15852 Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Rules and Regulations

§ 52.770 Identification of plan.

* * * * *

(c) * * *

(112) On June 26, 1995, Indiana

submitted an agreed order with Keil

Chemical Division, Ferro Corporation

(Keil Chemical) requiring volatile

organic compound emission control at

Keil Chemical’s Pyro-Chek

manufacturing process, located in

Hammond, Lake County, Indiana.

(i) Incorporation by reference. Agreed

Order of the Indiana Department of

Environmental Management, Cause No.

A–2250, adopted and effective, July 29,

1994.

3. Section 52.777 is amended by

adding paragraphs (k) and (l) to read as

follows:

§ 52.777 Control strategy: Photochemical

oxidants (hydrocarbon).

* * * * *

(k) On June 26, 1995, Indiana

submitted a 15 percent rate-of-progress

plan for the Lake and Porter Counties

portion of the Chicago-Gary-Lake

County ozone nonattainment area. This

plan satisfies the counties’ requirements

under section 182(b)(1) of the Clean Air

Act, as amended in 1990.

(l) On June 26, 1995, Indiana

submitted a 3 percent contingency plan

for the Lake and Porter Counties portion

of the Chicago-Gary-Lake County ozone

nonattainment area. This plan satisfies

the counties’ requirements under

section 172(c)(9) and 182(c)(9) of the

Clean Air Act, as amended in 1990.

[FR Doc. 97–8383 Filed 4–2–97; 8:45 am]

BILLING CODE 6717–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 0 and 1

[GC Docket No. 95–21; FCC 97–92]

Ex Parte Presentations in Commission

Proceedings

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission amends its

regulations concerning ex parte

presentations in Commission

proceedings. The new rules simplify the

determination in particular proceedings

of whether ex parte presentations are

permissible and whether they must be

disclosed. The proposed rules also

modify the Commission’s ‘‘Sunshine

period prohibition.’’ Certain other minor

amendments of the rules are made. The

intended effect of the amendments is to

make the rules simpler and easier to

comply with, to enhance the fairness of

the Commission’s processes, and to

facilitate the public’s ability to

communicate with the Commission.

EFFECTIVE DATE: June 2, 1997.

FOR FURTHER INFORMATION CONTACT:

David S. Senzel, Office of General

Counsel (202) 418–1760.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Report

and Order, GC Docket No. 95–21,

adopted on March 13, 1997, and

released March 19, 1997. The full text

of the report and order is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room 239), 1919 M Street NW.,

Washington D.C. The complete text may

also be purchased from the

Commission’s copy contractor,

International Transcription Service,

Inc., Suite 140, 2100 M Street NW.,

Washington, D.C. 20037, telephone

(202) 857–3800.

Summary of Report and Order

1. In this report and order, the

Commission revises its rules governing

ex parte presentations in Commission

proceedings. The revision is intended to

make the rules simpler and clearer, and

thus more effective in ensuring fairness

in Commission proceedings. The

Commission stresses that the ex parte

rules are important and that full

compliance is expected.

2. The Commission revises its system

for specifying whether proceedings are

‘‘restricted,’’ ‘‘permit-but-disclose’’ or

‘‘exempt,’’ which determine how ex

parte presentations are treated in that

proceeding subject to specific

exceptions. (An ex parte presentation is

a communication to a Commission

decisionmaker concerning the outcome

or merits of a proceeding which—if

written—is not served on all parties

and—if oral—is made without notice

and the opportunity for all parties to be

present.) In restricted proceedings, ex

parte presentations are prohibited. In

permit-but-disclose proceedings, ex

parte presentations are permitted but

must be disclosed on the record of the

proceeding. In exempt proceedings, ex

parte presentations may be made

without limitation. The revised rules

adopt a simplified system for

determining the status of a proceeding.

3. Under this system, all proceedings

not specifically designated as exempt or

permit-but-disclose (either by the rules

or by order or public notice in an

individual proceeding) are restricted

from the point that someone becomes a

‘‘party’’ to the proceeding. Thus, the

extent of the restriction is governed by

the definition of ‘‘party.’’ If there is only

a single ‘‘party’’ (as defined in the ex

parte rules) in a restricted proceeding,

the Commission and the party may

freely make presentations to each other

because there is no other party to be

served or with a right to be present. If

there are additional parties, then those

parties must be served or be given an

opportunity to be present. Under the

rules, parties include: (1) any person

who files an application, waiver request,

petition, motion, request for a

declaratory ruling, or other filing

seeking affirmative relief (including a

Freedom of Information Act request),

and any person who files a written

submission referencing and regarding

such pending filing which is served on

the filer, or, in the case of an

application, any person filing a

mutually exclusive application; (2) any

person who files a complaint which is

served on the subject of the complaint

or which is a formal complaint under 47

U.S.C. § 208 and § 1.721 of our rules,

and the person who is the subject of

such a complaint; (3) any person who

files a petition to revoke a license or

other authorization or a petition for an

order to show cause and the licensee or

entity who is the subject of the petition;

(4) the subject of an order to show

cause, hearing designation order, notice

of apparent liability, or similar notice or

order, or petition for such notice or

order, or any other person who has

otherwise been given formal party status

in a proceeding; and (5) in a rulemaking

proceeding (other than a broadcast

allotment proceeding) or a proceeding

before a Joint Board or before the

Commission to consider the

recommendation of a Joint Board, the

general public. To be deemed a party, a

person must make the relevant filing

with the Secretary, the relevant Bureau

or Office, or the Commission as a whole.

