89 Stat. 901 (15 U.S.C. 20002); delegation of authority at 41 FR 25015, June 22, 1976. SOURCE: 45 FR 81578, Dec. 11, 1980, unless otherwise noted.

Subpart A-Scope of Rules; Nature of Adjudicative Proceedings, Definitions

§ 511.1 Scope of the rules.

This part establishes rules of practice and procedure for adjudicative proceedings conducted pursuant to section 508(a)(2) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. Pub. L. 94-163, 89 Stat. 911, sec. 2008(a)(2)), which are required by statute to be determined on the record after opportunity for a public hearing.

§ 511.2 Nature of adjudicative proceedings.

Adjudicative proceedings shall be conducted in accordance with title 5, U.S.C., sections 551 through 559 and this part. It is the policy of the agency that adjudicative proceedings shall be conducted expeditiously and with due regard to the rights and interests of all persons affected, and to the public interest. Therefore, the presiding officer and all parties shall make every effort at each stage of a proceeding to avoid unnecessary delay.

(a) As used in this part:

(1) The term "application" means an ex parte request by a party for an order that may be granted or denied without opportunity for response by any other part.

(2) The term "NHTSA" means the National Highway Traffic Safety Administration.

(3) The term "Administrator" means the Administrator of the National Highway Traffic Safety Administration.

(4) The term "Complaint Counsel" means prosecuting counsel for the NHTSA.

(5) The term "motion" means a request by a party for a ruling or order that may be granted or denied only after opportunity for response by each affected party.

(6) The term "party" means the NHTSA, and any person named as a

respondent in a proceeding governed by this part.

(7) The term "person" means any individual, partnership, corporation, association, public or private organization, or Federal, State or municipal governmental entity.

(8) The term "petition" means a written request, made by a person or a party and addressed to the Presiding Officer or the Administrator, that the addressee take some action.

(9) The term "Presiding Officer" means the person who conducts an adjudicative hearing under this part, who shall be an administrative law judge qualified under title 5, U.S.C., section 3105 and assigned by the Director, Office of Administrative Law Judges, Office of Personnel Management.

(10) The term "Respondent" means any person against whom a complaint has been issued.

(11) The term "Executive Secretary" means the Executive Secretary of the National Highway Traffic Safety Administration.

(12) The term "staff" means the staff of the National Highway Traffic Safety Administration.

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

§ 511.11 Commencement of proceedings. (a) Notice of institution of an enforcement proceeding. An adjudicative proceeding under this part is commenced by the issuance of a complaint by the NHTSA.

(b) Form and content of complaint. The complaint shall be signed by the Complaint Counsel and shall contain the following:

(1) Recital of the legal authority for instituting the proceeding, with specific designation of the statutory provisions involved in each allegation.

(2) Identification of each respondent.

(3) A clear and concise statement of the charges, sufficient to inform each respondent with reasonable definiteness of the factural basis of the allegations of violation. A list and summary of documentary evidence supporting the charges shall be attached.

80-175 0-82--4

(4) A statement of the civil penalty which the Complaint Counsel believes is in the public interest, or which is required by law. In the case of civil penalties assessed for violations of section 507(3) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 2007(3)), the amount of such penalty shall be calculated from the time of the alleged violation. In the case of civil penalties assessed for violations of section 507 (1) or (2) of that Act, any monetary credits available to offset those civil penalties shall be specified.

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

(c) Notice to the Public. Once a complaint is issued, notice of it shall be immediately submitted to the FEDERAL REGISTER for publication. The notice in the FEDERAL REGISTER shall briefly describe the nature of the proceeding and state that petitions to participate in the proceeding must be filed no later than the first prehearing confer

ence.

§ 511.12 Answer.

(a) Time for filing. A respondent shall have twenty (20) days after service of a complaint within which to file

an answer.

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

(1) Request for hearing. Respondent shall state whether it requests a full, adjudicatory hearing or whether it desires to proceed on the basis of written submissions. If a hearing is requested, respondent shall specify those issues on which a hearing is desired.

(2) Contested allegations. An answer in which the allegations of a complaint are contested shall contain:

(i) Specific admission or denial of each allegation in the complaint. If the respondent is without knowledge or information sufficient to form a belief as to the truth of an allegation, respondent shall so state. Such a statement shall have the effect of a denial. Denials shall fairly meet the substance of the allegations denied. Allegations not thus answered shall be deemed to have been admitted.

(ii) A concise statement of the factual and/or legal defenses to each allegation of the complaint.

(3) Admitted allegations. If the respondent admits or fails to deny any factual allegation, he or she shall be deemed to have waived a hearing as to such allegation.

(c) Default. Failure of the respondent to file an answer within the time provided (or within an extended time, if provided), shall be deemed to constitute a waiver of the right to appear and contest the allegations set forth in the complaint and to authorize the Presiding Officer to make such findings of fact, as are reasonable under the circumstances.

§ 511.13 Amendments and supplemental pleadings.

Whenever determination of a controversy on the merits will be facilitated thereby, the Presiding Officer upon motion, may allow appropriate amendments and supplemental pleadings which do not unduly broaden the issues in the proceeding or cause undue delay.

§ 511.14 Form and filing of documents.

(a) Filing. Except as otherwise provided, all documents submitted to the Administrator or a Presiding Officer shall be addressed to and filed with the Executive Secretary. Documents may be filed in person or by mail and shall be deemed filed on the day of filing or mailing.

(b) Caption. Every document shall contain a caption setting forth the name of the action in connection with which 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 by printing or any other process, provided that all copies filed are clear and legible.

