Ex Parte Report and Order and Further Notice of Proposed Rulemaking FRN

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EPA-APPROVED REGULATIONS IN THE DELAWARE SIP—Continued
State regulation
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Section 2.0 .........................................
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BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 0 and 1
[GC Docket No. 10–43; FCC 11–11]

Commission’s Ex Parte Rules and
Other Procedural Rules
Federal Communications
Commission.
ACTION: Final rule.
In this document the
Commission revises certain ex parte and
organizational rules. This document
amends and reforms the Commission’s
rules on ex parte presentations made in
the course of Commission rulemakings
and other permit-but-disclose
proceedings. It also adopts a new rule
requiring all oral ex parte
communications to be documented, and
their contents described. This reform
should enable those participating in our
proceedings as well as those observing
them to better identify and understand
the issues being debated before the
Commission. New electronic filing rules
will empower anyone using the Internet
to access this information, and stronger
enforcement provisions will bolster
these new requirements. Given the
complexity of the issues we must decide
and the far-reaching impact our
decisions often have, we believe these
initiatives to increase transparency
serve the best interests of the
Commission, the entities we regulate,
and the public we serve.
DATES: Effective June 1, 2011, except for
the amendments to §§ 1.1206(b) and
1.1208, which contain information
collection requirements that are not
effective until approved by the Office of
Management and Budget. The FCC will
publish a document in the Federal
Register announcing the effective date
for those rules.
ADDRESSES: Federal Communications
Commission, 445 12th Street, SW.,

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SUMMARY:

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Joel
Kaufman, Chief, Administrative Law
Division, Office of General Counsel,
202–418–1758 or [email protected].
For additional information concerning
the Paperwork Reduction Act
information collection requirements
contained in this document, contact
Leslie F. Smith, (202) 418–0217, or send
an e-mail to [email protected].

In this
Report and Order adopted on February
1, 2011, and released on February 2,
2011, the Commission amends certain
ex parte rules and other procedural
rules, 47 CFR parts 1 and 0. Part 1
outlines a number of rules regarding
‘‘presentations’’ by outside parties to the
Commission. Section 1.1202(a) of the
Commission’s rules defines a
‘‘presentation’’ as a communication
directed to the merits or outcome of a
proceeding. 47 CFR 1.1202(a). An oral
presentation is ex parte when it is made
without advance notice to other parties
to a proceeding and without the
opportunity for them to be present. See
47 CFR 1.1202(b). For purposes of the ex
parte rules, Commission proceedings
are divided into three categories: those
in which there is no restriction on ex
parte presentations (‘‘exempt’’
proceedings); those in which ex parte
presentations are prohibited
(‘‘restricted’’ proceedings); and those in
which ex parte presentations are
permitted subject to disclosure (‘‘permitbut-disclose’’ proceedings). See 47 CFR
1.1204, 1.1206, 1.1208. The various
categories of ‘‘permit-but-disclose’’
proceedings are enumerated in sections
1.1206(a)(1) through (14) of the rules,
and include informal rulemaking and
declaratory ruling proceedings.
SUPPLEMENTARY INFORMATION:

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FOR FURTHER INFORMATION CONTACT:

AGENCY:

16:25 Apr 29, 2011

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Washington, DC 20554. In addition to
filing comments with the Office of the
Secretary, a copy of any comments on
the Paperwork Reduction Act
information collection requirements
contained herein should be submitted to
Leslie F. Smith, Federal
Communications Commission, Room 1–
C216, 445 12th Street, SW, Washington,
DC 20554, or send an e-mail to
[email protected].

[FR Doc. 2011–10428 Filed 4–29–11; 8:45 am]

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Control of NOX Emissions from Industrial Boilers and
Process Heaters at Petroleum Refineries.

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6/4/10
75 FR 31711

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Additional
explanation

New regulation.
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On March 25, 2010, the Commission
released a notice of proposed
rulemaking seeking comment on a
number of proposed changes to the
Commission’s ex parte rules. See
Amendment of the Commission’s Ex
Parte Rules and Other Procedural Rules,
25 FCC Rcd 2403 (2010) (NPRM). By
this Report and Order, we adopt final
rules effecting a number of proposals
described in the Notice. By a Further
Notice of Proposed Rulemaking,
published elsewhere in the Federal
Register, we seek comment on the
adoption of real party-in-interest
disclosure rules. The following
paragraphs describe the final rules
adopted by the Commission.
Filing and Content Requirements
1. Ex Parte Presentations for Which Ex
Parte Notices Must Be Filed
Section 1.1206(b)(2) of our rules
requires that a notice of an oral ex parte
presentation must be filed only if new
data or arguments not already reflected
in the party’s written comments,
memoranda or other filings in that
proceeding are discussed. 47 CFR
1.1206(b)(2). In the NPRM, we suggested
that this reduces the adequacy of the
record on which Commission decisions
are based and deprives parties and the
public of a fair opportunity to respond.
See 25 FCC Rcd at 2406. We therefore
proposed to require the filing of ex parte
notices for every oral ex parte
presentation, whether or not it contains
new data or arguments. To the extent
that the presentation merely reiterates
data and arguments already contained
in the written comments filed by the
presenter, the filing would either
include a summary of this information
or provide specific references, including
paragraph or page numbers, to the
presenter’s prior filings containing the
data and arguments presented.
As an initial matter, we determine
that ex parte presentations can give the
Commissioners and staff valuable new
information on the often highly complex
and technical legal, economic, and
engineering issues that we must
consider in reaching our decisions.
Prohibiting ex parte contacts outright, or