Written submissions made only to the

Chairman or an individual

Commissioner will not confer party

status since such filings do not

demonstrate the requisite intent or

formality for party status.

4. A few matters will continue to be

expressly classified as exempt. These

include (1) notice of inquiry

proceedings, (2) petitions for

rulemaking, (3) tariff proceedings before

they are set for investigation, and (4)

proceedings involving complaints

which are not served on the target of the

complaint, are informal § 208

complaints, or are cable rate complaints

not filed on the standard complaint

form.

5. Other proceedings are classified as

permit-but-disclose (a term replacing

the former term ‘‘nonrestricted). These
Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Rules and Regulations 15853

include: (1) declaratory ruling

proceedings; (2) proceedings under 47

U.S.C. § 214(a) that do not involve

applications under Title III of the

Communications Act; and (3) Freedom

of Information Act requests. As under

current practice, however, the

Commission may decide on a case-bycase basis that because a petition for

declaratory relief predominately

concerns the rights of particular parties,

it should be treated as restricted, and

may so modify treatment of the

proceeding. Applications for a Cable

Landing Act license are similar to § 214

applications (and often filed in

conjunction therewith), and the new

rules also expressly subject them to

permit-but-disclose procedures, again

provided that no Title III applications

are involved. Permit-but-disclose

proceedings also include: (1) tariff

investigations which have been set for

investigation under 47 U.S.C. § 204; (2)

proceedings conducted pursuant to 47

U.S.C. § 220(b) for prescription of

common carrier depreciation rates

(upon release of a public notice of

specific proposed depreciation rates);

and (3) proceedings to prescribe a rate

of return under 47 U.S.C. § 205.

Additionally, the Commission will

continue to treat proceedings before a

Joint Board or before the Commission

involving a recommendation from a

Joint Board as permit-but-disclose.

Proceedings involving cable rate

complaints under 47 CFR § 543(c) and

filed on the required form (FCC form

329) will also be treated as permit-butdisclose.

6. The Commission also makes an

exception to its Sunshine period

prohibition. Pursuant to the rules, once

a proceeding has been placed on a

sunshine notice, no presentations,

whether ex parte or not, are permitted

until the Commission has released the

full text of the order in the proceeding

noticed in the Sunshine notice, deleted

the item from the sunshine agenda, or

returned the item for further staff

consideration. The prohibition is

intended to give the Commission ‘‘a

period of repose’’ in which to make

decisions. The Commission exempts

from the prohibition the discussion of

recent Commission actions at widelyattended meetings or symposia.

7. The Commission also modifies the

ex parte rules in certain respects. It

gives additional authority to the Office

of General Counsel to evaluate alleged

ex parte violations. It increases to at

least two a week the frequency of

publishing lists of ex parte

presentations. It also clarifies several

aspects of the rules and codifies some

existing interpretations and policies.

Regulatory Flexibility Certification

8. The NPRM (60 FR 8995 (February

16, 1995)) incorporated an Initial

Regulatory Flexibility Analysis (IFRA)

of the proposed rules pursuant to 5

U.S.C. § 605. No comments were

received in direct response to the IFRA.

Section 604 of the Regulatory Flexibility

Act, as amended, requires a final

regulatory flexibility analysis in a notice

and comment rulemaking proceeding

unless the Commission certifies 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). The Commission

believes that the rules it adopted will

not have a significant economic impact

on a substantial number of small

entities.

9. As noted above, the Commission’s

purpose in revising the ex parte rules is

to simplify and clarify them. It finds

that the modifications do not impose

any additional compliance burden on

persons dealing with the Commission

including small entities. It also finds

that the revised rules clarify the

situations in which ex parte

presentations are permissible, when

they must be reported on the record,

and when they are prohibited, without

significantly changing the current rules

substantively. The Commission believes

that the revised rules do not otherwise

affect the rights of persons to participate

as parties in Commission proceedings. It

further finds that there is no reason to

believe that operation of the revised

rules will impose any costs on parties in

particular proceedings subject to those

rules, beyond those costs incurred

under our former rules. Rather, the

Commission anticipates that the

revisions will serve to make the rules

easier to comply with and more

effective for small entities as well as

others. By increasing the frequency with

which the Commission issues reports of

ex parte presentations, the amended

rules will make it easier for small

entities and others to determine when

ex parte presentations have occurred.

