Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | GC Docket No. 02-37          |
|                                  | * |                              |
| Amendment of Section 1.17 of the | ) |                              |
| Commission's Rules Concerning    | * |                              |
| Truthful Statements to the       | * |                              |
| Commission                       |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**REPORT AND ORDER**

**Adopted:** March 4, 2003 **Released:** March 10, 2003

By the Commission:

1\. By this report and order, we modify section 1.17 of our Rules, 47
C.F.R. § 1.17, which specifies the requirements for the submission of
truthful statements to the Commission. The new rule is a clearer, more
comprehensive, and more focused articulation of the standards for
truthful statements than the old rule. The new rule will also enhance
the effectiveness of our enforcement efforts.

2\. The new rule broadens the category of persons subject to the rule by
applying the requirement to: (1) any holder of any Commission
authorization, whether by application or by blanket authorization or
other rule; (2) any person performing without Commission authorization
an activity that requires Commission authorization; (3) any person that
has received a citation or a letter of inquiry from the Commission or
its staff, or is otherwise the subject of a Commission or staff
investigation, including an informal investigation; (4) in a proceeding
to amend the FM or Television Table of Allotments, any person filing an
expression of interest, and (5) to the extent not already covered above,
any cable operator or common carrier. The former rule applied only to
applicants and radio licensees and permittees. The amended rule applies
to investigatory and adjudicatory matters and to tariff proceedings, but
not to general rulemaking proceedings or declaratory ruling proceedings.
The new rule prohibits written and oral statements of fact that are
intentionally incorrect or misleading and written statements that are
made without a reasonable basis for believing that the statement is
correct and not misleading. The former rule, which applied only to
written submissions, was less precise in defining the standard of care
required.

> **I. BACKGROUND**

3\. Currently, section 1.17 of the Commission's rules provides:

> **1.17 Truthful written statements and responses to Commission
> inquiries and correspondence**
>
> The Commission or its representatives may, in writing, require from
> any applicant, permittee or licensee written statements of fact
> relevant to a determination whether an application should be granted
> or denied, or to a determination whether a license should be revoked,
> or to some other matter within the jurisdiction of the Commission. No
> applicant, permittee or licensee shall in any response to Commission
> correspondence or inquiry or in any application, pleading, report or
> any other written statement submitted to the Commission, make any
> misrepresentation or willful material omission bearing on any matter
> within the jurisdiction of the Commission.

A note to the rule also states that the rule covers only written
submissions. [^1]

4\. In our notice of proposed rulemaking,[^2] we found that although the
vast majority of persons dealing with the Commission understand their
obligation to take the appropriate steps to ensure that the information
they submit is accurate, the scope of the current section 1.17 as
written might reflect an unduly narrow articulation of the obligations
of persons dealing with the Commission. We were concerned that this
might hamper our ability to take enforcement action in those cases where
persons dealing with the Commission do not exercise the requisite care
to ensure that they submit accurate information. NPRM at ¶ 3.
Accordingly, we proposed to revise section 1.17 to provide that the rule
would prohibit incorrect statements or omissions that are the result of
negligence, as well as an intent to deceive. We also wished to make
clear that the rule would cover statements made to the Commission in all
contexts, and not just in circumstances in which the Commission has
requested information. Finally, we proposed to broaden the rule's scope
to include oral statements and not just written statements, and to apply
the rule to all persons making statements to the Commission, including
non-regulatees. The proposed rule provided as follows:

§ 1.17 Truthful and accurate statements to the Commission

> \(a\) The Commission or its representatives may, in writing, require
> written statements of fact relevant to the determination of any matter
> within the jurisdiction of the Commission.
>
> \(b\) No person shall, in any written or oral statement of fact
> submitted to the Commission, intentionally or negligently provide
> incorrect material information or intentionally or negligently omit
> any material information bearing on any matter within the jurisdiction
> of the Commission.