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limiting them in time and scope, could
adversely affect our ability to respond to
new issues as they arise in the course of
a proceeding. Limiting oral ex parte
presentations to material already in the
record would result in mere
redundancy, prevent the Commission
from obtaining information it needs as
efficiently as possible, and provide
inadequate assurance that an
undisclosed ex parte presentation had
not been made. We also find that
recording all oral ex parte contacts and
making them available online would be
impractical compared with posting
more complete and comprehensive
written summaries online. For these
reasons, we determine that oral ex parte
presentations on the issues raised in
permit-but-disclose proceedings should
continue to be allowed and should not
be limited by the alternatives
commenters in the proceeding
suggested.
In the Report and Order, we adopt the
proposal set forth in the NPRM and
require the filing of notices for all oral
ex parte presentations made in permitbut-disclose proceedings, regardless of
whether they involve new data or
arguments or simply reiterate what the
party has already submitted in the
written record of the proceeding.
Transparency requires that interested
parties, and the public, know that ex
parte meetings are taking place, no
matter whether old or new information
is being discussed. This proposal will
better assure procedural fairness to
parties participating in a proceeding,
especially those with limited resources.
Just as important, this rule change will
increase the public’s ability to follow
the course of Commission proceedings,
thereby facilitating the public’s ability
to express opinions on pending matters
either by submitting written comments
or by joining the informal discussion of
issues on the Commission’s new
electronic media platforms. This, in
turn, should increase public confidence
in the integrity of Commission
decisions. (We note that this proposal
will not prove burdensome insofar as
most parties already file at least a pro
forma notice after making an oral ex
parte presentation.)
2. Content of Notices
Summary or Citation Required. The
Report and Order next describes what
information ex parte notices should
contain. First, we find that it would not
impose a significant burden on any
party, or cause undue delays in filing,
to require that a party reiterating data or
arguments in its written submissions
either summarize the information
presented ex parte or include a citation

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to the pages or paragraphs of its own
prior filings where the information can
be found. Any incremental effort a party
expends in providing brief summaries
or citations to what it has itself written
is minimal, and more than outweighed
by the degree to which this requirement
will facilitate the ability of everyone
else involved—the Commission, staff,
other parties, and the public—to
understand how the issues in permitbut-disclose proceedings are being
developed and refined. We therefore
require parties making ex parte
presentations that reiterate arguments
previously made on the record to
provide either a brief summary of the
argument or a citation to either the page
or the paragraph in the written material
where the argument can be found. As
our rules currently provide, when an ex
parte presentation involves a discussion
of new information or arguments, the
notice must summarize the new
arguments and data. Summaries must be
sufficiently detailed that they would
inform a person who did not attend the
presentation of the facts that were
discussed, the arguments made, and the
support offered for those arguments.
List of Participating Parties Required.
Currently, section 1.1206(b)(2) of the
Commission’s rules does not require
that notices of ex parte presentations
include a list of everyone attending or
otherwise participating in an ex parte
meeting. Many parties already include a
list of attendees in their ex parte
notices, and we find that requiring all
parties to include such a list would not
materially increase the burden of
preparing ex parte notices. We
determine that listing the names of all
persons attending an ex parte
presentation would significantly
improve the transparency of the
Commission’s decision-making
processes, and that other parties and the
public are entitled to know who is
attending or otherwise participating in
meetings with decision-makers when an
issue is being presented ex parte. We
therefore amend our rules to incorporate
a requirement that notices of ex parte
presentations include a complete list of
every person participating in the
meeting.
We do not impose further
requirements concerning the content of
ex parte notices at this time. In
particular, we do not find it necessary
to require that parties list of all their
prior ex parte filings in a given
proceeding. The Electronic Comment
Filing System (ECFS) now makes it
simple to find which parties have made
oral ex parte presentations in a given
proceeding and how often they have
made them, rendering this proposal an

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unnecessary burden that would not
materially increase the transparency of
our proceedings.
Exemptions
1. Sunshine Exemption
Section 1.1203(a) prohibits all
presentations to decision-makers,
whether ex parte or not, during the
Sunshine period on matters listed on a
Sunshine Agenda unless an exemption
applies. (A Sunshine Agenda or
Sunshine notice is typically released
seven days before a Commission
meeting and lists the items that will be
presented to the Commission. The
period between the release of the
Sunshine Agenda and the Commission
meeting is intended to provide decisionmakers a ‘‘period of repose’’ during
which they can consider the upcoming
items free from outside interruptions.
See Amendment of Part H, Part 1 of the
Commission’s Rules and Regulations
Concerning Ex Parte Communications
and Presentations in Commission
Proceedings, 2 FCC Rcd 3011, 3020
(1987).) This prohibition currently
applies from the time a Sunshine notice
is issued until the Commission releases
a text of the decision or order relating
to the matter, issues a public notice
stating that the matter has been deleted
from the Sunshine Agenda, or issues a
public notice stating that the matter has
been returned to the staff for further
consideration. See 47 CFR 1.1203(b)(1)–
(3). This prohibition is subject to an
exemption for ex parte presentations
requested by, or made with the advance
approval of, the Commission or staff for
the clarification or adduction of
evidence, or for resolution of issues,
including possible settlement pursuant
to section 1.1204(a)(10). See 47 CFR
1.1203(a)(1), 1.1204(a)(10). (A party
making an oral ex parte communication
during the Sunshine period pursuant to
this exemption is required to file an ex
parte notice pursuant to section
1.1204(a)(10)(iv), 47 CFR
1.1204(a)(10)(iv).)
In the NPRM, we asked whether
permitting ex parte presentations under
any circumstances during the Sunshine
period is compatible with the ‘‘period of
repose’’ for internal deliberation the
Sunshine period is intended to provide
and, if so, whether the current
exemption should be narrowed. In the
event some type of exemption were
found to serve the public interest, we
also asked whether the Sunshine period
prohibition should begin at midnight
following the release of the Sunshine
notice.
In the Report and Order, we
determine that the current rules