10. Accordingly, the Commission

certifies, pursuant to Section 605(b) of

the Regulatory Flexibility Act, as

amended by the Contract with America

Advancement Act of 1996 (CWAAA),

Public Law No. 104–121, 110 Stat. 847

(1996), that the rules will not have a

significant economic impact on a

substantial number of small entities. 5

U.S.C. § 605(b).

List of Subjects in 47 CFR Parts 0

and 1

Administrative practice and

procedure, Radio, Telecommunications,

Television.

Federal Communications Commission

William F. Caton,

Acting Secretary.

Rule Changes

Parts 0 and 1 of Title 47 of the Code

of Federal Regulations are amended 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 0.11(a)(9) is revised to read

as follows:

§ 0.11 Functions of the Office.

(a) * * *

(9) In consultation with the General

Counsel, approve waivers of the

applicability of the conflict of interest

statutes pursuant to 18 U.S.C. 205 and

208, or initiate necessary actions where

other resolutions of conflicts of interest

are called for.

* * * * *

3. Section 0.41(o) is added to read as

follows:

§ 0.41 Functions of the Office.

* * * * *

(o) To serve as the principal operating

office on ex parte matters involving

restricted proceedings. To review and

dispose of all ex parte communications

received from the public and others.

4. Section 0.251(h) is added to read as

follows:

§ 0.251 Authority delegated.

* * * * *

(h) The General Counsel is delegated

authority to issue rulings on whether

violations of the ex parte rules have

occurred.

PART 1—PRACTICE AND

PROCEDURE

5. The authority citation for Part 1

continues to read as follows:

Authority: 47 U.S.C. 151, 154, 303, and

309(j) unless otherwise noted.

6. Section 1.1200 is revised to read as

follows:

§ 1.1200 Introduction.

(a) Purpose. To ensure the fairness

and integrity of its decision-making, the

Commission has prescribed rules to
15854 Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Rules and Regulations

regulate ex parte presentations in

Commission proceedings. These rules

specify ‘‘exempt’’ proceedings, in which

ex parte presentations may be made

freely (§ 1.1204(b)), ‘‘permit-butdisclose’’ proceedings, in which ex

parte presentations to Commission

decision-making personnel are

permissible but subject to certain

disclosure requirements (§ 1.1206), and

‘‘restricted’’ proceedings in which ex

parte presentations to and from

Commission decision-making personnel

are generally prohibited (§ 1.1208). In all

proceedings, a certain period (’’the

Sunshine Agenda period’’) is designated

in which all presentations to

Commission decision-making personnel

are prohibited (§ 1.1203). The

limitations on ex parte presentations

described in this section are subject to

certain general exceptions set forth in

§ 1.1204(a). Where the public interest so

requires in a particular proceeding, the

Commission and its staff retain the

discretion to modify the applicable ex

parte rules by order, letter, or public

notice. Joint Boards may modify the ex

parte rules in proceedings before them.

(b) Inquiries concerning the propriety

of ex parte presentations should be

directed to the Office of General

Counsel.

7. Section 1.1202 is revised to read as

follows:

§ 1.1202 Definitions.

For the purposes of this subpart, the

following definitions apply:

(a) Presentation. A communication

directed to the merits or outcome of a

proceeding, including any attachments

to a written communication or

documents shown in connection with

an oral presentation directed to the

merits or outcome of a proceeding.

Excluded from this term are

communications which are

inadvertently or casually made,

inquiries concerning compliance with

procedural requirements if the

procedural matter is not an area of

controversy in the proceeding,

statements made by decisionmakers that

are limited to providing publicly

available information about pending

proceedings, and inquiries relating

solely to the status of a proceeding,

including inquiries as to the

approximate time that action in a

proceeding may be taken. However, a

status inquiry which states or implies a

view as to the merits or outcome of the

proceeding or a preference for a

particular party, which states why

timing is important to a particular party

or indicates a view as to the date by

which a proceeding should be resolved,

or which otherwise is intended to

address the merits or outcome or to

influence the timing of a proceeding is

a presentation.

Note to paragraph (a): A communication

expressing concern about administrative

delay or expressing concern that a

proceeding be resolved expeditiously will be

treated as a permissible status inquiry so long

as no reason is given as to why the

proceeding should be expedited other than

the need to resolve administrative delay, no

view is expressed as to the merits or outcome

of the proceeding, and no view is expressed

as to a date by which the proceeding should

be resolved. A presentation by a party in a

restricted proceeding requesting action by a

particular date or giving reasons that a

proceeding should be expedited other than

the need to avoid administrative delay (and

responsive presentations by other parties)

may be made on an ex parte basis subject to

the provisions of § 1.1204(a)(11).

(b) Ex parte presentation. Any

presentation which:

(1) If written, is not served on the

parties to the proceeding; or

(2) If oral, is made without advance

notice to the parties and without

opportunity for them to be present.

