123 FERC ¶ 61,158 

UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

18 CFR Part 385 

Docket No. RM08-8-000 

Ex Parte Contacts and Separation of Functions 

(Issued May 15, 2008) 

AGENCY: Federal Energy Regulatory Commission. 

ACTION: Notice of Proposed Rulemaking. 

SUMMARY: The Commission is proposing to revise its regulations to clarify its rules 

governing ex parte contacts and separation of functions as they apply to proceedings 

arising out of investigations initiated under Part 1b of the Commission’s regulations. 

This proposal is intended to provide clearer guidance to both Commission litigation staff 

and persons outside the Commission in determining whether they may properly contact 

decisional employees once the Commission has established further proceedings on 

matters that had been investigated under Part 1b. The Commission also is proposing to 

clarify its regulations governing intervention to specify that intervention is not permitted 

as a matter of right in proceedings arising from Part 1b investigations. 

DATES: Comments are due [60 days after publication in the FEDERAL 

REGISTER]

ADDRESSES: You may submit comments, identified by docket number by any of the 

following methods: 
Docket No. RM08-8-000 - 2 - 

• Agency Web Site: http://ferc.gov. Documents created electronically using word 

processing software should be filed in native applications or print-to-PDF format 

and not in a scanned format. 

• Mail/Hand Delivery: Commenters unable to file comments electronically must 

mail or hand deliver an original and 14 copies of their comments to: Federal 

Energy Regulatory Commission, Secretary of the Commission, 888 First Street, 

N.E., Washington, D.C. 20426. 

Instructions: For detailed instructions on submitting comments and additional 

information on the rulemaking process, see the Comment Procedures Section of this 

document 

FOR FURTHER INFORMATION CONTACT: 

Wilbur Miller 

888 First Street, NE 

Washington, DC 20426 

(202) 502-8953 

wtmiller@ferc.gov 

SUPPLEMENTARY INFORMATION:
123 FERC ¶ 61,158 

UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

Ex Parte Contacts and Separation of Functions Docket No. RM08-8-000 

NOTICE OF PROPOSED RULEMAKING 

(Issued May 15, 2008) 

I. Background

1. The Commission is seeking comment on a proposal to revise its regulations to 

clarify the application of its rules governing off-the-record (or ex parte) communications 

and separation of functions as they apply to proceedings arising out of investigations 

under 18 CFR Part 1b. The Commission has become aware of some uncertainty 

regarding the situations in which persons outside the Commission and Commission 

litigation staff may contact decisional employees of the Commission once it establishes a 

proceeding governed by 18 CFR Part 385 in a matter that has been under investigation 

pursuant to Part 1b. These proposed revisions are intended to clarify the applicable rules, 

place respondents and litigation staff on similar footing, and continue to ensure the 

integrity of Commission proceedings. Finally, the Commission is proposing to clarify its 

regulations governing interventions to specify that intervention is not permitted as a 

matter of right in proceedings arising from investigations under Part 1b. 
Docket No. RM08-8-000 - 2 - 

II. Discussion

A. Separation of Functions and Off-the-Record Communications

2. The Commission’s regulations governing off-the-record communications (Rule 

2201),1

 or ex parte contacts, and separation of functions (Rule 2202)2 serve related 

purposes. Both seek to protect due process rights and ensure the integrity of litigated 

proceedings by limiting off-the-record contacts between persons involved in litigating a 

matter and decisional employees of the Commission.3

 Decisional employees are defined 

to include Commissioners and their staffs, Administrative Law Judges (ALJs), and other 

Commission employees and contractors who may reasonably be expected to be involved 

in the decisional process of a proceeding.4

 Rule 2201 prohibits off-the-record 

communications by persons outside the Commission, made in connection with specified 

 

1

 Rule 2201 of the Commission’s Rules of Practice and Procedure, 18 CFR 

385.2201 (2008). 

2

 Rule 2202 of the Commission’s Rules of Practice and Procedure, 18 CFR 

385.2202 (2008). 

3

 The Commission examined the purposes and operation of Rules 2201 and 2202 

in detail in Statement of Administrative Policy on Separations of Functions, 101 FERC 

¶ 61,340 (2002) (Policy Statement). 