**II. DISCUSSION**

5\. We received comments and reply comments from several sources,
including the Federal Communications Bar Association.[^3] The comments
have been very helpful to us in clarifying the appropriate scope of the
rule. The amended rule will apply to investigatory and adjudicatory
matters and to tariff proceedings. The amended rule will not apply to
comments submitted in general rulemakings or to declaratory ruling
proceedings. In addition, it will apply only to Commission regulatees,
as defined by the rule, and not to all persons Further, it will apply to
intentionally incorrect or misleading factual statements that are either
oral or written and to written statements that are made without a
reasonable basis to believe that they are materially correct and not
misleading. Specifically, the new rule provides:

> **§ 1.17 Truthful and accurate statements to the Commission**
>
> \(a\) In any investigatory or adjudicatory matter within the
> Commission's jurisdiction (including, but not limited to, any informal
> adjudication or informal investigation but excluding any declaratory
> ruling proceeding) and in any proceeding to amend the FM or Television
> Table of Allotments (with respect to expressions of interest) or any
> tariff proceeding, no person subject to this rule shall:
>
> \(1\) in any written or oral statement of fact, intentionally provide
> material factual information that is incorrect or intentionally omit
> material information that is necessary to prevent any material factual
> statement that is made from being incorrect or misleading; and
>
> \(2\) in any written statement of fact, provide material factual
> information that is incorrect or omit material information that is
> necessary to prevent any material factual statement that is made from
> being incorrect or misleading without a reasonable basis for believing
> that any such material factual statement is correct and not
> misleading.
>
> \(b\) For purpose of paragraph (a), "persons subject to this rule"
> shall mean the following:
>
> \(1\) any applicant for any Commission authorization;
>
> \(2\) any holder of any Commission authorization, whether by
> application or by blanket authorization or other rule;
>
> \(3\) any person performing without Commission authorization an
> activity that requires Commission authorization;
>
> \(4\) any person that has received a citation or a letter of inquiry
> from the Commission or its staff, or is otherwise the subject of a
> Commission or staff investigation, including an informal
> investigation;
>
> \(5\) in a proceeding to amend the FM or Television Table of
> Allotments, any person filing an expression of interest; and
>
> \(6\) to the extent not already covered above, any cable operator or
> common carrier.

As discussed below, these changes achieve, in a manner that fully
responds to the issues raised by the commenters, our objective of
codifying an appropriate standard of care regarding submissions of
information to the Commission and ensuring that we may take appropriate
enforcement action when regulatees submit incorrect or misleading
information to the Commission. The new rule improves upon the old rule
by making clear that its obligations extend to all regulatees and not
just to applicants, licensees, and permittees. The new rule also
specifies in a clearer and more comprehensive manner the scope of the
statements covered and the standards to which regulatees must adhere.

**A. SCOPE OF APPLICABLE STATEMENTS**

6\. At the outset, several comments point out that the language in the
proposed rule indicating that persons shall not omit "any material
information bearing on any matter within the jurisdiction of the
Commission" seems overbroad. Even though this language is identical to
that in the current rule, it fails to specify clearly the context in
which the requirement applies. The FCBA contends that this language
would literally require parties to disclose information whether or not
relevant to matters before the Commission or where the parties had a
legitimate reason not to disclose information. Similarly, Verizon
believes that the proposed rule does not provide fair notice as to the
amount of information that would have to be supplied to avoid a
violation for material omission. AFCCE also asserts that the language is
overbroad.

7\. We did not, by this language, or otherwise, intend to create
arbitrary constraints on what parties could say -- or not say -- in
their pleadings. Accordingly, we wish to clarify that our reference to
"materiality" and "Commission jurisdiction" was intended only to
indicate that the representations and omissions we are concerned about
are those material[^4] to the issues before the Commission and that we
do not intend the rule to apply to representations or omissions that are
insignificant or extraneous to the issues. We therefore will modify the
language of the rule to better clarify its intended scope

