Ex Parte Communications, 1931-1935 [2016-00544]
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Federal Register / Vol. 81, No. 9 / Thursday, January 14, 2016 / Proposed Rules
§ 91.855
Entry and nonaddition rule.
POSTAL REGULATORY COMMISSION
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(a) The airplane complies with Stage
3, Stage 4, or Stage 5 noise levels.
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■ 13. Amend § 91.858 by revising
paragraph (a)(2) to read as follows:
§ 91.858 Special flight authorizations for
non-revenue Stage 2 operations.
(a) * * *
(2) Obtain modifications to meet Stage
3, Stage 4, or Stage 5 noise levels.
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■ 14. Revise § 91.859 to read as follows:
§ 91.859 Modification to meet Stage 3 or
Stage 4 noise levels.
For an airplane subject to § 91.801(c)
of this subpart and otherwise prohibited
from operation to or from an airport in
the contiguous United States by
§ 91.855, any person may apply for a
special flight authorization for that
airplane to operate in the contiguous
United States for the purpose of
obtaining modifications to meet Stage 3,
Stage 4, or Stage 5 noise levels.
■ 15. Revise § 91.881 to read as follows:
§ 91.881 Final compliance: Civil subsonic
jet airplanes weighing 75,000 pounds or
less.
Except as provided in § 91.883, after
December 31, 2015, a person may not
operate to or from an airport in the
contiguous United States a civil
subsonic jet airplane subject to
§ 91.801(e) of this subpart that weighs
less than 75,000 pounds unless that
airplane has been shown to comply with
Stage 3, Stage 4, or Stage 5 noise levels.
■ 16. Amend § 91.883 by revising
paragraph (a)(3) to read as follows:
§ 91.883 Special flight authorizations for
jet airplanes weighing 75,000 pounds or
less.
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(a) * * *
(3) To obtain modifications to the
airplane to meet Stage 3, Stage 4, or
Stage 5 noise levels.
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Issued under authority provided by 49
U.S.C. 44715 in Washington, DC, on
December 21, 2015.
Curtis Holsclaw,
Acting Executive Director, Office of
Environment and Energy.
[FR Doc. 2015–32500 Filed 1–13–16; 8:45 am]
BILLING CODE 4910–13–P
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39 CFR Parts 3000, 3001, and 3008
[Docket No. RM2016–4; Order No. 3005]
Ex Parte Communications
Postal Regulatory Commission.
Proposed rulemaking.
AGENCY:
ACTION:
The Commission is proposing
rules which amend the existing
Commission rules concerning ex parte
communications. The proposed rules
are brought up to date to be consistent
with the recommended approach to
agency treatment of ex parte
communications and reorganized for
clarity. The Commission invites public
comment on the proposed rules.
DATES: Comments are due: February 16,
2016. Reply comments are due:
February 29, 2016.
FOR FURTHER INFORMATION CONTACT:
David A. Trissell, General Counsel, at
202–789–6820.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Table of Contents
I. Introduction
II. Background
III. Section-by-Section Analysis of Proposed
Rule Changes
IV. Internal Policy and Library Reference
V. Public Representative
VI. Solicitation of Comments
VII. Ordering Paragraphs
I. Introduction
This rulemaking is initiated by the
Postal Regulatory Commission
(Commission) to fulfill its
responsibilities under the Postal
Accountability and Enhancement Act
(PAEA), Public Law 109–435, 120 Stat.
3218 (2006). The proposed rules amend
existing Commission rules concerning
ex parte communications 1 and obsolete
rules no longer applicable under the
PAEA are removed. Existing rules are
brought up to date to be consistent with
the recommended approach to agency
treatment of ex parte communications 2
and are further reorganized for clarity.
The ex parte communications rules
currently appear in three areas of the
Commission’s applicable Code of
1 Rules concerning ex parte communications
control all interactions, oral or in writing (including
electronic), between Commission decision-making
personnel, and the United States Postal Service
(Postal Service) or public stakeholders in matters
before the Commission.
2 See Esa L. Sferra-Bonistalli, Ex Parte
Communications in Informal Rulemaking, May 1,
2014, (prepared for consideration of the
Administrative Conference of the United States)
(Sferra-Bonistalli Report); Administrative
Conference of the United States, Administrative
Conference Recommendation 2014–4, June 6, 2014,
(Recommendation 2014–4).
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1931
Federal Regulations (CFR). This
rulemaking proposes to replace, in their
entirety, the rules currently appearing at
39 CFR, part 3000, subpart B. This
rulemaking also proposes to reorganize
the rules currently appearing at
§ 3001.7, including a definition
appearing at § 3001.5(o), and moves this
material to a new 39 CFR part 3008.
II. Background
Applying ex parte communications
principles promotes transparency and
openness in government concerning its
interactions with public stakeholders.
See Recommendation 2014–4 at 2.