4

 Rule 2201(c)(3). Litigation staff, settlement judges, neutrals and employees 

designated as non-decisional are excluded. 
Docket No. RM08-8-000 - 3 - 

proceedings, with decisional employees. Rule 2202 prohibits litigation staff from 

advising on or participating in the findings, conclusions or decisions of adjudications.5

3. Rules 2201 and 2202 have important implications for investigations conducted 

under Part 1b. Generally speaking, Part 1b investigations are carried out by staff from 

the Office of Enforcement and are non-public. By regulation, information obtained by 

staff during the course of a Part 1b investigation is considered non-public until such time 

as the Commission determines disclosure is appropriate, or until disclosure occurs during 

an adjudicatory proceeding or pursuant to the Freedom of Information Act.6

 Part 1b 

investigations therefore differ from other types of investigations carried out by the 

Commission, such as investigations into the justness and reasonableness of the rates in a 

particular market. Investigations that are not carried out under Part 1b generally are 

announced publicly, and include public comment and the maintenance of a public record 

in the same manner as adjudicatory proceedings.7

4. During an investigation under Part 1b, the assigned employees gather information 

and examine the actions of regulated companies and market participants. The matters 

raised may not necessarily result in a proceeding governed by Part 385. For example, 

 5

 Although the coverage of Rules 2201 and 2202 is not identical—off-the-record 

communications compared to advising on decisions—in practice the coverage normally 

overlaps. 

6

 18 CFR 1b.9 (2008); see 5 U.S.C. 552 (Freedom of Information Act). 

7

 E.g., Investigation of Terms and Conditions of Public Utility Market-Based Rate 

Authorizations, 97 FERC ¶ 61,220 (2001). 
Docket No. RM08-8-000 - 4 - 

staff may close an investigation after concluding that no violation occurred, or the 

investigation may be closed for other reasons without sanctions being imposed. In other 

cases, the investigation may result in a settlement including payment of a civil penalty. 

There are no parties and no right to intervene in a Part 1b investigation and, as explained 

below, the ex parte and separation of functions rules do not apply. In some cases, staff 

may recommend that the Commission initiate further proceedings. If the Commission 

initiates a proceeding governed by Part 385, such as an order to show cause, an 

investigator may be assigned to litigate the matter, which brings Rules 2201 and 2202 

into play.8

1. Separation of Functions

5. Rule 2202 prohibits litigation staff from advising in the outcome of “any 

proceeding in which a Commission adjudication is made after hearing.” The 

Commission discussed the scope of this prohibition at length in the Policy Statement, 

specifically addressing its application in the context of investigations. The Commission 

noted that it has generally interpreted Rule 2202 as applying where a matter has been “set 

for a trial-type evidentiary hearing.”9

 It did not at that time address the application of 

Rule 2202 to other types of proceedings, such as “paper hearings” in which the 

Commission determines matters based on written submissions. 

 8

 Policy Statement, at P 24-26. 

9

 Id., at P 12. 
Docket No. RM08-8-000 - 5 - 

6. The Commission addressed the application of Rule 2202 to investigations in 

Energy Transfer Partners, L.P., 121 FERC ¶ 61,282 (2007) (ETP).10 In ETP, the 

Commission stated: 

To provide additional due process in all future civil penalty cases under the 

FPA, NGPA, and NGA, at the time the Office of Enforcement investigative 

staff completes its investigation, it will transmit to the Commission a report 

with recommended findings and conclusions of fact and law and the 

Commission will attach the report to a show cause order to respond to the 

recommended findings. The Commission will not make any findings, 

preliminary or otherwise, at least until it has considered the response. In 

addition, at the point Office of Enforcement investigative staff submits a 

report to the Commission, designated Office of Enforcement investigative 

staff will become non-decisional employees for purposes of participating in 

the remainder of that enforcement proceeding, including any hearing or 

other procedures used by the Commission to resolve the proceeding.11

The Commission thus expressed its intention to provide greater due process in 

investigations than is currently required by Rule 2202 by invoking the separation of 

functions prohibitions sooner than would otherwise be the case.12 Otherwise, Rule 2202 

could be interpreted as applying only when and if the Commission ordered a trial-type 

evidentiary hearing. 

