2011-10352. Commission's Ex Parte Rules and Other Procedural Rules

AGENCY:

Federal Communications Commission.

ACTION:

Further notice of proposed rulemaking

SUMMARY:

In this document the Commission seeks comment on amending the rules to require that notices of ex parte discussions disclose real parties-in-interest. The change was proposed because the existing rules do not enable interested parties to know whose interests are being represented when a contact is made. By requiring the disclosure of this information the proposed amendment would increase transparency and openness in Commission proceedings. The FNPRM was adopted in conjunction with a Report and Order amending the ex parte rules, which is published elsewhere in this Federal Register.

DATES:

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before June 16, 2011 and reply comments on or before July 18, 2011. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before July 1, 2011.

ADDRESSES:

You may submit comments, identified by GC Docket No. 10-43, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/​ecfs2/​. Follow the instructions for submitting comments.
• People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: [e-mail] or phone: [phone] or TTY: 202-418-0432.

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 [e-mail]. and to Nicholas A. Fraser, Office of Management and Budget, via e-mail to [e-mail] or via fax at [phone].

For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Joel Kaufman, Chief, Administrative Law Division, Office of General Counsel, [phone] or [e-mail]. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an e-mail to [e-mail] or contact Leslie F. Smith, [phone] or [e-mail].

SUPPLEMENTARY INFORMATION:

Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/​ecfs2/​ or the Federal eRulemaking Portal: http://www.regulations.gov.
• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to [e-mail] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

In this FNPRM adopted February 1, 2011 and released February 2, 2011, the Commission seeks comment on requiring anyone making an ex parte presentation to disclose the identity of any real party in interest to the issues discussed. At times a party making an ex parte contact may be representing the interests of another undisclosed party, or the presenter's interest in the proceeding may not be entirely clear. The Commission found that a disclosure requirement that addresses these problems without imposing undue burdens on the disclosing party, or requiring duplicative filing of generally-available information, would serve the public interest. The FNPRM solicits comment on what type of disclosure rule would balance those two interests, and how it should be applied. Comment is sought on the suitability of using existing judicial disclosure rules, such as Supreme Court Rules 29.6 and 37.6, or Rule 26.1 of the Rules for the U.S. Court of Appeals for the DC Circuit. Comment is also sought on the possible use of the Lobbying Disclosure Act as a model. Comment is requested on the range of proceedings to which new disclosure rules should apply, and whether disclosure requirements should apply to trade associations and non-profit entities. Finally, the Commission asks a number of logistical questions regarding disclosure. Comment is sought on whether disclosure should be required when the information to be disclosed can be found in existing Commission records or on the party's Web site. If reliance were to be placed on information already in the Commission's records, how would the Commission ensure its information is up-to-date and easily accessible? Comment is requested on whether the Commission should create a single electronically accessible source for all disclosure statements, and how often filers should be required to update this information.

Regulatory Flexibility Act. Our proposed action does not require notice and comment, and therefore falls outside the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 605(b), and requires 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 alternatives proposed in the FNPRM will not have a significant economic impact on a substantial number of small entities or impose significant costs on parties to Commission proceedings. We will, however, send a copy of the FNPRM to the Chief Counsel of Advocacy of the Small Business Administration.

Initial Paperwork Reduction Act of 1995 Analysis. This document contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due July 1, 2011.

Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

OMB Control Number: 3060-0430.

Title: Section 1.1206, Permit-but-Disclose Proceedings.

Type of Review: Revision of currently approved collection.

Respondents: Individuals or households; Business or other for-profits; Not-for-profit institutions; Federal Government; and State, local or tribal governments.

Number of Respondents and Responses: 11,500 respondents; 34,500 responses.

Estimated time per Response: 45 minutes (0.75 hours).

Obligation to Respond: Required to obtain or retain benefits.

Frequency of Response: On-occasion reporting requirements; Third party disclosure.

Total Annual Burden: 25,875 hours.

Total Annual Cost: None.

Privacy Act Impact Assessment: No impacts.

Nature and Extent of Confidentiality: The Commission is not requesting that respondents submit confidential information; however, consistent with the Commission's rules on confidential treatment of submissions, under 47 CFR 0.459, a presenter may request confidential treatment of ex parte presentations. In addition, the Commission will permit parties to remove metadata containing confidential or privileged information, and the Commission will also not require parties to file electronically ex parte notices that contain confidential information. The Commission will, however, require a redacted version to be filed electronically at the same time the paper filing is submitted, and that the redacted version must be machine-readable whenever technically possible.