**B. STANDARD OF CARE AND APPLICABLE PROCEEDINGS**

8\. Several commenters also took issue with our proposal to adopt a
negligence standard. The FCBA asserts that a "negligence" standard would
be vague and would impose an unfair burden on participants in Commission
proceedings. In the FCBA's view, the Commission could adequately clarify
current policy by prohibiting "willful," "knowing," or "reckless" false
statements and omissions. Alternatively, the Commission could expand
current policy by adopting a formula such as "without reasonable belief
in the truthfulness or completeness" of a representation. Minority Media
contends that the proposed standard is unnecessarily broad in that no
showing has been made of a need to apply sanctions to submissions that
are not abusive. Verizon criticizes the proposal to include inadvertent
misstatements within the scope of the rule and takes particular
exception to applying the rule to omissions. In Verizon's view, such an
approach would hamper the ability of people making submissions to the
Commission to freely fashion their arguments, in violation of the First
Amendment, and would have an especially chilling effect on people
communicating with the Commission informally. According to Verizon, they
would have to artificially qualify their arguments or remain silent.
Verizon argues that the proposed rule would lead people to flyspeck
their opponents' submissions to harass them with allegations that they
violated the rule. Leggett argues that the concept of negligence should
not be applied to rulemakings. He maintains that it is extremely
difficult to define negligence in the context of rulemakings because the
policy judgments at issue involve differences in values, priorities, and
political opinions. Thus, according to Leggett, real and honest
differences in philosophy may produce differing perceptions of the facts
relevant to policy determinations. Kay and AFCCE also object to the
negligence standard. OPUC does not believe that the negligence standard
is vague or overbroad and considers the other parties' First Amendment
arguments overstated. OPUC does, however, have concerns about applying a
negligence standard to rulemakings and omissions.

9\. These comments have been helpful in delineating the appropriate
standard that we should adopt and the appropriate contexts in which any
standard should be applied. Our historical definition of
misrepresentation and lack of candor specified an actual intent to
deceive the Commission. We continue to believe that the rule barring
such intentional deceptions, whether by affirmative misstatements or by
omissions of material facts, should apply, in appropriate contexts, to
both oral and written material statements of fact.

10\. We are also persuaded that the rule should apply in written
statements to representations made without having a reasonable basis to
believe that they are correct and not misleading. This is the concept we
intended to apply when we used the term "negligence." We disagree with
the FCBA's contention that no other federal agency employs a negligence
standard.[^5] Nevertheless, because we believe the FCBA's suggested
standard is a clearer statement of the appropriate standard of care, we
will adopt it instead. The rule will thus refer to material, factual
information provided without a reasonable basis for believing it correct
and not misleading.

11\. We agree with the commenters that "reasonableness" depends on the
circumstances; we do not intend to create arbitrary or unrealistic
burdens on people making, for example, informal statements to the
Commission, or giving "ball park figures."[^6] Moreover, we agree that
it would be impractical to apply a negligence standard to
oral statements, because of the difficulty in determining the degree of
due diligence applicable to an oral statement.

12\. We will therefore apply the reasonableness standard in applicable
contexts, only to regulatees' written statements. We believe that in
preparing written statements in fact-based adjudications and
investigations, regulatees are on heightened notice that they must have
a reasonable basis to believe that what they say is correct and not
misleading. In these circumstances, we consider it justified to require
that parties use due diligence in providing information that is correct
and not misleading to the Commission, including taking appropriate
affirmative steps to determine the truthfulness of what is being
submitted. A failure to exercise such reasonable diligence would mean
that the party did not have a reasonable basis for believing in the
truthfulness of the information. We will modify the proposed rule
accordingly.

13\. In defining the proceedings to which the rule applies, we see no
need at this time to apply any aspect of rule 1.17 to comments in
rulemaking proceedings (other than proceedings to amend the FM or
Television Table of Allotments and tariff proceedings) or declaratory
ruling proceedings. The primary focus of our proposal was to enhance the
effectiveness of adjudicatory and investigatory proceedings by providing
for an expanded range of sanctions that can be imposed in those
contexts. We do not see rulemakings of general applicability and
declaratory rulings as raising enforcement issues of the same urgency.
Additionally, while we expect parties to be truthful in rulemakings and
declaratory ruling proceedings, we are mindful that such proceedings
typically involve wide-ranging discussions of general policy rather than
specific facts to be weighed in an adjudicatory manner. We do not wish
to hinder full and robust public participation in such policymaking
proceedings by encouraging collateral wrangling over the truthfulness of
the parties' statements. Expressions of interest in proceedings to amend
the FM or Television Table of Allotments,[^7] and tariff proceedings
raise concerns that are distinguishable from those in rulemakings
generally and will be subject to the rule. Therefore we will limit the
applicability of rule 1.17 to investigatory, adjudicatory (except
declaratory ruling), expressions of interest in proceedings to amend the
FM or Television Table of Allotments, and tariff proceedings.