7. In this proceeding, we propose to revise Rule 2202 to bring it in line with the 

procedures adopted in ETP, with one alteration. Rule 2202 would specifically state that 

separation of functions restrictions begin to apply once the Commission issues a show 

 10 See also Amaranth Advisors L.L.C., 122 FERC ¶ 61,087 (2008). 

11 ETP, 121 FERC ¶ 61,282, at P 89 (2007) (footnote omitted). 

12 The Commission explained that it was exercising its discretion to extend 

procedural protections beyond the requirements of the regulations. Id. at P 88. 
Docket No. RM08-8-000 - 6 - 

cause order in an investigation under Part 1b of the Commission’s regulations. The ETP

order refers to the submission of staff’s report, rather than a subsequent show cause order, 

as the “start time” for application of the separation of functions. Upon further 

consideration, however, we believe that the initiation of a proceeding under Part 385 

would be a more practical triggering event. In the context of a Part 1b investigation, it is 

the issuance of a show cause order or the initiation of a civil action that commences a 

proceeding, making it the most logical and clearly delineated event to begin application 

of the rules limiting contacts with Commissioners and decisional staff. This approach is 

similar to that employed by other agencies.13 It also provides a clear demarcation point, 

which should be helpful to both Commission staff and outside parties as they endeavor to 

remain in compliance with the rules. 

8. Once a proceeding governed by Part 385 or a civil action is initiated, the 

Commission will designate which of the employees within the Office of Enforcement 

will be considered decisional for purposes of the relevant proceeding. All other Office of 

Enforcement employees will be non-decisional. If employees from other Commission 

offices are participating as part of the investigative staff after the proceeding governed by 

Part 385 is initiated, those employees will be designated as non-decisional at this time. 

 13 For example, the Securities and Exchange Commission’s rules on contacts 

between litigants and decisional staff begin to apply at the time a proceeding is 

commenced. Depending on the type of proceeding, initiation of the proceeding generally 

occurs through various types of filings or through issuance of an order commencing 

proceedings. 17 CFR 200.111(c) (2008). The Federal Trade Commission follows the 

same approach, 16 CFR 4.7(e) (2008), and specifically excludes investigations that have 

not reached the adjudicative stage, 16 CFR 4.7(f). 
Docket No. RM08-8-000 - 7 - 

The restrictions will continue to apply regardless of whether the Commission sets the 

matter for trial-type evidentiary hearing or some other procedure, such as a paper hearing. 

The Commission invites comment on this proposal. 

2. Off-the-Record Communications

9. The Commission’s rule governing off-the-record, or ex parte, communications, 

Rule 2201,14 is similar in purpose, scope and operation to Rule 2202. Rule 2201 

regulates contacts between persons outside the Commission and the Commission’s 

decisional employees, while Rule 2202 regulates contacts between decisional and nondecisional employees.15 With respect to scope, Rule 2201 applies to 

any proceeding before the Commission to which there is a right to intervene 

and in which an intervenor disputes any material issues, any proceeding 

initiated pursuant to rule 206 by the filing of a complaint with the 

Commission, or any proceeding initiated by the Commission on its own 

motion or in response to a filing.16

The rule explicitly excludes rulemakings, investigations under Part 1b, proceedings 

without a party and proceedings in which no party disputes a material issue.17 As a 

result, the restrictions on ex parte contacts do not apply while a Part 1b investigation is 

underway. They come into play only when the Commission initiates a proceeding. 

 14 Rule 2201 of the Commission’s Rules of Practice and Procedure, 18 CFR 

385.2201 (2008). 

15 See Policy Statement, 101 FERC ¶ 61,340, at P 7. 

16 Rule 2201(c)(1)(i), 18 CFR 385.2201(c)(1)(i). 

17 Rule 2201(c)(1)(ii), 18 CFR 385.2201(c)(1)(ii). 
Docket No. RM08-8-000 - 8 - 

10. The Commission understands that the application of Rule 2201 to investigations 

has been the source of some uncertainty within the regulated community. For example, 

in connection with a Conference on Enforcement Policy held on November 16, 2007, the 

National Rural Electric Cooperative Association (NRECA) asked the Commission to 

clarify several points: 

• That a Part 1b investigation is not a “proceeding” to which the ex parte rules 

apply unless and until it is set for hearing. 

• That communications between persons outside the Commission and 

Commissioners or decisional staff during investigations are not limited to 

situations covered in 18 CFR § 1b.19, which allows investigative personnel to 

invite the subject of a Part 1b investigation to make a submission to the 

Commission in response to an expected recommendation that the Commission 

initiate civil action. 

• That the subject of a Part 1b investigation would not be acting inappropriately 

by contacting a Commissioner where the subject thought it was being treated 

unfairly or had a question that only the Commission could address. 

11. As noted above, a Part 1b investigation is expressly excluded from the coverage of 

Rule 2201. Consequently, the subject of such an investigation could, without acting 

contrary to Rule 2201, contact a Commissioner while an investigation was pending but 

before the Commission initiated a proceeding based on the investigative staff’s report. 