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allowing the solicitation of ex parte
presentations during the Sunshine
period (either by the Commission or
staff or with the advance approval of the
Commission or staff) serves the public
interest. As a practical matter, important
issues can arise late in the deliberative
process, and efficient decision-making
requires that staff and Commissioners be
permitted to gather the information
needed to resolve them. As the issues
the Commission considers become more
numerous and complex, it is essential
that the Commission have the ability to
test its assumptions and conclusions,
and that the information and arguments
the Commission relies on in reaching its
decisions are clear, compelling, and
timely. Allowing the solicitation of ex
parte presentations during the Sunshine
period serves those needs, and we
therefore retain the exemption in
sections 1.1203(a)(1) and 1.1204(a)(10).
We find in the Report and Order that
fairness and transparency in these
situations are protected by the
requirement that all ex parte
presentations solicited during the
Sunshine period are subject to the same
disclosure rules that apply whenever an
ex parte presentation is made. We also
believe that fairness and the interest in
a complete and accurate record suggest
that other parties should have an
opportunity to reply to ex parte
presentations made during the Sunshine
period, just as they would if the ex parte
presentation were made at any other
time. However, in the interests of
administrative efficiency, we believe
that ex parte contacts during the
Sunshine period should be minimized
and limited to information that is
necessary to the impending decision.
Similarly, any reply filed in response to
a solicited ex parte presentation that
occurs during the Sunshine period
should be limited to the specific issues
raised in the ex parte notice, including
any new facts or data submitted. We
thus determine that the Sunshine period
will commence on the day (including
business days, weekends, and holidays)
following the release of the Sunshine
notice. This approach will afford parties
a sufficient opportunity to make
submissions before the Sunshine period
begins.
2. Status Inquiries
The NPRM also raised the issue of the
exemption provided for inquiries on the
status of permit-but-disclose
proceedings. Section 1.1202(a) and the
note to that section generally provide
that inquiries related solely to the
approximate time that action in a
proceeding may be taken, without
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outcome of the proceeding or the date
by which it should be resolved, are not
‘‘presentations,’’ and are therefore
exempt from the rules on ex parte
presentations. See 47 CFR 1.1202(a). We
requested comment on changes to this
rule. In the Report and Order, we do not
amend the rule, but we restate that if a
staff member believes that an ex parte
presentation has actually been made,
and the presenter appears to believe the
communication was only a status
inquiry, the staff member should inform
the party making the contact of the
party’s obligation to file an ex parte
notice.
3. Interagency Discussions
Section 1.1204(a)(5) exempts any
presentation ‘‘to or from an agency or
branch of the Federal Government or its
staff and involves a matter over which
that agency or branch and the
Commission share jurisdiction.’’ 47 CFR
1.1204(a)(5). Section 1.1204(a)(5) also
requires the Commission to disclose
factual information on issues of shared
jurisdiction that is obtained ex parte
from another Federal agency or agency
staff member if the Commission relies
on it in its decision-making process.
Section 1.1204(a)(6) contains a similar
provision regarding contacts between
the Commission and the Department of
Justice or Federal Trade Commission on
telecommunications competition
matters not designated for hearing. See
47 CFR 1.1204(a)(6). A note to these
paragraphs specifies that such
information will be relied on by the
Commission and disclosure made only
after advance coordination with the
agency involved. If the other agency
does not wish the information
disclosed, the Commission will not
disclose it and cannot rely on it in its
decision-making process.
Several commenters suggested that we
delete this exemption to the extent that
it permits the National
Telecommunications and Information
Administration (NTIA) to discuss with
the Commission issues concerning their
shared responsibility over spectrum
management. We do not adopt this
proposal in the Report and Order. To
require disclosure of all interagency ex
parte contacts may not only affect
another agency’s jurisdictional
responsibilities, as the Note states, but
could also adversely affect the
Commission’s ability to render timely
decisions based on the best information
possible. We therefore believe that the
current rules strike an appropriate
balance between transparency and due
process on the one hand and reasoned
decision-making and administrative
dispatch on the other.

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Method of Filing
In the NPRM, we called attention to
the fact that many ex parte notices now
are filed electronically on ECFS. This
allows Commission staff, parties, and
the general public easy and timely
access to these filings online. By
contrast, when ex parte notices are filed
in paper format, they can take several
days to appear in ECFS. This delays the
staff’s ability to analyze the contents of
the presentation and limits outside
parties’ ability to respond to it,
particularly during the Sunshine period.
We therefore proposed to require that ex
parte notices be filed electronically in
any proceeding in which electronic
filing is available. We sought comment
on whether these electronic filings
should be required in a machinereadable format, such as Microsoft Word
‘‘.doc’’ format or non-copy protected
text-searchable ‘‘.pdf’’ format for text
filing, and ‘‘native formats’’ for non-text
filings such as spreadsheets in Microsoft
‘‘.xml’’ format. We also recognized that
electronic filing could be problematic
where the party making the ex parte
presentation does not have access to a
computer or the Internet or the filing
contains confidential business or
financial information. We proposed
specific language to codify the general
requirement and exceptions, and sought
comment on these issues. See 25 FCC
Rcd at 2409–10.
1. Electronic Filing Requirement. In
the Report and Order, we adopt the
proposed rule requiring electronic
filing. Consistent with the intent of
section 1.1206(b)(2) and to assist
Commissioners and decision-making
staff, we modify section 1.1206(b)(2) to
ensure that parties filing ex parte
notices electronically also send copies
to those Commissioners and staff who
attended the meeting. We also adopt the
requirement that electronic filings be
made in a machine-readable format
where feasible. This requirement
parallels DC Circuit Court of Appeals
Rule ECF–5, which requires
electronically filed documents to be in
machine-readable and text-searchable
format. See Rule ECF–5(B), May 15
Administrative Order. We are not
persuaded that the possibility of altering
electronically filed documents is of
sufficient concern to warrant departing
from the same filing procedure that
Federal courts use. As the court rules
also provide, we will grant exceptions to
the electronic filing requirement for
parties unable to comply by reason of
hardship. A party claiming a hardship
exemption must state the basis for its
claim in the notice.