**C. PERSONS TO WHOM THE RULE APPLIES**

14\. As an additional matter, some of the comments questioned the
applicability of the rule to nonregulatees, attorneys, and engineers.
Minority Media asserts that the rule should not be applicable to persons
who are not Commission regulatees, and specifically to members of the
public who file complaints or otherwise provide information to the
Commission while not under oath. According to Minority Media, the
participation by such "whistleblowers" in the Commission's processes
would be unduly chilled if they feared that their inadvertent
misstatements might be penalized. OPUC, Verizon, and Kay agree with
Minority Media that section 1.17 should not be applied to persons who
are not Commission regulatees.

15\. The FCBA urges that section 1.17 should not apply directly to
attorneys. According to the FCBA, doing so would potentially interfere
with the attorney-client relationship by giving the attorney an
incentive to disregard the client's wishes to protect the attorney. The
FCBA maintains that existing ethical rules adequately address possible
misconduct by attorneys. AFCCE contends that engineers as well as
attorneys should not be subject to section 1.17. AFCCE offers several
examples in which engineers proffering information in good faith might
be penalized by the proposed language.

16\. As indicated above, the primary focus of our proposal was to
enhance the effectiveness of investigatory and adjudicatory proceedings.
Accordingly, the rule focuses appropriately on persons subject to the
Commission's regulatory jurisdiction as defined by the five categories
in the rule. We do not at this time see a need to apply the rule to
nonregulatees who have occasion to communicate with the Commission. Of
course, as noted in the current rule, false statements by nonregulatees
may be subject to the criminal provisions of 18 U.S.C. § 1001.

17\. This approach moots FCBA's concern that applying section 1.17 of
the rules directly to attorneys may potentially conflict with the
ethical responsibilities inherent in the attorney-client relationship.
The rule applies to the regulated entity at issue. Thus, for example, if
a broadcast licensee submits an application or affidavit signed by an
attorney or engineer in support of its application, and it turns out
that the attorney or engineer employee intentionally provided incorrect
information, it is the regulatee that will have violated the rule, not
the attorney or engineer. Thus, the rule, by design and in light of its
purpose, does not cover attorney or engineers in their representational
capacity, but rather only the extent that they themselves are the
regulated entity.[^8]

**D. ADDITIONAL MATTER**

18\. Finally, our revision of the rule makes unnecessary the language
contained in the first subparagraph of the rule. The authority of the
Commission to obtain information is set forth in various statutory
provisions, for example, 47 U.S.C. §§ 218, 308(b), 403, and does not
need to be reiterated in the rule.

**III. PETITION FOR RULEMAKING**

19\. We take this opportunity to dispose of an additional matter. Kay
attaches to his comments a copy of a petition for rulemaking filed March
5, 2002. In his petition, Kay proposes several modifications to the
Commission's investigatory and hearing procedures. We have examined
Kay's proposals and find them without merit. Several of Kay's proposals
would unduly burden the Commission's investigatory and hearing
functions.[^9] Other matters are already adequately addressed by
existing law and policy. We will therefore deny the petition.

**IV. PROCEDURAL MATTERS**

**Regulatory Flexibility Certification**

20\. The Regulatory Flexibility Act of 1980, as amended (see 5 U.S.C. §
601 et seq.)[^10] requires a final regulatory flexibility analysis in a
notice and comment rulemaking proceeding unless we certify that \"the
rule will not, if promulgated, have a significant economic impact on a
substantial number of small entities.\" 5 U.S.C. § 605(b). We believe
that the rule we adopt today will not have a significant economic impact
on a substantial number of small entities.