Concurrently with the issuance of this notice of proposed rulemaking, however, we are 
Docket No. RM08-8-000 - 9 - 

announcing18 a policy to govern contacts by persons outside the Commission with 

Commissioners and their staffs. In the Revised Policy Statement on Enforcement, we 

institute a policy under which the subject of a Part 1b investigation may not communicate 

with Commissioners or their personal staffs about the investigation in person or by 

telephone. Instead, such communications must be written.19 The subject may still speak 

to decisional staff other than Commissioners and their personal staffs about an 

investigation, and may speak to Commissioners and their personal staffs about subjects 

other than the investigation as otherwise permitted by the Commission’s regulations. If 

and when the Commission issues a show cause order instituting enforcement 

proceedings, off-the-record communications of any sort would be prohibited by Rule 

2201. To summarize, we are not proposing to revise Rule 2201 to prohibit off-the-record 

communications concerning Part 1b investigations between persons outside the 

Commission and Commissioners or decisional employees. We are, however, establishing 

a policy under which Commissioners and their personal staffs will accept only written 

communications during the pendency of such investigations. 

12. With respect to NRECA’s remaining question on contacting the Commission, 

section 1b.1920 is not the sole avenue open to the subject of an investigation. 

Furthermore, the answer to this question remains the same in light of the final rule we are 

 18 Revised Policy on Enforcement, Docket No. PL08-3-000. 

19 See 18 CFR 1b.18 (2008). 

20 18 CFR 1b.19 (2008). 
Docket No. RM08-8-000 - 10 - 

issuing today to clarify section 1b.19.21 Under both current practice and the revised 

section 1b.19 that we announce today, Office of Enforcement staff will notify the subject 

of an investigation, except in extraordinary cases,22 of its intention to recommend that the 

Commission initiate enforcement proceedings. The revised section 1b.19 provides that, 

where staff gives such notification, the subject may submit a response within 30 days. 

Nothing in the former or revised version of this provision prohibits other contacts 

between the subject of an investigation and the Commissioners or decisional employees, 

nor does it act to override the explicit exclusion of Part 1b investigations from Rule 2201. 

Communications during a Part 1b investigation would, however, be subject to the policy 

we are announcing today, as explained above and set forth in the Revised Policy on 

Enforcement. 

13. In view of the revision that this proposed rule would make to the separation of 

functions provision, there would be an inconsistency between Rules 2201 and 2202 in the 

context of a Part 1b investigation. The proposed change to Rule 2202 would provide that 

the separation of functions restrictions apply when the Commission initiates a proceeding 

under Part 385 through an order to show cause. This proposed rulemaking would include 

a parallel change to Rule 2201 to ensure similar treatment of investigative staff and 

 21 Submissions to the Commission upon Staff Intention to Seek and Order to Show 

Cause, Docket No. RM08-10-000. 

22 An example of such an extraordinary circumstance would be the need to seek an 

injunction to prevent immediate and irreparable harm. 
Docket No. RM08-8-000 - 11 - 

respondents to a proceeding. The Commission seeks comment on this proposed revision 

to Rule 2201. 

B. Intervention

14. The Commission in ETP also addressed the question of intervention in 

enforcement proceedings arising from Part 1b investigations. Without categorically 

stating that intervention in an enforcement proceeding is impermissible, the Commission 

stated that, “[a]s a general proposition,” intervention should not be allowed. An 

enforcement proceeding necessarily focuses on the conduct and culpability of the subject 

party and does not directly implicate the rights of third parties in the same manner as, for 

example, a rate proceeding. Intervention by third parties thus could delay or complicate 

an enforcement proceeding and sidetrack it from its purpose. The Commission did note, 

however, that intervention might be appropriate once the enforcement proceeding had 

reached the stage of determining a sanction. This might, for instance, allow third parties 

to participate in determinations that might directly affect them, such as the allocation of 

disgorged profits.23

15. The Commission’s rules currently provide that intervention is not appropriate in 

Part 1b investigations. Part 1b specifically states, “There are no parties, as that term is 

used in adjudicative proceedings, in an investigation under this part and no person may 

 23 ETP, 121 FERC ¶ 61,282, at P 19 & n.28; see Williams Gas Pipelines Central, 

Inc., 94 FERC ¶ 61,285 (2001) (allowing intervention in enforcement proceeding where 

state public service commission sought to clarify impact of settlement on state interests). 
Docket No. RM08-8-000 - 12 - 

intervene or participate as a matter of right in any investigation under this part.”24 This 

provision, however, does not specifically refer to enforcement proceedings arising out of 

a Part 1b investigation and does not distinguish between such proceedings and the 

investigations themselves. Because Rule 214,25 which governs interventions, makes no 

specific reference to proceedings arising from Part 1b investigations, the current rules 

may be read to allow intervention in such proceedings on the same basis as any other 

Commission adjudication. The more sensible view is that, once an enforcement 

proceeding is established, intervention should not be available except under limited 

circumstances. 