Note to paragraph (b): Written

communications include electronic

submissions transmitted in the form of texts,

such as by Internet electronic mail.

(c) Decision-making personnel. Any

member, officer, or employee of the

Commission, or, in the case of a Joint

Board, its members or their staffs, who

is or may reasonably be expected to be

involved in formulating a decision, rule,

or order in a proceeding. Any person

who has been made a party to a

proceeding or who otherwise has been

excluded from the decisional process

shall not be treated as a decision-maker

with respect to that proceeding. Thus,

any person designated as part of a

separate trial staff shall not be

considered a decision-making person in

the designated proceeding. Unseparated

Bureau or Office staff shall be

considered decision-making personnel

with respect to decisions, rules, and

orders in which their Bureau or Office

participates in enacting, preparing, or

reviewing.

(d) Party. Unless otherwise ordered by

the Commission, the following persons

are parties:

(1) Any person who files an

application, waiver request, petition,

motion, request for a declaratory ruling,

or other filing seeking affirmative relief

(including a Freedom of Information Act

request), and any person (other than an

individual viewer or listener filing

comments regarding a pending

broadcast application) filing a written

submission referencing and regarding

such pending filing which is served on

the filer, or, in the case of an

application, any person filing a

mutually exclusive application;

Note 1 to paragraph (d): Persons who file

mutually exclusive applications for services

that the Commission has announced will be

subject to competitive bidding or lotteries

shall not be deemed parties with respect to

each others’ applications merely because

their applications are mutually exclusive.

Therefore, such applicants may make

presentations to the Commission about their

own applications provided that no one has

become a party with respect to their

application by other means, e.g., by filing a

petition or other opposition against the

applicant or an associated waiver request, if

the petition or opposition has been served on

the applicant.

(2) Any person who files a complaint

which shows that the complainant has

served it on the subject of the complaint

or which is a formal complaint under 47

U.S.C. 208 and § 1.721, and the person

who is the subject of such a complaint

that shows service or is a formal

complaint under 47 U.S.C. 208 and

§ 1.721;

(3) Any person who files a petition to

revoke a license or other authorization

or who files a petition for an order to

show cause and the licensee or other

entity that is the subject of the petition;

(4) The subject of an order to show

cause, hearing designation order, notice

of apparent liability, or similar notice or

order, or petition for such notice or

order;

(5) Any other person who has

otherwise been given formal party status

in a proceeding; and

(6) In an informal rulemaking

proceeding conducted under section

553 of the Administrative Procedure Act

(other than a proceeding for the

allotment of a broadcast channel) or a

proceeding before a Joint Board or

before the Commission to consider the

recommendation of a Joint Board,

members of the general public after the

issuance of a notice of proposed

rulemaking or other order as provided

under § 1.1206(a)(1) or (2).

Note 2 to paragraph (d): To be deemed a

party, a person must make the relevant filing

with the Secretary, the relevant Bureau or

Office, or the Commission as a whole.

Written submissions made only to the

Chairman or individual Commissioners will

not confer party status.

Note 3 to paragraph (d): The fact that a

person is deemed a party for purposes of this

subpart does not constitute a determination

that such person has satisfied any other legal

or procedural requirements, such as the

operative requirements for petitions to deny

or requirements as to timeliness. Nor does it

constitute a determination that such person

has any other procedural rights, such as the

right to intervene in hearing proceedings.

The Commission or the staff may also
Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Rules and Regulations 15855

determine in particular instances that

persons who qualify as ‘‘parties’’ under

§ 1.1202(d) should nevertheless not be

deemed parties for purposes of this subpart.

Note 4 to paragraph (d): Individual

listeners or viewers submitting comments

regarding a pending broadcast application

pursuant to § 1.1204(a)(8) will not become

parties simply by service of the comments.

The Mass Media Bureau may, in its

discretion, make such a commenter a party,

if doing so would be conducive to the

Commission’s consideration of the

application or would otherwise be

appropriate.

(e) Matter designated for hearing. Any

matter that has been designated for

hearing before an administrative law

judge or which is otherwise designated

for hearing in accordance with

procedures in 5 U.S.C. 554.

8. Section 1.1203 is revised to read as

follows:

§ 1.1203 Sunshine period prohibition.

(a) With respect to any Commission

proceeding, all presentations to

decision-makers concerning matters

listed on a Sunshine Agenda, whether

ex parte or not, are prohibited during

the period specified by paragraph (b) of

this section:

(1) The presentation is exempt under

§ 1.1204(a);

(2) The presentation relates to

settlement negotiations and otherwise

complies with any ex parte restrictions

in this subpart;

(3) The presentation occurs in the

course of a widely attended speech or

panel discussion and concerns a

Commission action in an exempt or a

permit-but-disclose proceeding that has

been adopted (not including private

presentations made on the site of a

widely attended speech or panel

discussion); or

(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. If the

presentation is of substantial

significance and clearly intended to

affect the ultimate decision, 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 applies

from the release of a public notice that

a matter has been placed on the

Sunshine Agenda until the Commission:

(1) Releases the text of a decision or

order relating to the matter;

(2) Issues a public notice stating that

the matter has been deleted from the

Sunshine Agenda; or

(3) Issues a public notice stating that

the matter has been returned to the staff

for further consideration, whichever

occurs first.