21\. In expanding the scope of 47 C.F.R. § 1.17, we are merely requiring
persons subject to the Commission's regulatory jurisdiction to submit
information that is correct and not misleading. The proposed revised
rule thus would not impose any significant compliance burden on persons
dealing with the Commission, including small entities, or otherwise
affect the rights of persons participating in Commission proceedings.
The revised rule would simply enable the Commission to impose sanctions
more effectively in those instances where people intentionally or
negligently submit incorrect or misleading information. There is thus no
reason to believe that operation of the revised rule would impose
significant costs on parties to Commission proceedings.

22\. Accordingly, we certify that the rule as proposed will not have a
significant economic impact on a substantial number of small entities. 5
U.S.C. § 605(b). The Commission shall send a copy of this Report and
Order, including this certification, to the Chief Counsel for Advocacy
of the SBA. 5 U.S.C. § 605(b). A copy of this certification will also be
published in the Federal Register. [Id]{.underline}.

**Authority**

23\. Authority for this rulemaking is contained in 47 U.S.C. §§ 154(i),
154(j), 201(b), and 303(r).

**V. ORDERING CLAUSES**

24\. ACCORDINGLY, IT IS ORDERED, That 47 C.F.R. §§ 1.17, 73.1015, and
76.939 ARE AMENDED as set forth in the attached Appendix effective upon
publication in the Federal Register.

25\. IT IS FURTHER ORDERED that the Commission\'s Consumer Information
Bureau, Reference Information Center, SHALL SEND a copy of this Report
and Order, including the Regulatory Flexibility Certification, to the
Chief Counsel for Advocacy of the Small Business Administration.

26\. IT IS FURTHER ORDERED that the Petition for Rulemaking, filed March
5, 2002, by James A. Kay. Jr. IS DENIED.

27\. For further information, contact David S. Senzel, (202) 418-1720,
Office of General Counsel.

**FEDERAL COMMUNICATIONS COMMISSION**

Marlene H. Dortch

Secretary

**APPENDIX**

.

> **1.17 Truthful and accurate statements to the Commission**
>
> \(a\) In any investigatory or adjudicatory matter within the
> Commission's jurisdiction (including, but not limited to, any informal
> adjudication or informal investigation but excluding any declaratory
> ruling proceeding) and in any proceeding to amend the FM or Television
> Table of Allotments (with respect to expressions of interest) or any
> tariff proceeding, no person subject to this rule shall
>
> \(1\) in any written or oral statement of fact, intentionally provide
> material factual information that is incorrect or intentionally omit
> material information that is necessary to prevent any material factual
> statement that is made from being incorrect or misleading; and
>
> \(2\) in any written statement of fact, provide material factual
> information that is incorrect or omit material information that is
> necessary to prevent any material factual statement that is made from
> being incorrect or misleading without a reasonable basis for believing
> that any such material factual statement is correct and not
> misleading.
>
> \(b\) For purpose of paragraph (a), "persons subject to this rule"
> shall mean the following:
>
> \(1\) any applicant for any Commission authorization;
>
> \(2\) any holder of any Commission authorization, whether by
> application or by blanket authorization or other rule;
>
> \(3\) any person performing without Commission authorization an
> activity that requires Commission authorization;
>
> \(4\) any person that has received a citation or a letter of inquiry
> from the Commission or its staff, or is otherwise the subject of a
> Commission or staff investigation, including an informal
> investigation;
>
> \(5\) in a proceeding to amend the FM or Television Table of
> Allotments, any person filing an expression of interest; and
>
> \(6\) to the extent not already covered above, any cable operator or
> common carrier.

**73.1015 Truthful written statements and responses to Commission
inquiries and correspondence**

The Commission or its representatives may, in writing, require from any
applicant, permittee, or licensee written statements of fact relevant to
a determination whether an application should be granted or denied, or
to a determination whether a license should be revoked, or to any other
matter within the jurisdiction of the Commission, or, in the case of a
proceeding to amend the FM or Television Table of Allotments, require
from any person filing an expression of interest, written statements of
fact relevant to that allotment proceeding. Any such statements of fact
are subject to the provisions of 1.17 of Part 1 of these rules.

