(ii) of the section, applications for review of a ruling will not be entertained by the Commission prior to its review of the record pursuant to § 1.14, unless the presiding officer certifies in writing to the Commission that a ruling involves a controlling question of law or policy as to which there is substantial ground for difference of opinion and that an immediate review of the ruling may materially advance the ultimate termination of the proceeding or subsequent review will be an inadequate remedy. Within five (5) days after a ruling by the presiding officer, any interested person may petition to presiding officer for certification of that ruling to the Commission. Certification of a ruling shall not stay the rulemaking proceeding unless the presiding officer or the Commission shall so order. Within five (5) days after the presiding officer's certification of a question to the Commission for its determination any interested person may file an application for review, not to exceed fifteen (15) pages. Submissions by other interested persons, not to exceed fifteen (15) pages may be made within ten (10) days of the presiding officer's certification. All such filings shall be a part of the rulemaking record. The Commission may thereupon, in its discretion, permit the appeal. Commission review, if permitted, will be based on the application for review and any additional submissions, without oral argument or further briefs, unless otherwise ordered by the Commission.

(ii) Review without certification by the presiding officer. Within ten (10) days after publication of the final notice, any interested person may petition the Commission for addition, modification or deletion of a designated issue, accompanied by a filing not to exceed fifteen (15) pages. Additional submissions on the issue by other interested persons, not to exceed fifteen (15) pages may be made within twenty (20) days of the publication of the final notice. The Commission may thereupon, in its discretion, permit the appeal. Commission review, if permitted, will be based on the petition and any additional submissions, without oral argument or further briefs, unless otherwise ordered by the Commission.

A petition hereunder shall not stay the rulemaking proceeding unless the presiding officer or the Commission shall so order. All petitions filed under this subsection shall be a part of the rulemaking record. Notice of the filing of any such petition may be obtained from the Office of the Secretary of the Commission. In the event any designated issue is added or substantially modified by the Commission, interested persons shall be given a further opportunity to identify their interests with respect to those issues.

(d) Informal hearings. An informal hearing with the opportunity for oral presentations on all issues shall be conducted by the presiding officer. In addition, if an issue is designated pursuant to these rules for consideration in accordance with §1.13(d) (5) and (6), the informal hearing on such issues shall be conducted in accordance with those subsections. For all other issues the presiding officer may in his discretion employ, in whole or in part, the procedures of those subsections.

(1) Nature of issues for consideration in accordance with § 1.13 (d)(5) and (d)(6)-(i) Issues that must be considered in accordance with § 1.13(d)(5) and (d)(6). The only issues that must be designated for consideration in accordance with paragraphs (d)(5) and (d)(6) of this section are disputed issues of fact, that are determined by the Commission or the presiding officer to be material and necessary to resolve.

(ii) Issues that may be considered in accordance with 81.13(d)(5) and (d)((6). The Commission and the presiding officer retain the power to designate any other issues for consideration in accordance with paragraphs (d)(5) and (d)(6) of this section.

(2) Addition or Modification of issues for consideration in accordance with § 1.31(d) and (d)(6). The presiding officer may at any time on his own motion or pursuant to a written petition by interested persons, add or modify any issues designated pursuant to §1.12(a). No such petition shall be considered unless good cause is shown why any such proposed issue was not proposed pursuant to § 1.13(b).

(3) Identification of interests. Not later than twenty (20) days after publication of the final notice each interested person who desires to avail himself of the procedures of paragraphs (d)(5) and (d)(6) of this section shall notify the presiding officer in writing of his particular interest with respect to each issue designated for consideration in accordance with those subsections. In the event that new issues are designated, each interested person shall promptly notify the presiding officer of his particular interest with respect to each such issue.

(4) Examination and cross-examination by the presiding officer. The presiding officer may conduct any examination, including cross-examination, to which a person may be entitled. For that purpose he may require submission of written requests for presentation of questions to any person making oral presentations and shall determine whether to ask such questions or any other questions. All requests for presentation of questions shall be placed in the rulemaking record.

(5) Examination, cross-examination, and the presentation of rebuttal submissions by interested persons—(i) In general. The presiding officer shall conduct or allow to be conducted examination, including cross-examination of oral presentations and the presentation of rebuttal submissions relevant to the issues designated for consideration in accordance with paragraphs (d)(5) and (d)(6) of this section. Examination, including, cross-examination, and the presentation of rebuttal submissions, shall be allowed to the extent to which it is appropriate and is required for a full and true disclosure with respect to those issues. Requests for an opportunity to examine, including cross-examine, or to present rebuttal submissions, shall be accompanied by a specific justification therefor. In determining whether or not to grant such requests, the presence of the following circumstances indicate that such requests should be granted:

(A) An issue for examination including cross-examination, or the presentation of rebuttal submissions, is an issue of specific, in contrast to legislative fact.

(B) A full and true disclosure with respect to the issue can only be achieved through examination including cross-examination rather than through rebuttal submissions or the presentation of additional oral submissions.

(C) Circumstantial guarantees of the trustworthiness of a presentation do not exist.

(D) The particular presentation is required for the resolution of a designated issue.

