Ex Parte Contacts and Separation of Functions, 29451-29455 [E8-11326]

Agencies

• DEPARTMENT OF ENERGY
• Federal Energy Regulatory Commission

[Federal Register Volume 73, Number 99 (Wednesday, May 21, 2008)]
[Proposed Rules]
[Pages 29451-29455]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-11326]


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DEPARTMENT OF ENERGY

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, DOE.

ACTION: Notice of proposed rulemaking.

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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 July 21, 2008.

ADDRESSES: You may submit comments, identified by docket number by any 
of the following methods:
     Agency Web Site: https://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, NE., Washington, DC 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.,

[[Page 29452]]

Washington, DC 20426, (202) 502-8953, wtmiller@ferc.gov.

SUPPLEMENTARY INFORMATION:

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.

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 proceedings, with decisional employees. Rule 
2202 prohibits litigation staff from advising on or participating in 
the findings, conclusions or decisions of adjudications.\5\
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    \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.
    \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.
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    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\
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    \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).
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    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, 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\
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    \8\ Policy Statement, at P 24-26.
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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.
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    \9\ Id., at P 12.
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    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:
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    \10\ See also Amaranth Advisors, LLC, 122 FERC ] 61,087 (2008).

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

    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.
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    \12\ The Commission explained that it was exercising its 
discretion to extend procedural protections beyond the requirements 
of the regulations. Id. at P 88.
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    7. In this proceeding, we propose to revise Rule 2202 to bring it 
in line with the procedures adopted in ETP, with

[[Page 29453]]

one alteration. Rule 2202 would specifically state that separation of 
functions restrictions begin to apply once the Commission issues a show 
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.
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    \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).
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    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. 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 non-decisional 
employees.\15\ With respect to scope, Rule 2201 applies to
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    \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.

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

    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.
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    \17\ Rule 2201(c)(1)(ii), 18 CFR 385.2201(c)(1)(ii).
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    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 announcing \18\ 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.
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    \18\ Revised Policy on Enforcement, Docket No. PL08-3-000.
    \19\ See 18 CFR 1b.18 (2008).
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    12. With respect to NRECA's remaining question on contacting the 
Commission, section 1b.19 \20\ 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 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

[[Page 29454]]

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.
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    \20\ 18 CFR 1b.19 (2008).
    \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.
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    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 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\
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    \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).
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    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 
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.
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    \24\ 18 CFR 1b.11 (2008).
    \25\ Rule 214 of the Commission's Rules of Practice and 
Procedure, 18 CFR 385.214 (2008).
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    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 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.
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    \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).
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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.
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    \28\ 5 CFR 1320.12 (2008).
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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 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.
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    \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).
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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.
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    \31\ 5 U.S.C. 601-612.
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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 July 21, 2008. Comments must refer to 
Docket No. RM08-8-000, and must include the commenter's name, the 
organization

[[Page 29455]]

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 https://
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, NE., 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.

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 (https://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 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 Web 
site during normal business hours from FERC Online Support at (202) 
502-6652 (toll free at 1-866-208-3676) or e-mail 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.

List of Subjects in 18 CFR part 385

    Administrative practice and procedure, Electric utilities, 
Penalties, Pipelines, Reporting and recordkeeping requirements.

By direction of the Commission.
Kimberly D. Bose,
Secretary.
    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 Sec.  385.214 by adding new paragraph (a)(4) to read as 
follows:


Sec.  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:


Sec.  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 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:


Sec.  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.

[FR Doc. E8-11326 Filed 5-20-08; 8:45 am]
BILLING CODE 6717-01-P