---
kind: "range"
citation: "16 C.F.R. §§ 1502.11–1502.18"
title: "16"
from: "1502.11"
to: "1502.18"
count: 8
url: "https://uscodex.org/cfr/16/1502.11..1502.18"
---

# §1502.11. Judicial review after waiver of hearing on a regulation.

- (a) A person with a right to submit objections and a request for hearing under [§ 1502.5(a)](/cfr/16/1502.5.md?p=a) may submit objections and waive the right to a hearing. The waiver may be either an explicit statement, or a failure to request a hearing, as provided in [§ 1502.6(a)(4)](/cfr/16/1502.6.md?p=a-4).
- (b) If a person waives the right to a hearing, the Commission will rule upon the person's objections under [§§ 1502.8 through 1502.10](/cfr/16/1502.8..1502.10.md). As a matter of discretion, the Commission may also order a hearing on the matter.
- (c) If the Commission rules adversely on a person's objection, the person may petition for judicial review in a U.S. court of appeals under the appropriate statute.
  - (1) The record for judicial review is the record designated in [§ 1502.10(e)](/cfr/16/1502.10.md?p=e).
  - (2) The time for filing a petition for judicial review begins on the date of publication of the Commission's ruling on the objections in the Federal Register.

# §1502.12. Request for alternative form of hearing.

- (a) A person with a right to request a formal hearing may waive that right and request a hearing before the Commission under [16 CFR part 1052](/cfr/16/part1052.md).
- (b) **The request—**
  - (1) May be on the person's own initiative or at the suggestion of the Commission;
  - (2) Must be submitted by the person in the form of a petition before publication of a notice of hearing under [§ 1502.13](/cfr/16/1502.13.md) or a denial of hearing under [§ 1502.10](/cfr/16/1502.10.md); and
  - (3) **Must be—**
    - (i) In lieu of a request for a formal hearing under [§ 1502.5](/cfr/16/1502.5.md); or,
    - (ii) If submitted with or after a request for formal hearing, accompanied by a waiver of the right to a formal hearing, conditioned on the request for the alternative form of hearing. Upon acceptance by the Commission, the waiver becomes binding and may be withdrawn only by waiving any right to any form of hearing, unless the Commission determines otherwise.
- (c) When more than one person requests and justifies a formal hearing under these procedures, an alternative form of hearing may be used only if all the persons concur and waive their right to request a formal hearing.
- (d) The Commission will determine whether an alternative form of hearing should be used after considering the requests submitted and the appropriateness of the alternative hearing for the issues raised in the objections. The Commission's determination is binding unless, for good cause, the Commission subsequently determines otherwise.
- (e) If the Commission determines that an alternative form of hearing will be used, the Commission will publish a notice in the Federal Register setting forth the following information:
  - (1) **A description of the regulation that is the subject of the hearing.**
  - (2) A statement specifying any part of the regulation that has been stayed by operation of law or in the Commission's discretion.
  - (3) The time, date, and place of the hearing, or a statement that such information will be contained in a later notice.
  - (4) **The parties to the hearing.**
  - (5) **The issues at the hearing.** The statement of issues determines the scope of the hearing.

# §1502.13. Notice of hearing; stay of action.

- (a) If the Commission determines upon review of the objections and requests for hearing that a hearing is justified on any issue, the Commission will publish a notice setting forth the following:
  - (1) **A description of the regulation that is the subject of the hearing.**
  - (2) A statement specifying any part of the regulation or order that has been stayed by operation of law or in the Commission's discretion.
  - (3) **The parties to the hearing.**
  - (4) **The issues of fact on which a hearing has been justified.**
  - (5) A statement of any objections or requests for hearing for which a hearing has not been justified, which are subject to [§ 1502.10](/cfr/16/1502.10.md).
  - (6) The presiding officer, or a statement that the presiding officer will be designated in a later notice.
  - (7) The time within which notices of participation should be filed under [§ 1502.16](/cfr/16/1502.16.md).
  - (8) The date, time, and place of the prehearing conference, or a statement that the date, time, and place will be announced in a later notice. The prehearing conference may not commence until after the time expires for filing the notice of participation required by [§ 1502.16(a)](/cfr/16/1502.16.md?p=a).
  - (9) The time within which participants should submit written information and views under [§ 1502.25(b)](/cfr/16/1502.25.md?p=b). Additional copies of material already submitted under [§ 1502.25](/cfr/16/1502.25.md) need not be included with any later submissions.
  - (10) **The contents of the portions of the administrative record relevant to the issues at the hearing.** Except for trade secrets or other confidential information, the disclosure of which is prohibited by statute, the portions listed will be placed on public display in the Office of the Secretary before the notice is published.
- (b) The statement of the issues determines the scope of the hearing and the matters on which evidence may be introduced. The issues may be revised by the presiding officer. A participant may obtain interlocutory review by the Commission of a decision by the presiding officer to revise the issues to include an issue on which the Commission has not granted a hearing or to eliminate an issue on which a hearing has been granted.
- (c) **A hearing is deemed to begin on the date of publication of the notice of hearing.**