These principles help prevent the
perception that an entity may gain an
unfair advantage over another by
communicating inappropriately with
the Commission on an ex parte basis. Id.
at 3. These principles also reduce the
risk that Commission decisions will be
challenged in court based on alleged
reliance on information obtained
through inappropriate ex parte
communications. Sferra-Bonistalli
Report at 77–78.
By statute, the Commission is only
required to place restrictions on ex parte
communications where the Commission
must provide an opportunity for hearing
on the record pursuant to 5 U.S.C. 556–
557. Under the PAEA, this is limited to
nature of postal service cases pursuant
to 39 U.S.C. 3661.
Historically, the Commission’s
regulations also extended restrictions on
ex parte communications to post office
appeal cases pursuant 39 U.S.C.
404(d)(5,6) and complaint cases
pursuant to 39 U.S.C. 3662. The
Commission views this as appropriate
because of the potential impact on
participants and their associated rights
that may result under these types of
proceedings. The proposed rules
continue to impose restrictions on ex
parte communications for the same
statutorily required and historical
proceedings described above. See
proposed 39 CFR part 3008.
Many other types of proceedings
come before the Commission other than
nature of service, post office closing,
and complaint proceedings that are
mentioned above.3 But there is no
statutory requirement to impose ex parte
communications restrictions in these
other proceeding types. However, the
Commission believes that the
aforementioned ex parte principles
suggest that all proceedings before the
3 For example, the Commission administers the
Annual Compliance Report (ACR), Competitive
Product (CP), Mail Classification (MC), Market Test
(MT), Public Inquiry (PI), Rate/Request (R),
Rulemaking (RM), and Annual Tax Computation (T)
proceedings.
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Federal Register / Vol. 81, No. 9 / Thursday, January 14, 2016 / Proposed Rules
Commission should be treated the same.
A consistent policy applicable to all
docket types is the simplest to
understand and the most efficient to
administer. Therefore, concomitant with
the publishing of the final rules on ex
parte communications concerning
nature of service, post office closing,
and complaint proceedings, the
Commission will implement an internal
policy requiring all docket types to
adhere to nearly identical ex parte
communications restrictions. The
internal policy will be referenced in
proposed 39 CFR part 3000, subpart B.
The proposed rules and the internal
policy will be identical as far as
prohibiting ex parte communications for
matters before the Commission. They
also will be identical in requiring a
remedy of disclosure when an ex parte
communication occurs. Because of the
statutory requirements, there are
differences in the types of sanctions, as
will be explained below, that may be
imposed when an ex parte
communication occurs in a nature of
service, post office closing, or complaint
proceeding versus other types of
proceedings. The Commission files the
internal policy as Library Reference
PRC–LR–RM2016–4/1 for comparison
purposes.
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III. Section-by-Section Analysis of
Proposed Rule Changes
The rules in 39 CFR part 3000 are
applicable only to Commission
personnel.
Section 3000.735–501 Ex parte
communications prohibited. Existing
rule 735–501 prohibits ex parte
communications by Commission
decision-making personnel in certain
contested matters before the
Commission. The instant rulemaking
attempts to address several issues with
the existing rule. First, there is
significant redundancy between this
requirement and the requirements of
existing § 3001.7. Second, it is difficult
to identify who qualifies as Commission
decision-making personnel without
referring to other unrelated sections of
the CFR. Third, the rule currently refers
to rate and classification cases under 39
U.S.C. 3624, which were eliminated
under the PAEA. Fourth, no guidance is
offered to Commission personnel on
how to treat ex parte communications
outside the scope of the specific docket
types mentioned under the existing rule.
The proposed rule addresses these
concerns by restructuring § 3000.735–
501. First, the substance of existing
§ 3000.735–501 is moved to proposed
part 3008 and consolidated with
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material from existing § 3001.7.4
Existing § 3000.735–501 is revised to
inform Commission personnel of the
Commission’s general policy concerning
ex parte communications. See proposed
§ 3000.735–501(a). This policy requires
uniform treatment for ex parte
communications in all proceeding types
before the Commission. There is a
general prohibition on ex parte
communications on matters before the
Commission with disclosure as the
primary remedy for inadvertent ex parte
communications. The proposed rule
also provides notice that the internal
Commission policy is available on the
Commission’s public Web site. The
intent of making the policy public is to
make external stakeholders aware of
how Commission personnel will treat ex
parte communications for all proceeding
types.
Finally, Commission personnel are
directed to proposed part 3008. See
proposed § 3000.735–501(b). This part
provides the specific requirements
concerning nature of service
proceedings, post office closing, and
complaint proceedings. Except for the
differences in potential sanctions for
violation of the rule, the internal policy
(applicable to all case types) and the
requirement of part 3008 (applicable to
a subset of case types) are intended to
be consistent.