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2. Confidential Information. In
recognition of concerns expressed by
commenters about requiring the
electronic filing of confidential
information in ex parte notices, we
permit parties to remove metadata
containing confidential or privileged
information, and we will not require
parties to file electronically ex parte
notices that contain confidential
information. We will, however, require
that a redacted version be filed
electronically at the same time the paper
filing is submitted, and that the redacted
version be machine-readable whenever
technically possible.
3. Appendices and Attachments. With
particular regard to appendices and
attachments, we require that as a general
matter appendices and attachments to
an electronically filed notice should
also be filed in a machine-readable
format, and that PDF images created by
scanning a paper document may not be
submitted, except in cases where a
word-processing version of a document
is not available. This approach tracks
the rule for the U.S. Court of Appeals for
the DC Circuit. We find that any
incremental burden on the parties to
prepare and submit redacted or scanned
versions of certain material is
outweighed by the efficiency of having
these materials electronically accessible
to the Commission, to other parties, and
to the public.
At the same time, however, we are
mindful of the fact that there will be
instances in which appended material is
voluminous or otherwise not practically
filed in machine-readable format, and
we believe carefully considered
exceptions should be made in those
cases. In considering such exceptions,
we note that U.S. District Court for the
District of Columbia Local Rule LCvR
5.4(e)(1)(A)–(C) provides that
attachments exceeding 500 pages, or not
in a format that readily permits
electronic filing such as large maps,
charts, videotapes, and similar material,
or that are filed under seal, may be filed
in paper form. We will consider waivers
of the electronic filing requirement for
appendices and attachments on a caseby-case basis, and will require parties
seeking a waiver to claim it when the
filing is made.
Filing Deadlines
In light of the added filing
requirements proposed in the NPRM, we
proposed to extend the deadline for
filing notices of ex parte presentations
from one to two business days for any
presentation not made during the
Sunshine period. However, in
recognition of the need to assure
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the compressed seven-day Sunshine
period, we also proposed a filing
deadline of four hours for any ex parte
presentation made during the Sunshine
period.
In the Report and Order, we extend
the filing deadline from one to two
business days for ex parte presentations
occurring outside the Sunshine period.
We find that this extension is
reasonably calibrated to the expanded
filing requirements adopted elsewhere
in the Report and Order. In addition,
because we require the submission of
most ex parte notices electronically,
which should speed their public
availability, the added day for filing
should not materially affect the ability
of the Commission and its staff, other
parties, and the public to identify the
issues raised by various parties. In the
interests of clarity and uniformity, we
use ‘‘business day’’ to denote the entire
calendar day (i.e., from 12 a.m. until
11:59:59 p.m.) for any day other than a
weekend or holiday, and further specify
that the governing time zone will be
Eastern Time. Thus, for example, if an
ex parte presentation occurs on a
Tuesday, the ex parte notice must be
filed no later than 11:59:59 p.m. on the
following Thursday, assuming no
intervening holidays. But if an ex parte
presentation is made on the day the
Sunshine notice is released, an ex parte
notice must be submitted by the next
business day—a shorter deadline that is
necessary to afford all parties a
sufficient opportunity to present their
arguments within the compressed
timeframe of the Sunshine period.
Under these circumstances, any reply
must be filed by the next business day
following filing of the ex parte notice,
and must be submitted in writing and
limited to only the particular issues
raised in the ex parte notice. Thus, if an
ex parte presentation is made on a
Tuesday and the Sunshine notice is also
issued on that day, the ex parte notice
must be filed no later than 11:59:59 p.m.
on Wednesday, and any reply would
need to be filed by 11:59:59 p.m. on
Thursday, assuming no intervening
holidays. Copies of any reply must be
provided to each staff member or
Commissioner who received the original
presentation from the submitting party.
Neither oral replies nor oral or written
sur-replies are permitted in the absence
of an express request by a Commissioner
or staff.
When ex parte presentations are made
during the limited Sunshine period, it is
particularly important that the required
notices be filed quickly and in an
accessible electronic format. However,
we find valid the concern about the
difficulty of complying with a four-hour

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filing deadline, especially in those notinfrequent cases in which a party makes
several oral ex parte presentations in
one day. We find that imposing a fourhour deadline on filings made after a
series of meetings at different times
during the same day could result in
rushed, insufficient filings and
unintentional noncompliance with the
deadline. For this reason, we amend our
rule to provide that permissible ex parte
presentations made in permit-butdisclose proceedings during the
Sunshine period (under an exception to
the Sunshine period prohibition) must
be summarized and placed in the record
by the end of the same day (i.e., by
11:59:59 p.m.) on which the
presentation was made. This revised
deadline is more easily applied than our
four-hour proposal and should not
materially affect the interests of due
process and transparency. Consistent
with this revised rule, we will allow
parties to file written replies to ex parte
presentations during the Sunshine
period no later than the next business
day following the presentation. These
replies shall be limited to addressing the
specific issues and information in the ex
parte notice to which they are replying.
Copies of any reply must be provided to
each staff member or Commissioner
who received the original presentation
from the submitting party. Finally, as in
the case of filings for presentations
made on the day the Sunshine Notice is
issued, neither oral replies nor oral or
written sur-replies shall be permitted in
the absence of an express request by
staff.
Sanctions and Enforcement
In the NPRM, we stated our intent to
place increased emphasis on
enforcement addressing impermissible
ex parte contacts, regardless of any rule
amendments we might adopt in this
Report and Order. We asked specifically
what sanctions would be appropriate to
address the filing of insufficient ex parte
notices, and whether prejudice to other
parties should be a principal factor in
determining an appropriate sanction.
We also sought comment on whether all
sanctions for ex parte rule violations
should be publicly announced. See 25
FCC Rcd at 2415.
In the Report and Order, we affirm the
tentative conclusion in the NPRM that
stricter enforcement of our ex parte
rules complements the improvements to
the rules described elsewhere in this
summary and reinforces their purpose
in making our proceedings more open
and transparent to the public and fairer
to interested parties. We further find
that the revised enforcement program
will be best implemented by close

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coordination between the Office of
General Counsel and the Enforcement
Bureau. Accordingly, the Office of
General Counsel will retain the
authority it currently has under section
0.251(g), 47 CFR 0.251(g), to issue
rulings on whether violations of the ex
parte rules have occurred and to impose
appropriate sanctions. We do, however,
amend our rules to require that the
General Counsel refer any case in which
a forfeiture or a citation may be
warranted to the Enforcement Bureau
for disposition, and we delegate
authority to the Enforcement Bureau to
levy fines for violations of the ex parte
rules. In the event the Enforcement
Bureau ultimately determines that a
forfeiture or a citation is not warranted,
the General Counsel will take
appropriate action on the matter. The
Commission will also give public notice
via the Internet of the filing and
disposition of ex parte complaints.
We decline at this time to provide for
the harsher sanction of routine
disqualification. Although it would
certainly deter parties from violating the
rules, routinely barring parties from
further participation in Commission
proceedings diminishes their ability to
influence action from the Commission
that would serve the public interest, and
it would lessen the pool of knowledge
and information on which to base our
decisions. However, we will monitor
this new enforcement program to assure
that it is effective in deterring future
violations.