16. The Commission proposes to revise Rule 214 to state specifically that intervention 

is not permitted as a matter of right in enforcement proceedings arising from Part 1b 

investigations. This would leave open the possibility that intervention in an enforcement 

proceeding might be appropriate in some circumstances, such as where a third party 

wished to determine the impact of a sanction or other resolution upon its own interests. 

The Commission seeks comment on this proposal. 

17. It should be noted that different considerations may govern intervention issues in 

proceedings arising from Part 1b investigations. The Commission has, for example, been 

 24 18 CFR 1b.11 (2008). 

25 Rule 214 of the Commission’s Rules of Practice and Procedure, 18 CFR 

385.214 (2008). 
Docket No. RM08-8-000 - 13 - 

less reluctant to permit intervention in proceedings involving reliability penalties.26 

Another situation that differs from the “classic” Part 1b investigation can arise where an 

entity files a complaint. The Commission may conduct a complaint proceeding while at 

the same time ordering a Part 1b investigation. In such situations, the Commission has 

allowed intervention more readily in the complaint proceeding, although intervention 

would not be proper in the Part 1b investigation.27 This proposed revision is not intended 

to restrict the Commission’s ability to determine the appropriateness of intervention in 

individual cases. 

III. Information Collection Statement

18. Office of Management and Budget (OMB) regulations require OMB to approve 

certain information collection requirements imposed by agency rule.28 This proposed 

rulemaking does not contain any information collection requirements and compliance 

with the OMB regulations is thus not required. 

IV. Environmental Analysis

19. The Commission is required to prepare an Environmental Assessment or an 

Environmental Impact Statement for any action that may have a significant adverse effect 

 26 See, e.g., Rules Concerning Certification of the Electric Reliability 

Organization; and Procedures for the Establishment, Approval, and Enforcement of 

Electric Reliability Standards, Order No. 672, FERC Stats. & Regs. ¶ 31,204, at P 509, 

order on reh’g, Order No. 672-A, FERC Stats. & Regs. ¶ 31,212 (2006). 

27 E.g., New York Independent System Operator, Inc., 120 FERC ¶ 61,024 (2007). 

28 5 CFR 1320.12 (2008). 
Docket No. RM08-8-000 - 14 - 

on the human environment.29 Issuance of the revisions proposed in this Notice of 

Proposed Rulemaking will not represent a major federal action having a significant 

adverse effect on the quality of the human environment under the Commission’s 

regulations implementing the National Environmental Policy Act of 1969. Part 380 of 

the Commission’s regulations lists exemptions to the requirement to draft an 

Environmental Analysis or an Environmental Impact Statement. Included is an 

exemption for procedural, ministerial or internal administrative actions.30 This proposed 

rulemaking is exempt under that provision. 

V. Regulatory Flexibility Act Certification

20. The Regulatory Flexibility Act of 1980 (RFA)31 generally requires a description 

and analysis of final rules that will have significant economic impact on a substantial 

number of small entities. This proposed rulemaking concerns procedural matters and is 

primarily intended to clarify existing regulations. The Commission certifies that it will 

not have a significant economic impact upon participants in Commission proceedings. 

An analysis under the RFA is not required. 

 29 Order No. 486, Regulations Implementing the National Environmental Policy 

Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. Preambles 1986-1990 ¶ 30,783 

(1987). 

30 18 CFR 380.4(1) and (5) (2008). 

31 5 U.S.C. 601-612. 
Docket No. RM08-8-000 - 15 - 

VI. Comment Procedures

21. The Commission invites interested persons to submit comments on the matters and 

issues proposed in this notice to be adopted, including any related matters or alternative 

proposals that commenters may wish to discuss. Comments are due [60 days from 

publication in the FEDERAL REGISTER]. Comments must refer to Docket No. RM08-

8-000, and must include the commenter's name, the organization they represent, if 

applicable, and their address in their comments. 