(d) Signature. (1) The original of each document filed shall be signed by a representative of record for the party; or in the case of parties not represented, by the party; or by a partner, officer, or regular employee of any corporation, partnership, or association, who files an appearance on behalf of the party.

(2) The act of signing a document constitutes a representation by the

signer that the signer has read it; that to the best of the signer's knowledge, information and belief, the statements made in it are true; and that it is not filed for purposes of delay.

§ 511.15 Time.

(a) Computation. In computing any period of time prescribed or allowed by the rules in this part, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this part, "legal holiday" includes New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States.

(b) Additional Time After Service by Mail. Whenever a party is required or permitted to do an act within a prescribed period after service of a document and the document is served by mail, three (3) days shall be added to the prescribed period.

(c) Extensions. For good cause shown, the Presiding Officer may extend any time limit prescribed or allowed under this part or by order of the Administrator or the Presiding Officer, except those governing the filing of interlocutory appeals and appeals from Initial Decisions and those expressly requiring the Administrator's action. Except as otherwise provided by law, the Administrator, for good cause shown, may extend any time limit prescribed under this part, or by order of the Administrator or the Presiding Officer. A party or participant may petition the Presiding Officer or the Administrator, as appropriate, for an extension under this paragraph. Such a petition shall be filed prior to

the occurrence of the time limit which is the subject of the petition.

§ 511.16 Service.

(a) Mandatory service. Every document filed with the Executive Secretary shall be served upon all parties and participants to a proceeding, i.e., Complaint Counsel, respondent(s), and participants, and upon the Presiding Officer.

(b) Service of complaint, ruling, order, decision, or subpena. Service of a complaint, ruling, order, decision, or subpena may be effected as follows:

(1) By registered or certified mail. A copy of the document shall be addressed to the person, partnership, corporation or unincorporated association to be served at his or its residence or principal office or place of business; registered or certified; and mailed; or

(2) By delivery to an individual. A copy of the document may be delivered to the person to be served; or to a member of the partnership to be served; or to the president, secretary, or other executive officer, or a director of the corporation or unincorporated association to be served; or to an agent authorized by appointment or by law to receive service; or

(3) By delivery to an address. A copy of the document may be left at the principal office or place of business of the person, partnership, corporation, unincorporated association, or authorized agent with an officer, a managing or general agent; or it may be left with a person of suitable age and discretion residing therein, at the residence of the person or of a member of the partnership or of an executive officer, director, or agent of the corporation or unincorporated association to be

served.

(c) Service of documents with prescribed response periods. When service of a document starts the running of a prescribed period of time for the submission of a responsive document or the occurrence of an event, the document shall be served as provided in paragraph (b) of this section.

(d) Service of other documents. All documents other than those specified in paragraph (c) of this section may be

served as provided in paragraph (b) of this section, or by ordinary first-class mail, properly addressed, postage prepaid.

(e) Service on a representative. When a party has appeared by an attorney or other representative, service upon that attorney or other representative shall constitute service on the party.

(f) Certificate of service. The original of every document filed with the agency and required to be served upon all parties to a proceeding shall be accompanied by a certificate of service signed by the party making service, stating that such service has been made upon each party to the proceeding. Certificates of service may be in substantially the following form:

I hereby certify that I have this day served the foregoing document upon all parties of record in this proceeding by mailing, postage prepaid (or by delivering in person) a copy to each such party. Dated at

of

(Signature)

For

this

19

day

(g) Date of Service. The date of service of a document shall be the date on which the document is deposited in the United States mail or is delivered in person.

§ 511.17 Public participation.

Participant Status. Any person interested in a proceeding commenced pursuant to § 511.11 who desires to participate in the proceeding, shall file with the Executive Secretary a notice of intention to participate in the proceeding and shall serve a copy of such notice on each party to the proceeding. A notice of intention to participate shall be filed not later than the commencement of the hearing. Untimely filings will not be accepted absent a determination by the Presiding Officer that the person making the request has made a substantial showing of good cause for failure to file on time. Any person who files a notice to participate in the proceeding as a nonparty shall be known as a "participant" and shall have the rights specified in § 511.41(d).

§ 511.18 Joinder of proceedings.

Two or more matters which have been scheduled for adjudicative proceedings, and which involve one or more common questions of law or fact, may be consolidated for the purpose of hearing, appeal or the Administrator's review. A motion for consolidation for the purpose of hearing may be filed with the Presiding Officer by any party to such proceedings not later than thirty (30) days prior to the hearing. A motion for consolidation for the purpose of appeal may be filed by any party to such proceedings within 10 days after issuance of the Initial Decision. A motion to consolidate shall be served upon all parties to all proceedings whose joinder is contemplated. The proceedings may be consolidated where to do so would tend to avoid unnecessary costs or delay. Such consolidation may also be ordered upon the initiative of the Presiding Officer or the Administrator, as appropriate. The Presiding Officer may order separate hearings on any issue where to do so would promote economy or convenience or would avoid prejudice to a party.

Subpart C-Prehearing Procedures; Motions; Interlocutory Appeals; Summary Judgment; Settlement

§ 511.21 Prehearing conferences.

(a) When held. (1) A prehearing conference shall be held in person or by conference telephone call, except in unusual circumstances, approximately fifty (50) days after publication in the FEDERAL REGISTER of the complaint, upon ten (10) days notice to all parties and participants, to consider any or all the following:

(i) Motions for consolidation of proceedings;

(ii) Identification, simplification and clarification of the issues;

(iii) Necessity or desirability of amending the pleadings;

(iv) Stipulations and admissions of fact and of the content and authenticity of documents;

(v) Oppositions to notices of oral examination;

(vi) Motions for protective orders to limit or modify discovery;