intent to revoke or rescind and will be given an opportunity to submit its views to the Commission. The Commission will not proceed against a respondent for violation of an order with respect to any action which was taken in good faith reliance upon the Commission's approval or advice under this section, where all relevant facts were fully, completely, and accurately presented to the Commission and where such action was promptly discontinued upon notification of rescission or revocation of the Commission's approval.

(f) All applications for approval of proposed divestitures, acquisitions, or similar transactions subject to Commission review under outstanding orders, together with supporting materials, will be placed on the public record as soon after they are received as circumstances permit, except for information for which confidential classification has been requested, with a showing of justification therefor, and which the Commission, with due regard to statutory restrictions, its rules, and the public interest, has determined should not be made public. Also, any communications, written or oral, concerning such proposed transactions, received by any member of the Commission, or by any employee involved in the decisional process, will be placed on the public record immediately after their receipt. In the case of an oral communication, the member or employee shall immediately furnish the Commission with a memorandum setting forth the full contents of such communication and the circumstances thereof and such

memorandum will immediately be placed on the public record. Within thirty (30) days after such applications and materials are placed on the public record, any person may file for the public record written objections or comments with the Secretary of the Commission. All responses to applications for approval of proposed divestitures, acquisitions, or similar transactions subject to Commission review under outstanding orders, together with a statement of supporting reasons, will be published when made.

[32 F.R. 8449, June 13, 1967, as amended at 34 F.R. 17432, Oct. 29, 1969; 35 F.R. 10584, June 30, 1970; 35 F.R. 13726, Aug. 28, 1970; 36 F.R. 9008, May 18, 1971; 37 F.R. 5610, Mar. 17, 1972]

Subpart H--Reopening of
Proceedings

§3.71 Authority.

(a) Before statutory review. At any time prior to the expiration of the time allowed for filing a petition for review or prior to the filing of the transcript of the record of a proceeding in a U.S. court of appeals pursuant to a petition for review, the Commission may upon its own initiative and without prior notice to the parties reopen the proceeding and enter a new decision modifying or setting aside the whole or any part of the findings as to the facts, conclusions, rule, order, or opinion issued by the Commission in such proceeding.

(b) After decision has become final. (1) Whenever the Commission is of the opinion that changed conditions of fact or law or the public interest may require that a Commission decision containing a rule or order which has become effective, or an order to cease and desist which has become final by reason of court affirmance or expiration of the statutory period for court review without a petition for review having been filed, or a Commission decision containing an order dismissing a proceeding, should be altered, modified, or set aside in whole or in part, the Commission will serve upon

each person subject to such decision (in the case of proceedings instituted under §3.13, such service may be by publication in the FEDERAL REGISTER) an order to show cause, stating the changes it proposes to make in the decision and the reasons they are deemed necessary. Within thirty (30) days after service of such order to show cause, any person served may file an answer thereto. Any person not responding to the order within the time allowed may be deemed to have consented to the proposed changes.

(2) Whenever any person subject to a decision containing a rule or order which has become effective, or an order to cease and desist which has become final, is of the opinion that changed conditions of fact or law require that said rule or order be altered, modified, or set aside, or that the public interest so requires, such person may file with the Commission a petition requesting a reopening of the proceeding for that purpose. The petition shall state the changes desired, the grounds therefor, and shall include, when available, such supporting evidence and argument as will in the absence of a contest provide the basis for a Commission decision on the petition. Within thirty (30) days after service of such a petition, the Director of the appropriate bureau of the Commission shall file an answer.

(3) Whenever an order to show cause or petition to reopen is not opposed, or if opposed but the pleadings do not raise issues of fact to be resolved, the Commission, in its discretion, may decide the matter on the order to show cause or petition and answer thereto, or it may serve upon the parties (in the case of proceedings instituted under § 3.13, such service may be by publication in the FEDERAL REGISTER) a notice of hearing, setting forth the date when the cause will be heard. In such a case, the hearing will be limited to the filing of briefs and may include oral argument when deemed necessary by the Commission. When the pleadings raise substantial factual issues, the Commission will direct such hearings as it deems appropriate, including hearings for the receipt of evidence by it or by an administrative law judge. Unless otherwise ordered and insofar as practicable, hearings before an administrative law judge to receive evidence shall be conducted in accordance with Subparts B, C, D, and E of Part 3 of this chapter. Upon conclusion of hearings before an administrative law judge, the

4.6

4.7

4.8

4.9

4.10

4.11 4.12

Cooperation with other agencies.
Ex parte communications.

Availability of public information.
Public records.

Confidential information.

Release of confidential information. Privilege against self-incrimination. AUTHORITY: The provisions of this Part 4 issued under sec. 6, 38 Stat. 721; 15 U.S.C. 46, unless otherwise noted.

SOURCE: The provisions of this Part 4 appear at 32 F.R. 8456, June 13, 1967, unless otherwise noted.

NOTE: Nomenclature changes appearing in Part 4 see 37 F.R. 22611, Oct. 20, 1972.

(a) Qualifications. (1) Members of the bar of a Federal court or of the highest court of any State or Territory of the United States are eligible to practice before the Commission.

(2) Any individual or member of a partnership involved in any proceeding or investigation may appear on behalf of himself or of such partnership upon adequate identification. A corporation or association may be represented by a bona fide officer thereof upon a showing of adequate authorization.