**76.939 Truthful written statements and responses to requests of
franchising authority**

Cable operators shall comply with franchising authorities\' and the
Commission\'s requests for information, orders, and decisions. Any
information submitted to a franchising authority or the Commission in
making a rate determination pursuant to an FCC Form 393 (and/or FCC
Forms 1200/1205) filing or a cost-of-service showing is subject to the
provisions of 1.17 of Part 1 of these rules.

[^1]: The note to the rule provides as follows:

    > Note: Section 1.17 is limited in application to written matter. It
    > implies no change in the Commission\'s existing policies
    > respecting the obligation of applicants, permittees and licensees
    > in all instances to respond truthfully to requests for information
    > deemed necessary to the proper execution of the Commission\'s
    > functions.

[^2]: [Amendment of Section 1.17 of the Commission's Rules]{.underline},
    17 FCC Rcd 3296 (2002) (NPRM).

[^3]: We received comments from: (1) The Federal Communications Bar
    Association, (2) James A. Kay, Jr. (Kay), (3) Nickolaus E. Leggett
    (Leggett), (4) The Minority Media and Telecommunications Council
    (Minority Media), and (5) The Verizon Telephone Companies (Verizon).
    We received reply comments from: (1) The Office of the \[Texas\]
    Public Utilities Counsel (OPUC) and (2) The Association of Federal
    Communications Consulting Engineers (AFCCE).

[^4]: "Material" has been defined as "important," "more or less
    necessary," "having influence or effect." [See]{.underline}
    [McDonald v. Murray]{.underline}, 515 P.2d 151, 152 (Wash. 1973).
    Additionally, a "material representation" has been defined as one
    "relating to matter which is so substantial or important as to
    influence the party to whom it is made." [See]{.underline} [In the
    Matter of Mark E. Wagner]{.underline}, 744 N.E.2d 418, 421 (Ind.
    2001).

[^5]: . Relevant provisions include: 10 C.F.R. § 820.11 (Information
    regarding a nuclear activity provided to DOE must be complete and
    accurate in all material respects. Enforcement guidelines indicate
    that negligent violations are punishable); 26 C.F.R. § 1.1609-1T
    (Negligent material misstatements with respect to the issuance of a
    mortgage credit certificate subject to a \$1000 fine); 19 C.F.R. Pt.
    171 App. B (Introduction of goods into commerce through fraud, gross
    negligence, or negligence by means of material false information or
    omission is violation); 19 C.F.R. Pt. 171 App. D (Similar provision
    regarding the false or negligent payment of drawback claims); 21
    U.S.C. § 842 (Negligent failure to keep records or make reports
    required by § 830 concerning controlled substances is unlawful).

[^6]: Moreover, we agree with the commenters that the institution of
    prompt voluntary corrective measures prior to discovery by the
    Commission may mitigate the seriousness of a violation.

[^7]: Expressions of interest in these proceedings are specifically made
    subject to truthfulness requirements by 47 C.F.R. § 73.1015. As a
    clerical matter, we will amend 47 C.F.R. §§ 73.1015 and 76.939 to
    conform to our action here. As the FCBA points out in its comments,
    section 73.1015 is the counterpart of section 1.17 applicable
    specifically to the broadcast service. FCBA Comments at 12 n.18.
    Section 76.939 applies specifically to cable operators. We see no
    purpose in having multiple sections contain redundant provisions.
    Accordingly, we will amend sections 73.1015 and 76.939 to cross
    reference section 1.17.

[^8]: We note that the Commission's rules provide special procedures to
    deal with allegations of attorney misconduct. [See]{.underline} 47
    C.F.R. § 1.24(d).

[^9]: Kay proposes to: (1) prohibit confidential complaints, (2) make
    compliance with section 308(b) of the Communications Act voluntary
    and subject to immediate Commission and judicial review, (3) require
    service of a bill of particulars before issuance of a hearing
    designation order, (4) separate regulatory and investigatory
    functions at the bureau level, and (5) bar bureaus from
    participating in the consideration of applications for review.

[^10]: ? See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 et. seq., has
    been amended by the Contract With America Advancement Act of 1996,
    Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the
    CWAAA is the Small Business Regulatory Enforcement Fairness Act of
    1996 (SBREFA).