# §1502.14. Effective date of a regulation when no objections are filed.

- (a) If no objections are filed and no hearing is requested on a regulation under [§ 1502.5](/cfr/16/1502.5.md), the regulation is effective on the date specified in the regulation as promulgated.
- (b) The Commission shall publish a confirmation of the effective date of the regulation. The Federal Register document confirming the effective date of the regulation may extend the time for compliance with the regulation.

# §1502.15. Appearance.

- (a) A person who has filed a notice of participation under [§ 1502.16](/cfr/16/1502.16.md) may appear in person or by counsel or other representative in any hearing and, subject to [§ 1502.27](/cfr/16/1502.27.md), may be heard concerning all relevant issues.
- (b) The presiding officer may strike a person's appearance for violation of the requirements regarding conduct in [§ 1502.28](/cfr/16/1502.28.md).

# §1502.16. Notice of participation.

- (a) Within 30 days after publication of the notice of hearing under [§ 1502.13](/cfr/16/1502.13.md), a person desiring to participate in a hearing is to file with the Office of the Secretary a notice of participation in the following form:
- (b) Any amendment to a notice of participation should be filed with the Office of the Secretary and served on all participants.
- (c) No person may participate in a hearing who has not filed a written notice of participation or whose participation has been stricken under [paragraph (e)](#e) of this section.
- (d) The presiding officer may permit the late filing of a notice of participation upon a showing of good cause.
- (e) The presiding officer may strike the participation of a person for nonparticipation in the hearing or for failure to comply with any requirement of this subpart, e.g., disclosure of information as required by [§ 1502.25](/cfr/16/1502.25.md) or the prehearing order issued under [§ 1502.30](/cfr/16/1502.30.md). Any person whose participation is stricken may petition the Commission for interlocutory review of that decision.