Needs and Uses: The Commission's rules, under 47 CFR 1.1206, require that a public record be made of ex parte presentations (i.e., written presentations not served on all parties to the proceeding or oral presentations as to which all parties have not been given notice and an opportunity to be present) to decision-making personnel in “permit-but-disclose” proceedings, such as notice-and-comment rulemakings and declaratory ruling proceedings. Persons making such presentations must file two copies of written presentations and two copies of memoranda reflecting new data or arguments in oral presentations no later than the next business day after the presentation; alternatively, in proceedings in which electronic filing is permitted, a copy may be filed electronically.

On February 2, 2011, the FCC released a Report and Order and Further Notice of Proposed Rulemaking, CG Docket Number 10-43, FCC 11-11, which amends and reforms the Commission's rules on ex parte presentations (47 CFR 1.1206(b)(2)) made in the course of Commission rulemakings and other permit-but-disclose proceedings. The modifications to the existing rules adopted in this Report and Order address these problems by requiring that parties file more descriptive summaries of their ex parte contacts, by ensuring that other parties and the public have an adequate opportunity to review and respond to information submitted ex parte, and by improving the FCC's oversight and enforcement of the ex parte rules. The modified ex parte rules provide as follows: (1) Ex parte notices will be required for all oral ex parte presentations in permit-but-disclose proceedings, not just for those presentations that involve new information or arguments not already in the record; (2) If an oral ex parte presentation is limited to material already in the written record, the notice must contain either a succinct summary of the matters discussed or a citation to the page or paragraph number in the party's written submission(s) where the matters discussed can be found; (3) Notices for all ex parte presentations must include the name of the person(s) who made the ex parte presentation as well as a list of all persons attending or otherwise participating in the meeting at which the presentation was made; (4) Notices of ex parte presentations made outside the Sunshine period must be filed within two business days of the presentation; (5) The Sunshine period will begin on the day (including business days, weekends, and holidays) after issuance of the Sunshine notice, rather than when the Sunshine Agenda is issued (as the current rules provide); (6) 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, and any reply would be due by the following business day. If a permissible ex parte presentation is made during the Sunshine period (under an exception to the Sunshine period prohibition), the ex parte notice is due by the end of the same day on which the presentation was made, and any reply would need to be filed by the next business day. Any reply must be in writing and limited to the issues raised in the ex parte notice to which the reply is directed; (7) Commissioners and agency staff may continue to request ex parte presentations during the Sunshine period, but these presentations should be limited to the specific information required by the Commission; (8) Ex parte notices must be submitted electronically in machine-readable format. PDF images created by scanning a paper document may not be submitted, except in cases in which a word-processing version of the document is not available. Confidential information may continue to be submitted by paper filing, but a redacted version must be filed electronically at the same time the paper filing is submitted. An exception to the electronic filing requirement will be made in cases in which the filing party claims hardship. The basis for the hardship claim must be substantiated in the ex parte filing; (9) To facilitate stricter enforcement of the ex parte rules, the Enforcement Bureau is authorized to levy forfeitures for ex parte rule violations; (10) Copies of electronically filed ex parte notices must also be sent electronically to all staff and Commissioners present at the ex parte meeting so as to enable them to review the notices for accuracy and completeness. Filers may be asked to submit corrections or further information as necessary for compliance with the rules. Where staff believes there are instances of substantial or repeated violations of the ex parte rules, staff should report such to the General Counsel; and (11) Minor conforming and clarifying rule changes proposed in the Notice are adopted. The only change entailing increased information collection is the requirement that parties making permissible ex parte presentations in restricted proceedings must file an ex parte notice.

The information is used by parties to permit-but-disclose proceedings, including interested members of the public, to respond to the arguments made and data offered in the presentations. The responses may then be used by the Commission in its decision-making. The availability of the ex parte materials ensures that the Commission's decisional processes are fair, impartial, and comport with the concept of due process in that all interested parties can know of and respond to the arguments made to the decision-making officials.

Currently, persons making ex parte presentations have no obligation to disclose whether the person making the presentation represents a real party-in-interest whose identity has not been disclosed. In this FNPRM, the Commission proposed to require the disclosure of the identity of real parties-in-interest, which would further the goal of openness and transparency in the Commission decision making process.

Statutory Authority: 47 U.S.C. 154(i), 154(j), and 303(r).

Federal Communications Commission.

Marlene H. Dortch,

Secretary.