jlentini on DSKJ8SOYB1PROD with RULES

Other Issues
1. Other Agencies’ Procedures
In the NPRM, we observed that other
Federal agencies have ex parte rules and
procedures that differ from our own,
including the requirement that
Commissioners and staff summarize and
file oral ex parte communications rather
than the parties making them. See 25
FCC Rcd at 2408–09. We asked whether
any of these distinct approaches would
be instructive in considering
amendments to our own ex parte rules.
We see no clear advantage to the
suggestion by one commenter that
Commission staff prepare and file ex
parte notices. Even if the Commission is
unique in relying on outside parties to
submit such notices, other agencies may
be differently situated to the extent their
docket is primarily adjudicatory rather
than rulemaking (e.g., the Federal Trade
Commission). Also, staff summaries
raise an issue of fairness. The complex
legal and technical nature of the issues
sometimes presented ex parte make it
preferable for the parties arguing those
issues to summarize them. We also

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question what procedures would be
used in cases where the presenter
believes a staff summary is incorrect or
incomplete. Finally, the time staff
would spend in writing summaries of ex
parte presentations would take away
from the time available to analyze the
issues and assist the Commission in
reaching its decisions. For these
reasons, we focus primarily in the
Report and Order on improving our own
rules rather than on adopting the rules
of other agencies.
As we stated previously, we amend
our rules to clarify that copies of all
electronically filed ex parte notices be
sent electronically to staff and
Commissioners who participated in the
presentation. This will enhance the
ability of decision-makers to review
these notices expeditiously, detect any
outstanding errors or omissions, and
request that they be cured. Filers may be
asked to submit any corrections or
further information as necessary to
comply with the ex parte rules. Where
staff believes there are instances of
substantial or repeated violations of the
ex parte rules, staff should report such
violations to the General Counsel.
2. New Media
Although we did not propose any rule
amendments in the NPRM regarding the
treatment of comments on various
Commission new media sites, including
the Commission’s blogs, its Facebook
page, its MySpace page, its IdeaScale
pages, its Flickr page, its Twitter page,
its RSS feeds, and its YouTube page,
several commenters addressed this
issue. As a general matter, the
commenters addressing this issue
acknowledged the value of new media
as part of the Commission’s public
outreach efforts, but they expressed
reservations about the use of this
material in Commission proceedings.
In the Report and Order, we find that
these comments illustrate the
complications associated with
increasing the accessibility of
Commission decision-making via new
media in proceedings governed by the
Administrative Procedure Act. The
Commission has incorporated some of
this material into the record of some
inquiries and other proceedings, and
will continue to develop ways that will
make its inclusion in more proceedings
technically and practically possible.
However, at this time, we agree that
incorporating blog posts and other
presentations via new media into the
record of all rulemaking proceedings
would be impractical. Therefore, as
stated in the NPRM, we will continue to
associate new media contacts in the
records of specific proceedings, on the

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terms announced for those particular
proceedings. In addition, users of new
media may file comments electronically
in any permit-but-disclose proceeding
consistent with the ex parte rules by
clicking on the link to ECFSExpress on
the Commission’s homepage: http://
www.fcc.gov.
Minor and Conforming Amendments
The NPRM proposed a series of minor
changes to the ex parte rules designed
to update or clarify them. See 25 FCC
Rcd at 2416–18. For the reasons stated
in the NPRM, we adopt in the Report
and Order the following minor
amendments: (1) Section 1.1202(d)(6),
47 CFR 1.1202(d)(6), duplicates section
1.1202(d)(5) and is deleted; (2) section
1.1204(a)(6), 47 CFR 1.1204(a)(6), is
amended to change the word
‘‘telecommunications’’ to
‘‘communications’’ and to delete the
word ‘‘competition’’; (3) section
1.1204(a)(12), 47 CFR 1.1204(a)(12), is
amended to add the Pooling
Administrator and the TRS Numbering
Administrator to the list of entities with
whom communications are exempt from
the ex parte rules; (4) section 1.1206(a),
47 CFR 1.1206(a), is amended to delete
from the list of permit-but-disclose
proceedings Bell Operating Company
applications under section 271 of the
Act, because all Bell Operating
Companies have applied for and
received authority under section 271 in
all their respective states; (5) section
1.1208, 47 CFR 1.1208, is amended to
require the filing of a disclosure notice
when parties in restricted proceedings
make a permissible presentation on a
non-ex parte basis (i.e., when other
parties have been given advance notice
and an opportunity to participate); (6)
section 1.1206(b)(2), 47 CFR
1.1206(b)(2), is clarified to state
expressly that documents shown or
given to Commission staff during ex
parte meetings are themselves written
ex parte presentations and must be
filed; (7) section 1.1206(b)(2), 47 CFR
1.1206(b)(2), is further amended by
adding a sentence to note one to codify
the practice whereby the staff at its
discretion may file an ex parte summary
of a multiparty meeting as an alternative
to having each participant do so; (8)
section 1.1203(a)(4), 47 CFR
1.1203(a)(4), is clarified to state that the
requirement to disclose presentations
made during the Sunshine period only
applies to presentations made in permitbut-disclose proceedings; (9) section
1.1203, 47 CFR 1.1203, is clarified to
state that the Sunshine period
prohibition does not affect parties’
obligation to file a written ex parte
presentation or memorandum