# §1502.17. Advice on public participation in hearings.

- (a) All inquiries from the public about scheduling, location, and general procedures should be addressed to the Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207, or telephone (301) 504-0800.
- (b) Requests by hearing participants for changes in the schedule of a hearing or for filing documents, briefs, or other pleadings should be made in writing directly to the presiding officer.
- (c) Under no circumstances will the Office of the General Counsel of CPSC directly provide advice about a hearing to any person who is participating or may participate in the hearing. In every hearing, certain attorneys in the office are designated to represent the staff. Other members of the office, ordinarily including the General Counsel, are designated to advise the Commission on a final decision in the matter. It is not compatible with these functions, nor would it be professionally responsible, for the attorneys in the Office of the General Counsel also to advise other participants in a hearing, or for any attorney who may be called on to advise the Commission to respond to inquiries from other participants in the hearing; such participants may be urging views contrary to those of the staff involved or to what may ultimately be the final conclusions of the Commission. Accordingly, members of the Office of the General Counsel, other than the attorneys responsible for representing the staff, will not answer questions about the hearing from any participant or potential participant.
- (d) Participants in a hearing may communicate with the attorneys responsible for representing the staff, in the same way that they may communicate with counsel for any other party in interest about the presentation of matters at the hearing. It would be inappropriate to bar discussion of such matters as stipulations of fact, joint presentation of witnesses, or possible settlement of hearing issues. Members of the public, including participants at hearings, are advised, however, that all such communications, including those by telephone, will be recorded in memoranda that can be filed with the Office of the Secretary.
- (e) Separation of functions and ex parte communications will be handled as follows.
  - (1) An interested person may meet or correspond with any CPSC representative concerning a matter prior to publication of a notice announcing a formal evidentiary public hearing on the matter. The provisions of [16 CFR part 1012](/cfr/16/part1012.md) apply to such meetings.
  - (2) Upon publication of a notice announcing a formal evidentiary public hearing, the following rules concerning separation of functions apply:
    - (i) The CPSC staff members responsible for preparing evidence and participating in the hearing in the matter are, as a party to the hearing, responsible for all investigative functions and for presentation of the position of the staff at the hearing and in any pleading or oral argument before the Commission. These representatives of the staff may not participate or advise in any decision except as witnesses or counsel in public proceedings. Except as provided herein, there shall be no other communication between representatives of the staff and representatives of the various Commissioners' offices concerning the matter prior to the decision of the Commission. The Commission may, however, designate other representatives of the staff to advise the Commission. The designation will be in writing and filed with the Office of the Secretary no later than the time specified in paragraph (f)(2) of this section for the application of separation of functions. All employees of the CPSC other than representatives of the involved staff (except for those specifically designated otherwise) may be called upon to advise and participate with the offices of the Commissioners in their functions relating to the hearing and the final decision.
    - (ii) The General Counsel of CPSC shall designate members of the Office of the General Counsel to advise and participate with the staff in its functions in the hearing and shall designate other members of the Office of the General Counsel to advise the offices of the Commissioners in their functions related to the hearing and the final decision. The members of the Office of the General Counsel designated to advise the staff may not participate or advise in any decision of the Commission except as counsel in public proceedings. The designation shall be in the form of a memorandum filed with the Office of the Secretary and made a part of the administrative record in the proceeding. There may be no other communication between those members of the Office of the General Counsel designated to advise the offices of the Commissioners and any other person in the Office of the General Counsel or in the involved staff with respect to the matter prior to the decision of the Commission. The General Counsel may assign different attorneys to advise either the staff or the offices of the Commissioners at any stage of the proceedings. The General Counsel will ordinarily advise and participate with the offices of the Commissioners in their functions relating to the hearing and the final decision.
    - (iii) The Commissioners are responsible for the agency review and final decision of the matter, with the advice and participation of anyone in CPSC other than representatives of the responsible staff and those members of the Office of the General Counsel designated to assist in the staff functions in the hearing.
    - (iv) Between the date that separation of functions applies and the date of the Commission's decision on the matter, communication concerning the matter involved in the hearing will be restricted as follows:
      - (A) No person outside CPSC may have an ex parte communication with the presiding officer or any person representing the offices of the Commissioners concerning the matter in the hearing. Neither the presiding officer nor any person representing the offices of the Commissioners may have any ex parte communications with a person outside CPSC concerning the matter in the hearing. All communications are to be public communications, as witness or counsel under the applicable procedures.
      - (B) A participant in the hearing may submit a written communication concerning a proposal for settlement to the presiding officer with a request that it be transmitted to the Commission. These communications are to be in the form of pleadings, served on all other participants, and filed with the Office of the Secretary like any other pleading.
      - (C) A written communication contrary to this section must be immediately served on all other participants and filed with the Office of the Secretary by the presiding officer at the hearing, or by the Commissioner, depending on who received the communication. An oral communication contrary to this section must be immediately recorded in a written memorandum and similarly served on all other participants and filed with the Office of the Secretary. A person, including a representative of a participant in the hearing, who is involved in an oral communication contrary to this section, must, if possible, be made available for cross-examination during the hearing with respect to the substance of that conversation. Rebuttal testimony pertinent to a written or oral communication contrary to this section will be permitted. Cross-examination and rebuttal testimony will be transcribed and filed with the Office of the Secretary.
      - (D) The making of a communication contrary to this section may, consistent with the interests of justice and the policy of the underlying statute, result in a decision adverse to the person knowingly making or causing the making of such a communication.

# §1502.18. Presiding officer.


The presiding officer in a hearing will be an administrative law judge qualified under [5 U.S.C. 3105](/usc/5/3105.md).