(ii) Selection of representatives for cross-examination. After consideration of the information supplied in response to the final notice, the presiding officer shall identify groups of persons with the same or similar interests in the proceeding. Such groups may be required to select a single representative for the purpose of examination, including cross-examination. If a group is unable to select a representative then the presiding officer may select a representative of each such group.

(iii) Inability to select representative for examination, including cross-examination. No person shall be denied the opportunity to conduct or have conducted, examination, including cross-examination, under paragraph (d)(5)(i) of this section if he is a member of a group as described in paragraph (d)(5) (ii) of this section and is unable to agree upon group representation with other group members after a good faith effort to do so and seeks to present substantial and relevant issues which will not be adequately presented by the group representative. In that event he shall be allowed to conduct or have conducted any examination, including cross-examination, to which he is entitled on issues designated for consideration in accordance with paragraphs (d)(5) and (d)(6) of this section and which affect his particular interest.

(6) Requests to compel the attendance of persons or the production of documents or to obtain responses to written questions. During the course of the rulemaking proceeding the presiding officer shall entertain requests from interested persons to compel the attendance of persons or the production of documents or to obtain re

sponses to written questions on behalf of the Commissions' staff or any interested person. The presiding officer may require the payment of a fee to any person to whom such requests are directed in accordance with §4.5 of this chapter. Requests to compel the attendance of persons or the production of documents or to obtain responses to written questions shall contain a statement showing the general relevancy of the material, information or presentation, and the reasonableness of the scope of the request, together with a showing that such material, information or presentation is not available by voluntary methods and cannot be obtained through examination, including cross-examination, of oral presentations or the presentation of rebuttal submissions, and is appropriate and required for a full and true disclosure with respect to the issues designated for consideration in accordance with paragraphs (d)(5) and, (d)(6) of this section. The Commission may, on its own motion, review a determination of the presiding officer under this subsection which requires the production of confidential Commission records or the appearance of an official or employee of the Commission or another government agency.

(e) Written transcript. A verbatim transcript shall be made of the informal hearing which transcript shall be placed in the rulemaking record.

(f) Summary and findings. After the close of the informal hearing, the presiding officer shall prepare a summary of the record, both written and oral, relating to the issues designated for consideration in accordance with paragraphs (d)(5) and (d)(6) of this section and make initial factual findings and conclusions as to these issues and other findings and conclusions as he sees fit.

(g) Staff recommendations. The staff shall make recommendations to the Commission in a report based on the rulemaking record and taking into account the presiding officer's findings of fact. Such report shall contain its analysis of the record and its recommendations as to the form of the final rule.

(h) Post record comment. The findings and conclusions of the presiding

officer as well as the staff report shall be the subject of public comment for a period of sixty (60) days after the staff recommendations are placed in the rulemaking record. Such comments shall be confined to information already in the record and may include requests for review by the Commission of determinations made by the presiding offi

cer.

(i) Commission review of the rulemaking record. The Commission shall review the rulemaking record to determine what form of rule, if any, it should promulgate. During this review process, the Commission may allow persons who have previously participated in the proceeding to make oral presentations to the Commission, unless it determines with respect to that proceeding that such presentations would not significantly assist it in its deliberations. Presentation shall be confined to information already in the rulemaking record. Requets to participate in an oral presentation must be received by the Commission no later than the close of the comment period under § 1.13(h). The identity of the participants and the format of such presentations will be announced thereafter.

[40 FR 33966, Aug. 13, 1975, as amended at 42 FR 60562, Nov. 28, 1977]

§1.14 Promulgation.

(a) The Commission, after review of the rulemaking record, may issue, modify, or decline to issue any rule. Where it believe that it should have further information or additional views of interested persons, it may withhold final action pending the receipt of such additional information or views. If it determines to issue a rule, it shall adopt a Statement of Basis and Purpose to accompany the rule. If it determines not to issue a rule, it may adopt and publish an explanation for not doing so. The Statement of Basis and Purpose to accompany a rule promulgated under this subpart shall include (1) a statement as to the prevalence of the acts or practices treated by the rule, (2) a statement as to the manner and context in which such acts or practices are unfair or deceptive, (3) a statement as to the economic effect of the rule, taking into ac

count the effect on small businesses and consumers, and (4) a statement as to the effect of the rule on state and local laws.

(b) In the event the Commission determines, upon its review of the rulemaking record, to propose a revised rule for further proceedings in accordance with this subpart, such proceedings, including the opportunity of interested persons to avail themselves of the procedures of §1.13 (d)(5) and (d)(6), shall be limited to those portions of the revised rule, the subjects and issues of which were not substantially the subject of comment in response to a previous notice of proposed rulemaking.

(c) The final rule and Statement of Basis and Purpose shall be published in the FEDERAL REGISTER not less than thirty (30) days prior to the effective date of the rule except where the Commission for good cause found and published with the rule sets an earlier effective date.

[40 FR 33966, Aug. 13, 1975, as amended at 41 FR 47231, Oct. 28, 1976; 42 FR 60563, Nov. 28, 1977]

§ 1.15 Petition for amendment to or repeal of a rule.