(b) Restrictions as to former members and employees. (1) Except as specifically authorized by the Commission, no former member or employee of the Commission shall appear as attorney or counsel or otherwise participate through any form of professional consultation or assistance in any proceeding or investigation, formal or informal, which was pending in any manner in the Commission while such former member or employee served with the Commission.

(2) In cases to which subparagraph (1) of this paragraph is applicable, a former member or employee of the Commission may request authorization to appear or participate in a proceeding or investigation by filing with the Secretary

of the Commission a written application therefor, disclosing the following relevant information: (i) The nature and extent of the former member's or employee's participation in, knowledge of, and connection with the proceeding or investigation during his service with the Commission; (ii) whether the files of the proceeding or investigation came to his attention; (iii) whether he was employed in the same bureau, division, or administrative unit in which the proceeding or investigation is or has been pending; (iv) whether he worked directly or in close association with Commission personnel assigned to the proceeding or investigation; (v) whether during his service with the Commission he was engaged in any matter concerning the individual, company, or industry involved in the proceeding or investigation.

(3) The requested authorization will not be given in any case (i) where it appears that the former member or employee during his service with the Commission participated personally and substantially in the proceeding or investigation, or (ii) where the application is filed within one (1) year after termination of the former member's or employee's service with the Commission and it appears that within a period of one (1) year prior to the termination of his service the former member or employee was officially responsible for the proceeding or investigation. In other cases, authorization will be given where the Commission is satisfied that the appearance or participation will not involve any actual or apparent impropriety.

(4) In any case in which a former member or employee of the Commission is prohibited under this section from appearing or participating in a Commission proceeding or investigation, any partner or legal or business associate of such former member or employee shall likewise be so prohibited, unless: (i) Such partner or legal or business associate files with the Commission an affidavit that in connection with the matter the services of the disqualified former member or employee will not be utilized in any respect and the matter will not be discussed with him in any manner, and that the disqualified former member or employee shall not share, directly or indirectly, in any fees or retainers received for services rendered in connection with such proceeding or investigation; (ii) the disqualified former member or employee

files an affidavit stating that he will not participate in the matter in any manner, and that he will not discuss it with any person involved in the matter; and (iii) upon the basis of such affidavits, the Commission finds that the appearance or participation by the partner or associate would not involve any actual or apparent impropriety.

(c) Notice of appearance. Any attorney desiring to appear before the Commission or an administrative law judge on behalf of a person or party shall file with the Secretary of the Commission a written notice of his appearance, stating the basis of his eligibility under this section. No other application shall be required for admission to practice, and no register of attorneys will be maintained.

(d) Standards of conduct; disbarment. (1) All attorneys practicing before the Commission shall conform to the standards of ethical conduct required of practitioners in the courts of the United States and by the bars of which the attorneys are members.

(2) If for good cause shown, the Commission shall be of the opinion that any attorney is not conforming to such standards, or that he has been otherwise guilty of conduct warranting disciplinary action, the Commission may issue an order requiring such attorney to show cause why he should not be suspended or disbarred from practice before the Commission. The alleged offender shall be granted due opportunity to be heard in his own defense and may be represented by counsel. Thereafter, if warranted by the facts, the Commission may issue against the attorney an order of reprimand, suspension, or disbarment. § 4.2 Requirements as to form and filing of documents other than correspondence.

(a) Filing. Except as otherwise provided, all documents submitted to the Commission shall be addressed to and filed with the Secretary of the Commission: Provided, however, That in any instance informal applications or requests may be submitted directly to the official in charge of any office of the Commission or to the Director or Assistant Director of the appropriate bureau or office.

(b) Title. Documents shall clearly show the file or docket number and title of the action in connection with which they are filed.

(c) Copies. Twenty-five (25) copies of a notice of intention to appeal and of all briefs before the Commission shall be filed; twenty (20) copies of all other documents shall be filed, with the exception of notices of appearances and reports of compliance, as to which only two (2) copies of each need be filed.

(d) Form. (1) Documents filed with the Secretary of the Commission, other than briefs in support of appeals from initial decisions, shall be printed, typewritten, or otherwise processed in permanent form and on good unglazed paper.

(2) Briefs in suport of uppeals from initial decisions shall be printed or otherwise reproduced in equally clear and legible form.

(3) If printed, documents shall be on good unglazed paper seven (7) inches by ten (10) inches. The type shall not be less than ten (10) point adequately leaded. Citations and quotations shall not be less than ten (10) point single leaded, and footnotes shall not be less than eight (8) point single leaded. The printed line shall not exceed four and three-quarter (434) inches in length.

(4) If typewritten, documents shall be on paper not less than eight (8) inches nor more than eight and one-half (82) inches by not less than ten and onehalf (102) inches nor more than eleven (11) inches.

(5) All documents must be bound on the left side. The left margin of each page must be at least one and one-half (12) inches and the right margin at least one (1) inch.

(e) Signature. (1) One (1) copy of each document filed shall be signed by an attorney of record for the party or, in the case of parties not represented by counsel, by the party himself, or by a partner if a partnership, or by an officer of the party if it is a corporation or an unincorporated association.

(2) Signing a document constitutes a representation by the signer that he has read it, that to the best of his knowledge, information, and belief, the statements made in it are true, and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this section, it may be stricken as sham and false and the proceeding may go forward as though the document had not been filled.