9. Section 1.1204 is revised to read as

follows:

§ 1.1204 Exempt ex parte presentations

and proceedings.

(a) Exempt ex parte presentations.

The following types of presentations are

exempt from the prohibitions in

restricted proceedings (§ 1.1208), the

disclosure requirements in permit-butdisclose proceedings (§ 1.1206), and the

prohibitions during the Sunshine

Agenda and circulation period

prohibition (§ 1.1203):

(1) The presentation is authorized by

statute or by the Commission’s rules to

be made without service, see, e.g.,

§ 1.333(d), or involves the filing of

required forms;

(2) The presentation is made by or to

the General Counsel and his or her staff

and concerns judicial review of a matter

that has been decided by the

Commission;

(3) The presentation directly relates to

an emergency in which the safety of life

is endangered or substantial loss of

property is threatened, provided that, if

not otherwise submitted for the record,

Commission staff promptly places the

presentation or a summary of the

presentation in the record and discloses

it to other parties as appropriate.

(4) The presentation involves a

military or foreign affairs function of the

United States or classified security

information;

(5) The presentation is 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

provided that, any new factual

information obtained through such a

presentation that is relied on by the

Commission in its decision-making

process will, if not otherwise submitted

for the record, be disclosed by the

Commission no later than at the time of

the release of the Commission’s

decision;

(6) The presentation is to or from the

United States Department of Justice or

Federal Trade Commission and involves

a telecommunications competition

matter in a proceeding which has not

been designated for hearing and in

which the relevant agency is not a party

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;

Note 1 to paragraph (a): Under paragraphs

(a)(5) and (a)(6) of this section, information

will be relied on and disclosure will be made

only after advance coordination with the

agency involved in order to ensure that the

agency involved retains control over the

timing and extent of any disclosure that may

have an impact on that agency’s

jurisdictional responsibilities. If the agency

involved does not wish such information to

be disclosed, the Commission will not

disclose it and will disregard it in its

decision-making process, unless it fits within

another exemption not requiring disclosure

(e.g., foreign affairs). The fact that an agency’s

views are disclosed under paragraphs (a)(5)

and (a)(6) does not preclude further

discussions pursuant to, and in accordance

with, the exemption.

(7) The presentation is between

Commission staff and an advisory

coordinating committee member with

respect to the coordination of frequency

assignments to stations in the private

land mobile services or fixed services as

authorized by 47 U.S.C. 332;

(8) The presentation is a written

presentation made by a listener or

viewer of a broadcast station who is not

a party under § 1.1202(d)(1), and the

presentation relates to a pending

application that has not been designated

for hearing for a new or modified

broadcast station or license, for renewal

of a broadcast station license or for

assignment or transfer of control of a

broadcast permit or license;

(9) Confidentiality is necessary to

protect persons making ex parte

presentations from possible reprisals; or

(10) The presentation is 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, subject to the

following limitations:

(i) This exemption does not apply to

restricted proceedings designated for

hearing;

(ii) In restricted proceedings not

designated for hearing, any new written

information elicited from such request

or a summary of any new oral

information elicited from such request

shall promptly be served by the person

making the presentation on the other

parties to the proceeding. Information

relating to how a proceeding should or

could be settled, as opposed to new

information regarding the merits, shall

not be deemed to be new information

for purposes of this section. The

Commission or its staff may waive the

service requirement if service would be

too burdensome because the parties are
15856 Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Rules and Regulations

numerous or because the materials

relating to such presentation are

voluminous. If the service requirement

is waived, copies of the presentation or

summary shall be placed in the record

of the proceeding and the Commission

or its staff shall issue a public notice

which states that copies of the

presentation or summary are available

for inspection. The Commission or its

staff may determine that service or

public notice would interfere with the

effective conduct of an investigation and

dispense with the service and public

notice requirements;

(iii) If the presentation is made in a

proceeding subject to permit-butdisclose requirements, disclosure must

be made in accordance with the

requirements of § 1.1206(b), provided,

however, that the Commission or its

staff may determine that disclosure

would interfere with the effective

conduct of an investigation and

dispense with the disclosure

requirement. As in paragraph (a)(10)(ii)

of this section, information relating to

how a proceeding should or could be

settled, as opposed to new information

regarding the merits, shall not be

deemed to be new information for

purposes of this section;

Note 2 to paragraph (a): If the Commission

or its staff dispenses with the service or

notice requirement to avoid interference with

an investigation, a determination will be

made in the discretion of the Commission or

its staff as to when and how disclosure

should be made if necessary. See

Amendment of Subpart H, Part I, 2 FCC Rcd

6053, 6054 ¶¶ 10–14 (1987).