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Federal Register / Vol. 76, No. 84 / Monday, May 2, 2011 / Rules and Regulations
summarizing an oral ex parte
presentation made on the day before the
Sunshine period begins, even though
new ex parte presentations are not
permitted during the Sunshine period
unless they are made pursuant to an
exception to the prohibition on ex parte
contacts; and (10) section 1.1206, 47
CFR 1.1206, is non-substantively
reorganized to make it clearer and easier
to understand and to make various
conforming edits.
Regulatory Flexibility Act. Our actions
do not require notice and comment, and
therefore fall outside the Regulatory
Flexibility Act of 1980, as amended, 5
U.S.C. 605(b), and require no initial or
final regulatory flexibility analysis
under Section 604 of that Act, 5 U.S.C.
604. We nevertheless note that we
anticipate that the rules changes
adopted in the Report and Order will
not have a significant economic impact
on a substantial number of small entities
or impose significant costs on parties to
Commission proceedings.
Paperwork Reduction Act of 1995
Analysis. This document contains new
and modified information collection
requirements. The Commission, as part
of its continuing effort to reduce
paperwork burdens, invites the general
public to comment on the information
collection requirements contained in
this Report and Order as required by the
Paperwork Reduction Act of 1995,
Public Law 104–13. In addition, the
Commission notes that pursuant to the
Small Business Paperwork Relief Act of
2002, Public Law 107–198, see 44 U.S.C.
3506(c)(4), we previously sought
specific comment on how the
Commission might further reduce the
information collection burden for small
business concerns with fewer than 25
employees. In this present document,
we have assessed the effects of the
modified ex parte rules on small
business concerns, and find that they
will impose no significant added burden
on businesses with fewer than 25
employees.
Congressional Review Act. The
Commission will send a copy of this
Report and Order to Congress and the
Government Accountability Office
pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects

jlentini on DSKJ8SOYB1PROD with RULES

47 CFR Part 0
Organization and functions
(Government agencies).
47 CFR Part 1

16:25 Apr 29, 2011

Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR parts 0 and
1 as follows:
PART 0—COMMISSION
ORGANIZATION
1. The authority citation for part 0
continues to read as follows:

■

Authority: Sec. 5, 48 Stat. 1068, as
amended; 47 U.S.C. 155, 225, unless
otherwise noted.

2. Section 0.111 is amended by
redesignating paragraphs (a)(15) through
(23) as paragraphs (a)(16) through (24)
and by adding new paragraph (a)(15) to
read as follows:

■

§ 0.111

Functions of the Bureau.

(a) * * *
(15) Upon referral from the General
Counsel pursuant to § 0.251(g), impose
sanctions for violations of the
Commission’s ex parte rules including,
but not limited to, the imposition of
monetary forfeitures, consistent with
§ 0.311.
*
*
*
*
*
■ 3. Section 0.251 is amended by
revising paragraph (g) to read as follows:
§ 0.251

Authority delegated.

*

*
*
*
*
(g) The General Counsel is delegated
authority to issue rulings on whether
violations of the ex parte rules have
occurred and to impose appropriate
sanctions. The General Counsel shall
refer to the Enforcement Bureau for
disposition pursuant to § 0.311(b) any
matter in which a forfeiture or a citation
under 47 U.S.C. 503(b)(5) may be
warranted. If the Enforcement Bureau
determines that forfeiture or a citation is
not warranted, the matter shall be
referred back to the General Counsel for
appropriate action.
*
*
*
*
*
PART 1—PRACTICE AND
PROCEDURE
4. The authority citation for part 1
continues to read as follows:

■

Authority: 15 U.S.C. 79 et seq.; 47 U.S.C.
151, 154(i), 154(j), 155, 157, 225, 303(r), and
309.
§ 1.1202

[Amended]

5. In § 1.1202, remove paragraph
(d)(6).
■ 6. Section 1.1203 is amended by
revising paragraphs (a)(4) and (b)
■

Administrative practice and
procedure, claims, Investigations,
Lawyers, Telecommunications.

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Federal Communications Commission.
Marlene H. Dortch,
Secretary.

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24381

introductory text, and adding paragraph
(c), to read as follows:
§ 1.1203

Sunshine period prohibition.

(a) * * *
(4) The presentation is made by a
member of Congress or his or her staff,
or by other agencies or branches of the
Federal government or their staffs in a
proceeding exempt under § 1.1204 or
subject to permit-but-disclose
requirements under § 1.1206. Except as
otherwise provided in § 1.1204(a)(6), if
the presentation is of substantial
significance and clearly intended to
affect the ultimate decision, and is made
in a permit-but-disclose proceeding, the
presentation (or, if oral, a summary of
the presentation) must be placed in the
record of the proceeding by Commission
staff or by the presenter in accordance
with the procedures set forth in
§ 1.1206(b).
(b) The prohibition set forth in
paragraph (a) of this section begins on
the day (including business days and
holidays) after the release of a public
notice that a matter has been placed on
the Sunshine Agenda until the
Commission:
*
*
*
*
*
(c) The prohibition set forth in
paragraph (a) of this section shall not
apply to the filing of a written ex parte
presentation or a memorandum
summarizing an oral ex parte
presentation made on the day before the
Sunshine period begins, or a permitted
reply thereto.
■ 7. Section 1.1204 is amended by
revising paragraphs (a)(6) and
(a)(12)(iv), and adding paragraphs
(a)(12)(v) and (vi) to read as follows:
§ 1.1204 Exempt ex parte presentations
and proceedings.

(a) * * *
(6) The presentation is to or from the
United States Department of Justice or
Federal Trade Commission and involves
a communications matter in a
proceeding which has not been
designated for hearing and in which the
relevant agency is not a party or
commenter (in an informal rulemaking
or Joint board proceeding) provided
that, any new factual information
obtained through such a presentation
that is relied on by the Commission in
its decision-making process will be
disclosed by the Commission no later
than at the time of the release of the
Commission’s decision;
*
*
*
*
*
(12) * * *
(iv) The Number Portability
Administrator relating to the
administration of local number
portability pursuant to 47 U.S.C.