(a) Petition for substantive amendment to or repeal of a rule. The procedures for petitions for substantive amendments to or repeal of a rule shall be the same as for the issuance thereof.

(b) Petition for nonsubstantive amendment of a rule. When the Commission, for good cause, finds that notice and public procedure relating to a petition for nonsubstantive amendment of a rule or such an amendment proposed by the Commission itself are impractical, unnecessary, or contrary to the public interest, it may dispense with the procedures of this subpart and publish the nonsubstantive amendment of the rule along with the above finding and a brief statement of the reasons therefor.

§ 1.16 Petition for exemption from trade regulation rule.

Any person to whom a rule would otherwise apply may petition the Commission for an exemption from such rule. The procedures for deter

mining such a petition shall be those of Subpart C of these rules.

§ 1.17 Compensation for representation in rulemaking proceedings.

(a) Purpose of compensation. The Commission may provide compensation for reasonable attorneys fees, expert witness fees and other costs of participation, including costs necessary for the preparation of oral or written presentations, to any person who has or represents an interest which would not otherwise be adequately represented in a rulemaking proceeding, and representation which is necessary for a fair determination of the rulemaking proceeding taken as a whole, and who is unable effectively to participate in such proceeding because such person cannot afford to pay costs of making oral presentations, conducting cross-examination, and making rebuttal submissions in such proceeding.

of

(b) Level of funding. At or after the time of the initial notice of proposed rulemaking, the Commission may announce a tentative total level of funding for compensation for participation in that proceeding.

(c) Applications. An application for compensation for participation in a rulemaking proceeding may be filed at any time after the publication of the initial notice of proposed rulemaking. An application for compensation shall be filed prior to the time when the costs for which compensation sought are incurred. Such application shall contain the following:

is

(1) A description of the interest the applicant has or represents in the rulemaking proceeding;

(2) A statement of the reasons representation of such interest is necessary for a fair determination of the proceeding taken as a whole;

(3) Insofar as possible, the reasons why such interest would not otherwise be adequately represented in the proceeding;

(4) A statement of the reasons the applicant is unable effectively to participate in the rulemaking proceeding without financial assistance including information relating to:

(i) The economic stake of the interest involved as compared with the costs of participation;

(ii) The feasibility of contributions to the costs of participation by individual representatives of the interest;

(iii) The resources of the applicant, or of the interest represented by the applicant;

(5) Insofar as possible, a specific statement of the expenses to be incurred for which compensation is sought, including an estimate of the total anticipated expenses; and

(6) A statement of the applicant's organizational and financial status in such form as the Commission may prescribe.

(d) Determination of applications— (1) By the presiding officer. The presiding officer shall consider applications for compensation filed under this section and forward initial findings to the Director of the Bureau of Consumer Protection as to whether the applicant meets the criteria of paragraph (a) of this section. In determining whether the representation of an interest is necessary for a fair determination of the proceeding taken as a whole, the presiding officer shall consider, among other factors, the number and complexity of the issues involved and the importance of a fair, balanced representation of all interests. In determining whether an applicant can afford to pay the costs of participation, the presiding officer shall consider, among other factors, the size of the economic stake of the interest involved as compared with the costs of participation; the resources of the applicant; and the feasibility of obtaining contributions from other parties who share the applicant's interest. In connection with his determination the presiding officer may conduct such inquiry of the applicant or require the production of such documents as he deems necessary.

(2) By the Director of the Bureau of Consumer Protection. The Director of the Bureau of Consumer Protection shall review applications and the initial findings of the presiding officer and determine, in his discretion, to what extent compensation shall be authorized under this section.

(e) Payment of compensation—(1) In general. The Commission will compensate the applicant only for those authorized expenses actually incurred. Appropriate proof of actual expenditures may be required by the Commission. The Commission may make any payments under this section in advance where necessary to permit effective participation in the rulemaking proceeding. Payment will be conditioned upon the execution by the applicant of an appropriate agreement setting forth the terms and conditions of the compensation.

(2) Attorneys' fees; expert witness fees. Attorneys' fees at a rate in excess of $50 per hour will be considered presumptively unreasonable and compensation will not be provided for such excess in the absence of special justification. Experts and consultants will be compensated at a rate not to exceed the highest rate at which experts and consultants to the Commission are compensated.

§ 1.18 Public availability of rulemaking record.

(a) Definition. For the purposes of these rules the term "rulemaking record" includes the rule, its Statement of Basis and Purpose, the verbatim transcript of the informal hearing, written submissions, the summary and findings of the presiding officer and the staff recommendations as well as any public comment thereon, verbatim transcripts of oral presentations to the Commission, if any, and any other information which the Commission considers relevant to the rule.

(b) Public availability. The rulemaking record shall be publicly available except when the presiding officer, for good cause shown, determines that it is in the public interest to allow any submission to be received in camera subject to the provisions of § 4.11 of this chapter.

(c) Communication to Commissioners and their attorney advisors. Except as otherwise provided in this subpart of by the Commission, after commencement of a trade regulation rule proceeding, no person not employed by the Commission shall communicate, orally or in writing, with any Commissioner or any member of a