(iv) If the presentation is made in a

proceeding subject to the Sunshine

period prohibition, disclosure must be

made in accordance with the

requirements of § 1.1206(b) or by other

adequate means of notice that the

Commission deems appropriate;

(v) In situations where new

information regarding the merits is

disclosed during settlement discussions,

and the Commission or staff intends that

the product of the settlement

discussions will be disclosed to the

other parties or the public for comment

before any action is taken, the

Commission or staff in its discretion

may defer disclosure of such new

information until comment is sought on

the settlement proposal or the

settlement discussions are terminated.

(11) The presentation is an oral

presentation in a restricted proceeding

requesting action by a particular date or

giving reasons that a proceeding should

be expedited other than the need to

avoid administrative delay. A summary

of the presentation shall promptly be

filed in the record and served by the

person making the presentation on the

other parties to the proceeding, who

may respond in support or opposition to

the request for expedition, including by

oral ex parte presentation, subject to the

same service requirement.

(b) Exempt proceedings. Unless

otherwise provided by the Commission

or the staff pursuant to § 1.1200(a), ex

parte presentations to or from

Commission decision-making personnel

are permissible and need not be

disclosed with respect to the following

proceedings, which are referred to as

‘‘exempt’’ proceedings:

(1) A notice of inquiry proceeding;

(2) A petition for rulemaking, except

for a petition requesting the allotment of

a broadcast channel (see also

§ 1.1206(a)(1)), or other request that the

Commission modify its rules, issue a

policy statement or issue an interpretive

rule, or establish a Joint Board;

(3) A tariff proceeding (including

directly associated waiver requests or

requests for special permission) prior to

it being set for investigation (see also

§ 1.1206(a)(4));

(4) A proceeding relating to

prescription of common carrier

depreciation rates under section 220(b)

of the Communications Act prior to

release of a public notice of specific

proposed depreciation rates (see also

§ 1.1206(a)(9));

(5) An informal complaint proceeding

under 47 U.S.C. 208 and § 1.717; and

(6) A complaint against a cable

operator regarding its rates that is not

filed on the standard complaint form

required by § 76.951 of this chapter

(FCC Form 329).

10. Section 1.1206 is revised to read

as follows:

§ 1.1206 Permit-but-disclose proceedings.

(a) Unless otherwise provided by the

Commission or the staff pursuant to

§ 1.1200(a), until the proceeding is no

longer subject to administrative

reconsideration or review or to judicial

review, ex parte presentations (other

than ex parte presentations exempt

under § 1.1204(a)) to or from

Commission decision-making personnel

are permissible in the following

proceedings, which are referred to as

permit-but-disclose proceedings,

provided that ex parte presentations to

Commission decision-making personnel

are disclosed pursuant to paragraph (b)

of this section:

(1) An informal rulemaking

proceeding conducted under section

553 of the Administrative Procedure Act

other than a proceeding for the

allotment of a broadcast channel, upon

release of a Notice of Proposed

Rulemaking (see also § 1.1204(b)(2));

(2) A proceeding involving a rule

change, policy statement or interpretive

rule adopted without a Notice of

Proposed Rule Making upon release of

the order adopting the rule change,

policy statement or interpretive rule;

(3) A declaratory ruling proceeding;

(4) A tariff proceeding which has been

set for investigation under section 204

or 205 of the Communications Act

(including directly associated waiver

requests or requests for special

permission) (see also § 1.1204(b)(4));

(5) Unless designated for hearing, a

proceeding under section 214(a) of the

Communications Act that does not also

involve applications under Title III of

the Communications Act (see also

§ 1.1208);

(6) Unless designated for hearing, a

proceeding involving an application for

a Cable Landing Act license that does

not also involve applications under

Title III of the Communications Act (see

also § 1.1208);

(7) A proceeding involving a request

for information filed pursuant to the

Freedom of Information Act;

Note 1 to paragraph (a): Where the

requested information is the subject of a

request for confidentiality, the person filing

the request for confidentiality shall be

deemed a party.

(8) A proceeding before a Joint Board

or a proceeding before the Commission

involving a recommendation from a

Joint Board;

(9) A proceeding conducted pursuant

to section 220(b) of the Communications

Act for prescription of common carrier

depreciation rates upon release of a

public notice of specific proposed

depreciation rates (see also

§ 1.1204(b)(4));

(10) A proceeding to prescribe a rate

of return for common carriers under

section 205 of the Communications Act;

and

(11) A cable rate complaint

proceeding pursuant to section 623(c) of

the Communications Act where the

complaint is filed on FCC Form 329.

Note 2 to paragraph (a): In a permit-butdisclose proceeding involving only one

‘‘party,’’ as defined in § 1.1202(d) of this

subpart, the party and the Commission may

freely make presentations to each other and

need not comply with the disclosure

requirements of paragraph (b) of this section.