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Federal Register / Vol. 76, No. 84 / Monday, May 2, 2011 / Rules and Regulations

251(b)(2) and (e), provided that the
relevant administrator has not filed
comments or otherwise participated as a
party in the proceeding;
(v) The TRS Numbering
Administrator relating to the
administration of the TRS numbering
directory pursuant to 47 U.S.C. 225 and
47 U.S.C. 251(e); or
(vi) The Pooling Administrator
relating to the administration of
thousands-block number pooling
pursuant to 47 U.S.C. 251(e).
*
*
*
*
*
■ 8. Section 1.1206 is amended by
revising paragraph (a)(12), removing
paragraph (a)(13), and redesignating
paragraph (a)(14) as (a)(13), and revising
paragraph (b) to read as follows:
§ 1.1206

Permit-but-disclose proceedings.

jlentini on DSKJ8SOYB1PROD with RULES

(a) * * *
(12) A modification request filed
pursuant to § 64.1001 of this chapter;
and
*
*
*
*
*
(b) The following disclosure
requirements apply to ex parte
presentations in permit but disclose
proceedings:
(1) Oral presentations. A person who
makes an oral ex parte presentation
subject to this section shall submit to
the Commission’s Secretary a
memorandum that lists all persons
attending or otherwise participating in
the meeting at which the ex parte
presentation was made, and summarizes
all data presented and arguments made
during the oral ex parte presentation.
Memoranda must contain a summary of
the substance of the ex parte
presentation and not merely a listing of
the subjects discussed. More than a one
or two sentence description of the views
and arguments presented is generally
required. If the oral ex parte
presentation consisted in whole or in
part of the presentation of data or
arguments already reflected in the
presenter’s written comments,
memoranda or other filings in the
proceeding, the presenter may provide
citations to such data or arguments in
his or her prior comments, memoranda,
or other filings (specifying the relevant
page and/or paragraph numbers where
such data or arguments can be found) in
lieu of summarizing them in the
memorandum.
Note to Paragraph (b)(1): Where, for
example, presentations occur in the form of
discussion at a widely attended meeting,
preparation of a memorandum as specified in
the rule might be cumbersome. Under these
circumstances, the rule may be satisfied by
submitting a transcript or recording of the
discussion as an alternative to a
memorandum. Likewise, Commission staff in

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its discretion may file an ex parte summary
of a multiparty meeting as an alternative to
having each participant file a summary.

(2) Written and oral presentations. A
written ex parte presentation and a
memorandum summarizing an oral ex
parte presentation (and cover letter, if
any) shall clearly identify the
proceeding to which it relates, including
the docket number, if any, and must be
labeled as an ex parte presentation.
Documents shown or given to
Commission staff during ex parte
meetings are deemed to be written ex
parte presentations and, accordingly,
must be filed consistent with the
provisions of this section. Consistent
with the requirements of § 1.49
paragraphs (a) and (f), additional copies
of all written ex parte presentations and
notices of oral ex parte presentations,
and any replies thereto, shall be mailed,
e-mailed or transmitted by facsimile to
the Commissioners or Commission
employees who attended or otherwise
participated in the presentation.
(i) In proceedings governed by
§ 1.49(f) or for which the Commission
has made available a method of
electronic filing, written ex parte
presentations and memoranda
summarizing oral ex parte
presentations, and all attachments
thereto, shall, when feasible, be filed
through the electronic comment filing
system available for that proceeding,
and shall be filed in a native format
(e.g., .doc, .xml, .ppt, searchable .pdf). If
electronic filing would present an
undue hardship, the person filing must
request an exemption from the
electronic filing requirement, stating
clearly the nature of the hardship, and
submitting an original and one copy of
the written ex parte presentation or
memorandum summarizing an oral ex
parte presentation to the Secretary, with
a copy by mail or by electronic mail to
the Commissioners or Commission
employees who attended or otherwise
participated in the presentation.
(ii) Confidential Information. In cases
where a filer believes that one or more
of the documents or portions thereof to
be filed should be withheld from public
inspection, the filer should file
electronically a request that the
information not be routinely made
available for public inspection pursuant
to § 0.459 of this chapter.
Accompanying any such request, the
filer shall include in paper form a copy
of the document(s) containing the
confidential information, and also shall
file electronically a copy of the same
document(s) with the confidential
information redacted. The redacted
document shall be machine-readable
whenever technically possible. Where

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the document to be filed electronically
contains metadata that is confidential or
protected from disclosure by a legal
privilege (including, for example, the
attorney-client privilege), the filer may
remove such metadata from the
document before filing it electronically.
(iii) Filing dates outside the Sunshine
period. Except as otherwise provided in
paragraphs (b)(2)(iv) and (v) of this
section, all written ex parte
presentations and all summaries of oral
ex parte presentations must be filed no
later than two business days after the
presentation. As set forth in § 1.4(e)(2),
a ‘‘business day’’ shall not include a
holiday (as defined in § 1.4(e)(1)). In
addition, for purposes of computing
time limits under the rules governing ex
parte presentations, a ‘‘business day’’
shall include the full calendar day (i.e.,
from 12:00 a.m. Eastern Time until
11:59:59 p.m. Eastern Time).
Example: On Tuesday a party makes an ex
parte presentation in a permit-but-disclose
proceeding to a Commissioner. The second
business day following the ex parte
presentation is the following Thursday
(absent an intervening holiday). The
presenting party must file its ex parte notice
before the end of the day (11:59:59 p.m.) on
Thursday. Similarly, if an ex parte
presentation is made on Friday, the second
business day ordinarily would be the
following Tuesday, and the ex parte notice
must be filed no later than 11:59:59 p.m. on
that Tuesday.

(iv) Filing dates for presentations
made on the day that the Sunshine
notice is released. For presentations
made on the day the Sunshine notice is
released, any written ex parte
presentation or memorandum
summarizing an oral ex parte
presentation required pursuant to
§ 1.1206 or § 1.1208 must be submitted
no later than the end of the next
business day. Written replies, if any,
shall be filed no later than two business
days following the presentation, and
shall be limited in scope to the specific
issues and information presented in the
ex parte filing to which they respond.
Example: On Tuesday, a party makes an ex
parte presentation in a permit-but-disclose
proceeding to a Commissioner. That same
day, the Commission’s Secretary releases the
Sunshine Agenda for the next Commission
meeting and that proceeding appears on the
Agenda. The Sunshine period begins as of
Wednesday, and therefore the presenting
party must file its ex parte notice by the end
of the day (11:59:59 p.m.) on Wednesday. A
reply would be due by the end of the day
(11:59:59 p.m.) on Thursday.

