Informal hearing procedure
The Commission shall conduct any informal hearings required by subsection (b)(1)(C) of this section in accordance with the following procedure:
The Commission shall provide for the conduct of proceedings under this subsection by hearing officers who shall perform their functions in accordance with the requirements of this subsection.
The officer who presides over the rulemaking proceedings shall be responsible to a chief presiding officer who shall not be responsible to any other officer or employee of the Commission. The officer who presides over the rulemaking proceeding shall make a recommended decision based upon the findings and conclusions of such officer as to all relevant and material evidence, except that such recommended decision may be made by another officer if the officer who presided over the proceeding is no longer available to the Commission.
Except as required for the disposition of ex parte matters as authorized by law, no presiding officer shall consult any person or party with respect to any fact in issue unless such officer gives notice and opportunity for all parties to participate.
Subject to paragraph (3) of this subsection, an interested person is entitled—
to present his position orally or by documentary submission (or both), and
if the Commission determines that there are disputed issues of material fact it is necessary to resolve, to present such rebuttal submissions and to conduct (or have conducted under paragraph (3)(B)) such cross-examination of persons as the Commission determines (i) to be appropriate, and (ii) to be required for a full and true disclosure with respect to such issues.
The Commission may prescribe such rules and make such rulings concerning proceedings in such hearings as may tend to avoid unnecessary costs or delay. Such rules or rulings may include (A) imposition of reasonable time limits on each interested person’s oral presentations, and (B) requirements that any cross-examination to which a person may be entitled under paragraph (2) be conducted by the Commission on behalf of that person in such manner as the Commission determines (i) to be appropriate, and (ii) to be required for a full and true disclosure with respect to disputed issues of material fact.
Except as provided in subparagraph (B), if a group of persons each of whom under paragraphs (2) and (3) would be entitled to conduct (or have conducted) cross-examination and who are determined by the Commission to have the same or similar interests in the proceeding cannot agree upon a single representative of such interests for purposes of cross-examination, the Commission may make rules and rulings (i) limiting the representation of such interest, for such purposes, and (ii) governing the manner in which such cross-examination shall be limited.
When any person who is a member of a group with respect to which the Commission has made a determination under subparagraph (A) is unable to agree upon group representation with the other members of the group, then such person shall not be denied under the authority of subparagraph (A) the opportunity to conduct (or have conducted) cross-examination as to issues affecting his particular interests if (i) he satisfies the Commission that he has made a reasonable and good faith effort to reach agreement upon group representation with the other members of the group and (ii) the Commission determines that there are substantial and relevant issues which are not adequately presented by the group representative.
A verbatim transcript shall be taken of any oral presentation, and cross-examination, in an informal hearing to which this subsection applies. Such transcript shall be available to the public.
Meetings with outside parties
For purposes of this subsection, the term “outside party” means any person other than (A) a Commissioner; (B) an officer or employee of the Commission; or (C) any person who has entered into a contract or any other agreement or arrangement with the Commission to provide any goods or services (including consulting services) to the Commission.
Not later than 60 days after May 28, 1980, the Commission shall publish a proposed rule, and not later than 180 days after May 28, 1980, the Commission shall promulgate a final rule, which shall authorize the Commission or any Commissioner to meet with any outside party concerning any rulemaking proceeding of the Commission. Such rule shall provide that—
notice of any such meeting shall be included in any weekly calendar prepared by the Commission; and
a verbatim record or a summary of any such meeting, or of any communication relating to any such meeting, shall be kept, made available to the public, and included in the rulemaking record.
Communications by investigative personnel with staff of Commission concerning matters outside rulemaking record prohibited
Not later than 60 days after May 28, 1980, the Commission shall publish a proposed rule, and not later than 180 days after May 28, 1980, the Commission shall promulgate a final rule, which shall prohibit any officer, employee, or agent of the Commission with any investigative responsibility or other responsibility relating to any rulemaking proceeding within any operating bureau of the Commission, from communicating or causing to be communicated to any Commissioner or to the personal staff of any Commissioner any fact which is relevant to the merits of such proceeding and which is not on the rulemaking record of such proceeding, unless such communication is made available to the public and is included in the rulemaking record. The provisions of this subsection shall not apply to any communication to the extent such communication is required for the disposition of ex parte matters as authorized by law.
[Sept. 26, 1914, ch. 311, § 18], as added [Pub. L. 93–637, title II, § 202(a)], Jan. 4, 1975, [88 Stat. 2193]; amended [Pub. L. 96–37, § 1(c)], July 23, 1979, [93 Stat. 95]; [Pub. L. 96–221, title VI, § 610(b)], Mar. 31, 1980, [94 Stat. 174]; [Pub. L. 96–252], §§ 7–11(a), 12, May 28, 1980, [94 Stat. 376–379]; [Pub. L. 100–86, title VII, § 715(c)], Aug. 10, 1987, [101 Stat. 655]; [Pub. L. 101–73, title VII, § 744(t)], Aug. 9, 1989, [103 Stat. 441]; [Pub. L. 102–242, title II, § 212(g)(2)], Dec. 19, 1991, [105 Stat. 2302]; [Pub. L. 102–550, title XVI, § 1604(a)(9)], Oct. 28, 1992, [106 Stat. 4082]; [Pub. L. 103–312], §§ 3, 5, Aug. 26, 1994, [108 Stat. 1691], 1692; [Pub. L. 103–437, § 5(a)], Nov. 2, 1994, [108 Stat. 4582]; [Pub. L. 109–351, title VII, § 725(g)], Oct. 13, 2006, [120 Stat. 2002]; [Pub. L. 109–356, title I, § 123(g)], Oct. 16, 2006, [120 Stat. 2029]; [Pub. L. 111–203, title X, § 1092], July 21, 2010, [124 Stat. 2094].)