(b) The following disclosure

requirements apply to ex parte

presentations in permit but disclose

proceedings:

(1) Written presentations. A person

who makes a written ex parte

presentation subject to this section

shall, no later than the next business

day after the presentation, submit two
Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Rules and Regulations 15857

copies of the presentation to the

Commission’s secretary under separate

cover for inclusion in the public record.

The presentation (and cover letter) shall

clearly identify the proceeding to which

it relates, including the docket number,

if any, shall indicate that two copies

have been submitted to the Secretary,

and must be labeled as an ex parte

presentation. If the presentation relates

to more than one proceeding, two copies

shall be filed for each proceeding.

(2) Oral presentations. A person who

makes an oral ex parte presentation

subject to this section that presents data

or arguments not already reflected in

that person’s written comments,

memoranda or other filings in that

proceeding shall, no later than the next

business day after the presentation,

submit to the Commission’s Secretary,

with copies to the Commissioners or

Commission employees involved in the

oral presentation, an original and one

copy of a memorandum which

summarizes the new data or arguments.

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. The memorandum (and cover

letter) shall clearly identify the

proceeding to which it relates, including

the docket number, if any, shall indicate

that an original and one copy have been

submitted to the Secretary, and must be

labeled as an ex parte presentation. If

the presentation relates to more than

one proceeding, two copies of the

memorandum (or an original and one

copy) shall be filed for each proceeding.

Note 1 to paragraph (b): 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 tape recording of

the discussion as an alternative to a

memorandum.

(3) Notwithstanding paragraphs (b)(1)

and (b)(2) of this section, in permit-butdisclose proceedings 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 a written

summary of any such oral presentations

and place them in the record in

accordance with paragraph (b)(2) of this

section and place any such written

presentations in the record in

accordance with paragraph (b)(1) of this

section.

(4) Notice of ex parte presentations.

The Commission’s Secretary or, in the

case of non-docketed proceedings, the

relevant Bureau or Office shall place in

the public file or record of the

proceeding written ex parte

presentations and memoranda reflecting

oral ex parte presentations. The

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 permitbut-disclose proceeding. Such public

notices should generally be released at

least twice per week.

Note 2 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.

Note 3 to paragraph (b): As a matter of

convenience, the Secretary may also list on

the referenced public notices materials, even

if not ex parte presentations, that are filed

after the close of the reply comment period

or, if the matter is on reconsideration, the

reconsideration reply comment period.

11. Section 1.1208 is revised 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)) 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).

Note 1 to § 1.1208: In a restricted

proceeding involving only one ‘‘party,’’ as

defined in § 1.1202(d), the party and the

Commission may freely make presentations

to each other because there is no other party

to be served or with a right to have an

opportunity to be present. See § 1.1202(b).

Therefore, to determine whether

presentations are permissible in a restricted

proceeding without service or notice and an

opportunity for other parties to be present the

definition of a ‘‘party’’ should be consulted.

Examples: After the filing of an uncontested

application or waiver request, the applicant

or other filer would be the sole party to the

proceeding. The filer would have no other

party to serve with or give notice of any

presentations to the Commission, and such

presentations would therefore not be ‘‘ex

parte presentations’’ as defined by § 1.1202(b)

and would not be prohibited. On the other

hand, in the example given, because the filer

is a party, a third person who wished to make

a presentation to the Commission concerning

the application or waiver request would have

to serve or notice the filer. Further, once the

proceeding involved additional ‘‘parties’’ as

defined by § 1.1202(d) (e.g., an opponent of

the filer who served the opposition on the

filer), the filer and other parties would have

to serve or notice all other parties.

Note 2 to § 1.1208: Consistent with

§ 1.1200(a), the Commission or its staff may

determine that a restricted proceeding not

designated for hearing involves primarily

issues of broadly applicable policy rather

than the rights and responsibilities of specific

parties and specify that the proceeding will

be conducted in accordance with the

provisions of § 1.1206 governing permit-butdisclose proceedings.

12. Section 1.1210 is revised to read

as follows:

§ 1.1210 Prohibition on solicitation of

presentations.

No person shall solicit or encourage

others to make any presentation which

he or she is prohibited from making

under the provisions of this subpart.

13. Section 1.1212 is revised to read

as follows:

§ 1.1212 Procedures for handling of

prohibited ex parte presentations.

(a) Commission personnel who

believe that an oral presentation which

is being made to them or is about to be

made to them is prohibited shall

promptly advise the person initiating

the presentation that it is prohibited and

shall terminate the discussion.