22. The Commission encourages comments to be filed electronically via the eFiling 

link on the Commission's web site at http://www.ferc.gov. The Commission accepts 

most standard word processing formats. Documents created electronically using word 

processing software should be filed in native applications or print-to-PDF format and not 

in a scanned format. Commenters filing electronically do not need to make a paper 

filing. 

23. Commenters that are not able to file comments electronically must send an 

original and 14 copies of their comments to: Federal Energy Regulatory Commission, 

Secretary of the Commission, 888 First Street N.E., Washington, DC, 20426. 

24. All comments will be placed in the Commission's public files and may be viewed, 

printed, or downloaded remotely as described in the Document Availability section 

below. Commenters on this proposal are not required to serve copies of their comments 

on other commenters. 
Docket No. RM08-8-000 - 16 - 

VII. Document Availability

25. In addition to publishing the full text of this document in the Federal Register, the 

Commission provides all interested persons an opportunity to view and/or print the 

contents of this document via the Internet through FERC's Home Page 

(http://www.ferc.gov) and in FERC's Public Reference Room during normal business 

hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, N.E., Room 2A, 

Washington D.C. 20426. 

26. From FERC's Home Page on the Internet, this information is available on 

eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft 

Word format for viewing, printing, and/or downloading. To access this document in 

eLibrary, type the docket number excluding the last three digits of this document in the 

docket number field. 

27. User assistance is available for eLibrary and the FERC’s website during normal 

business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) 

or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-

8371, TTY (202)502-8659. E-mail the Public Reference Room at 

public.referenceroom@ferc.gov. 
Docket No. RM08-8-000 - 17 - 

List of subjects in 18 CFR Part 385

18 CFR Part 385

Administrative practice and procedure, Electric utilities, Penalties, Pipelines, Reporting 

and recordkeeping requirements. 

By direction of the Commission. 

( S E A L ) 

Kimberly D. Bose, 

Secretary. 
Docket No. RM08-8-000 - 18 - 

 In consideration of the foregoing, the Commission proposes to amend Part 385, 

Chapter I, Title 18, Code of Federal Regulations, as follows. 

PART 385—RULES OF PRACTICE AND PROCEDURE

1. The authority citation for Part 385 continues to read as follows: 

Authority: 5 U.S.C. §§ 551–557; 15 U.S.C. §§ 717–717z, 3301–3432; 16 

U.S.C. §§ 791a–825v, 2601–2645; 28 U.S.C. § 2461; 31 U.S.C. §§ 3701, 9701; 42 

U.S.C. §§ 7101–7352, 16441, 16451-16463; 49 U.S.C. § 60502; 49 App. U.S.C. §§ 1–85 

(1988). 

2. Amend section 385.214 by adding new paragraph (a)(4) to read as follows: 

§ 385.214 Intervention (Rule 214).

(a) * * * 

 (4) No person, including entities listed in paragraphs (a)(1) and (a)(2) of this 

section, may intervene as of right in a proceeding arising from an investigation pursuant 

to Part 1b of this chapter. 

3. Amend section 385.2201 by revising paragraph (c)(1) to read as follows: 

§ 385.2201 Rules governing off-the-record communications (Rule 2201).

* * * * * 

 (c) * * * 

 (1) Contested on-the-record proceeding means 

 (i) Except as provided in paragraph (c)(1)(ii), any proceeding before the 

Commission to which there is a right to intervene and in which an intervenor disputes any 

material issue, any proceeding initiated pursuant to rule 206 by the filing of a complaint 
Docket No. RM08-8-000 - 19 - 

with the Commission, any proceeding initiated by the Commission on its own motion or 

in response to a filing, or any proceeding arising from an investigation under part 1b of 

this chapter beginning from the time the Commission initiates a proceeding governed by 

part 385 of this chapter. 

(ii) The term does not include notice-and-comment rulemakings under 5 U.S.C. 

553, investigations under part 1b of this chapter, proceedings not having a party or 

parties, or any proceeding in which no party disputes any material issue. 

* * * * * 

4. Amend section 385.2202 by revising it to read as follows: 

§ 385.2202 Separation of functions (Rule 2202).

In any proceeding in which a Commission adjudication is made after hearing, or in 

any proceeding arising from an investigation under part 1b of this chapter beginning from 

the time the Commission initiates a proceeding governed by part 385 of this chapter, no 

officer, employee, or agent assigned to work upon the proceeding or to assist in the trial 

thereof, in that or any factually related proceeding, shall participate or advise as to the 

findings, conclusion or decision, except as a witness or counsel in public proceedings.