(v) Filing dates during the Sunshine
Period. If an ex parte presentation is
made pursuant to an exception to the
Sunshine period prohibition, the
written ex parte presentation or

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Federal Register / Vol. 76, No. 84 / Monday, May 2, 2011 / Rules and Regulations
memorandum summarizing an oral ex
parte presentation required under this
paragraph shall be submitted by the end
of the same business day on which the
ex parte presentation was made. The
memorandum shall identify plainly on
the first page the specific exemption in
§ 1.1203(a) on which the presenter
relies, and shall also state the date and
time at which any oral ex parte
presentation was made. Written replies
to permissible ex parte presentations
made pursuant to an exception to the
Sunshine period prohibition, if any,
shall be filed no later than the next
business day following the presentation,
and shall be limited in scope to the
specific issues and information
presented in the ex parte filing to which
they respond.

jlentini on DSKJ8SOYB1PROD with RULES

Example: On Tuesday, the Commission’s
Secretary releases the Sunshine Agenda for
the next Commission meeting, which triggers
the beginning of the Sunshine period on
Wednesday. On Thursday, a party makes an
ex parte presentation to a Commissioner on
a proceeding that appears on the Sunshine
Agenda. That party must file an ex parte
notice by the end of the day (11:59:59 p.m.)
on Thursday. A reply would be due by the
end of the day (11:59:59 p.m.) on Friday.

(vi) If a notice of an oral ex parte
presentation is incomplete or
inaccurate, staff may request the filer to
correct any inaccuracies or missing
information. Failure by the filer to file
a corrected memorandum in a timely
fashion as set forth in paragraph (b) of
this section, or any other evidence of
substantial or repeated violations of the
rules on ex parte contacts, should be
reported to the General Counsel.
(3) Notwithstanding paragraphs (b)(1)
and (2) of this section, permit-butdisclose proceedings involving
presentations made by members of
Congress or their staffs or by an agency
or branch of the Federal Government or
its staff shall be treated as ex parte
presentations only if the presentations
are of substantial significance and
clearly intended to affect the ultimate
decision. The Commission staff shall
prepare written summaries of any such
oral presentations and place them in the
record in accordance with paragraph (b)
of this section and also place any
written presentations in the record in
accordance with that paragraph.
(4) Notice of ex parte presentations.
The Commission’s Secretary shall issue
a public notice listing any written ex
parte presentations or written
summaries of oral ex parte presentations
received by his or her office relating to
any permit-but-disclose proceeding.
Such public notices generally should be
released at least twice per week.

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Jkt 223001

Note to Paragraph (b): Interested persons
should be aware that some ex parte filings,
for example, those not filed in accordance
with the requirements of this paragraph (b),
might not be placed on the referenced public
notice. All ex parte presentations and
memoranda filed under this section will be
available for public inspection in the public
file or record of the proceeding, and parties
wishing to ensure awareness of all filings
should review the public file or record.

9. Section 1.1208 is amended by
revising the introductory text to read as
follows:

■

§ 1.1208

Restricted proceedings.

Unless otherwise provided by the
Commission or its staff pursuant to
§ 1.1200(a) ex parte presentations (other
than ex parte presentations exempt
under § 1.1204(a)) to or from
Commission decision-making personnel
are prohibited in all proceedings not
listed as exempt in § 1.1204(b) or
permit-but-disclose in § 1.1206(a) until
the proceeding is no longer subject to
administrative reconsideration or
review or judicial review. Proceedings
in which ex parte presentations are
prohibited, referred to as ‘‘restricted’’
proceedings, include, but are not
limited to, all proceedings that have
been designated for hearing,
proceedings involving amendments to
the broadcast table of allotments,
applications for authority under Title III
of the Communications Act, and all
waiver proceedings (except for those
directly associated with tariff filings). A
party making a written or oral
presentation in a restricted proceeding,
on a non-ex parte basis, must file a copy
of the presentation or, for an oral
presentation, a summary of the
presentation in the record of the
proceeding using procedures consistent
with those specified in § 1.1206.
*
*
*
*
*
■ 10. Section 1.1216 is amended by
revising paragraph (a) and adding
paragraph (d) to read as follows:
§ 1.1216

Sanctions.

(a) Parties. Upon notice and hearing,
any party to a proceeding who directly
or indirectly violates or causes the
violation of any provision of this
subpart, or who fails to report the facts
and circumstances concerning any such
violation as required by this subpart,
may be subject to sanctions as provided
in paragraph (d) of this section, or
disqualified from further participation
in that proceeding. In proceedings other
than a rulemaking, a party who has
violated or caused the violation of any
provision of this subpart may be
required to show cause why his or her
claim or interest in the proceeding

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24383

should not be dismissed, denied,
disregarded, or otherwise adversely
affected. In any proceeding, such
alternative or additional sanctions as
may be appropriate may also be
imposed.
*
*
*
*
*
(d) Penalties. A party who has
violated or caused the violation of any
provision of this subpart may be subject
to admonishment, monetary forfeiture,
or to having his or her claim or interest
in the proceeding dismissed, denied,
disregarded, or otherwise adversely
affected. In any proceeding, such
alternative or additional sanctions as
may be appropriate also may be
imposed. Upon referral from the General
Counsel following a finding of an ex
parte violation pursuant to § 0.251(g) of
this chapter, the Enforcement Bureau
shall have delegated authority to impose
sanctions in such matters pursuant to
§ 0.111(a)(15) of this chapter.
[FR Doc. 2011–10353 Filed 4–29–11; 8:45 am]
BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 0 and 1
[GC Docket No. 10–44; FCC 11–16]

Commission’s Rules of Practice,
Procedure, and Organization
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:

In this document, the
Commission revises certain procedural
and organizational rules. The rule
revisions fall into three general
categories. First, the Commission adopts
several docket management measures,
such as broadening the use of docketed
proceedings; expanding the requirement
for electronic filing (and reducing the
scope of the obligation to file paper
copies); and permitting staff in certain
circumstances to notify parties
electronically of docket filings and to
close inactive dockets. Second, the
Commission revises rules regarding the
reconsideration of agency decisions,
delegating authority to the staff to
dismiss or deny defective or repetitive
petitions for reconsideration of
Commission decisions, and amending
the rule that authorizes the Commission
to reconsider a decision on its own
motion within 30 days to make clear
that the Commission may modify a
decision (not merely set it aside or
vacate it). Finally, the Commission
implements changes to miscellaneous
regulations. In order to make its

SUMMARY:

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