(b) Commission personnel who

receive oral ex parte presentations

which they believe are prohibited shall

forward to the Office of General Counsel

a statement containing the following

information:

(1) The name of the proceeding;

(2) The name and address of the

person making the presentation and that

person’s relationship (if any) to the

parties to the proceeding;

(3) The date and time of the

presentation, its duration, and the

circumstances under which it was

made;

(4) A full summary of the substance

of the presentation;

(5) Whether the person making the

presentation persisted in doing so after
15858 Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Rules and Regulations

being advised that the presentation was

prohibited; and

(6) The date and time that the

statement was prepared.

(c) Commission personnel who

receive written ex parte presentations

which they believe are prohibited shall

forward them to the Office of General

Counsel. If the circumstances in which

the presentation was made are not

apparent from the presentation itself, a

statement describing those

circumstances shall be submitted to the

Office of General Counsel with the

presentation.

(d) Prohibited written ex parte

presentations and all documentation

relating to prohibited written and oral

ex parte presentations shall be placed in

a public file which shall be associated

with but not made part of the record of

the proceeding to which the

presentations pertain. Such materials

may be considered in determining the

merits of a restricted proceeding only if

they are made part of the record and the

parties are so informed.

(e) If the General Counsel determines

that an ex parte presentation or

presentation during the Sunshine period

is prohibited by this subpart, he or she

shall notify the parties to the proceeding

that a prohibited presentation has

occurred and shall serve on the parties

copies of the presentation (if written)

and any statements describing the

circumstances of the presentation.

Service by the General Counsel shall not

be deemed to cure any violation of the

rules against prohibited ex parte

presentations.

(f) If the General Counsel determines

that service on the parties would be

unduly burdensome because the parties

to the proceeding are numerous, he or

she may issue a public notice in lieu of

service. The public notice shall state

that a prohibited presentation has been

made and may also state that the

presentation and related materials are

available for public inspection.

(g) The General Counsel shall forward

a copy of any statement describing the

circumstances in which the prohibited

ex parte presentation was made to the

person who made the presentation.

Within ten days thereafter, the person

who made the presentation may file

with the General Counsel a sworn

declaration regarding the presentation

and the circumstances in which it was

made. The General Counsel may serve

copies of the sworn declaration on the

parties to the proceeding.

(h) Where a restricted proceeding

precipitates a substantial amount of

correspondence from the general public,

the procedures in paragraphs (c)

through (g) of this section will not be

followed with respect to such

correspondence. The correspondence

will be placed in a public file and be

made available for public inspection.

14. Section 1.1214 is revised to read

as follows:

§ 1.1214 Disclosure of information

concerning violations of this subpart.

Any party to a proceeding or any

Commission employee who has

substantial reason to believe that any

violation of this subpart has been

solicited, attempted, or committed shall

promptly advise the Office of General

Counsel in writing of all the facts and

circumstances which are known to him

or her.

15. Section 1.1216 is revised 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 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 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.

(b) Commission personnel.

Commission personnel who violate

provisions of this subpart may be

subject to appropriate disciplinary or

other remedial action as provided in

part 19 of this chapter.

(c) Other persons. Such sanctions as

may be appropriate under the

circumstances shall be imposed upon

other persons who violate the

provisions of this subpart.

[FR Doc. 97–8042 Filed 4–2–97; 8:45 am]

BILLING CODE 6712–01–P

47 CFR Part 73

[MM Docket No. 95–167; RM–8699]

Radio Broadcasting Services;

Claremore and Chelsea, OK

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission, at the

request of Michael P. Stephens, reallots

Channel 264A from Claremore to

Chelsea, Oklahoma, as the community’s

first local aural transmission service,

and modifies Station KTFR’s

construction permit to specify Chelsea

as its community of license. See 60 FR

56554, November 9, 1995. Channel

264A can be allotted to Chelsea in

compliance with the Commission’s

minimum distance separation

requirements with a site restriction of

2.0 kilometers (1.2 miles) southwest, at

coordinates 36–31–27 NL and 95–26–55

WL, to avoid a short-spacing to Station

KGLC, Channel 265A, Miami, OK. With

this action, this proceeding is

terminated.

EFFECTIVE DATE: May 12, 1997.

FOR FURTHER INFORMATION CONTACT:

Leslie K. Shapiro, Mass Media Bureau,

(202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order, MM Docket No. 95–167,

adopted March 19, 1997, and released

March 28, 1997. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room 239), 1919 M Street, NW,

Washington, D.C. The complete text of

this decision may also be purchased

from the Commission’s copy contractor,

International Transcription Services,

Inc., (202) 857–3800, 2100 M Street,

NW, Suite 140, Washington, DC 20037.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Part 73 of Title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—[AMENDED]

1. The authority citation for Part 73

continues to read as follows:

Authority: Secs. 303, 48 Stat., as amended,

1082; 47 U.S.C. 154, as amended.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FM

Allotments under Oklahoma, is

amended by removing Claremore,

Channel 264A and adding Chelsea,

Channel 264A.

Federal Communications Commission

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 97–8437 Filed 4–2–97; 8:45 am]

BILLING CODE 6712–01–P