Section 3000.735–502 Public record
of ex parte communications. The
existing rule requires Commission
personnel to disclose all ex parte
communication in certain matters before
the Commission. This rulemaking
proposes to move the substance of the
disclosure requirement to proposed rule
3008.6 and reserves § 3000.735–502 for
future use.
Section 3001.5(o) Definitions. Ex
parte communication. The existing rule
provides the current definition of ex
parte communications. This rulemaking
proposes to move the definition to
§ 3008.2. The definition will be updated
consistent with the recommended
agency treatment of ex parte
communications. The updated
definition adds that electronic
communications qualify as ex parte
communications. The definition also
provides a detailed list of exceptions to
the otherwise broad scope of covered
communications. Existing § 3001.5(o) is
reserved for future use.
Section 3001.7 Ex parte
communications. The Commission’s ex
parte communications rules (applicable
to the pre-PAEA subset of case types)
4 Proposed part 3008 in part identifies the
applicable decision-making personnel and removes
references to previous rate and classification cases.
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are currently located in § 3001.7. The
Commission proposes to move the
substance of these rules to new part
3008. The amended rules will address
the requirements for nature of service
proceedings, post office closing, and
complaint proceedings that come before
the Commission. The rules will be
applicable to Commission personnel,
the Postal Service, and all outside
entities that interact with the
Commission.
Section 3008.1 Applicability.
Proposed § 3008.1 specifies that the
rules provided within part 3008 are
applicable to nature of service, post
office closing, and complaint
proceedings. It also provides the
Commission with discretion to impose
ex parte communication restrictions
concerning other matters that come
before the Commission, where
appropriate.
Section 3008.2 Definition of ex parte
communications. Proposed § 3008.2
begins with a broad definition of ex
parte communications and then limits
the scope of the definition through a
series of exceptions. The broad
definition includes all communications,
oral or written (including electronic),
between Commission decision-making
personnel, and the Postal Service or
public stakeholders regarding matters
before the Commission. The exceptions
limit the scope of the definition to
exclude: (1) Documents filed using the
Commission’s docketing system; (2)
communications during widely
publicized Commission meetings,
hearings, or other publicly noticed
events for which a summary of the
meeting, hearing or event is provided
for the record; (3) communications
during off-the-record technical
conferences or publicly noticed prefiling conferences for nature of service
cases; (4) questions and replies
concerning Commission procedures and
uncontested status inquiries; and (5)
communications not material to the
matter before the Commission. The
approach to this rule is intended to be
consistent with the Sferra-Bonistalli
Report and the Administrative
Conference’s Recommendation 2014–4
with tailoring to the Commission’s
operations.
Section 3008.3 Definition of a matter
before the Commission. Proposed
§ 3008.3 defines when a matter is or is
not ‘‘before the Commission’’ for
purposes of determining when the ex
parte communication rules apply. The
proposed rule provides the Commission
with discretion to apply ex parte
communications restrictions at any
time, but no later than when a request
to initiate a proceeding is received or
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when the Commission notices a
proceeding. It also imposes ex parte
communication restrictions when there
is an affirmative action announcing, or
active preparation of, an actual request
with intent to file in a reasonable period
of time. The effect of this rule is to limit
the application of the ex parte
communications rules to exclude most,
if not all, communications until a matter
has actually been initiated by an outside
entity or noticed by the Commission (or
either of these actions is imminent).
Section 3008.4 Definitions of
persons subject to ex parte
communications rules. Proposed
§ 3008.4 defines ‘‘Commission decisionmaking personnel,’’ the ‘‘Postal
Service,’’ ‘‘public stakeholders,’’ and
‘‘Commission non-decision-making
personnel,’’ for the purposes of the ex
parte communications rules. The
proposed rule incorporates the
definitions of ‘‘Commission decisionmaking personnel,’’ and ‘‘Commission
non-decision-making personnel,’’ from
existing § 3001.7(a), and broadens the
definition to include contractors,
consultants, and others hired to assist
with analysis and decisions. The
proposed rule, for the first time,
includes definitions for Postal Service
personnel and other public
stakeholders.
Section 3008.5 Prohibitions.
Proposed § 3008.5(a) imposes a general
prohibition of ex parte communications
between Commission decision-making
personnel and the Postal Service or
other public stakeholders. The proposed
rule adds that Commission decisionmaking personnel are prohibited from
relying upon any information obtained
through ex parte communications. See
proposed § 3008(b). Finally, proposed
§ 3008(c) clarifies that proposed
§ 3008(a) does not constitute authority
to withhold information from Congress.
Section 3008.6 Required action
upon ex parte communications.
Proposed § 3008.6 mirrors existing
§ 3001.7(b)(3) through (5) setting forth
the actions required when ex parte
communications occur. Three steps are
outlined. Commission decision-making
personnel are first required to decline to
listen to ex parte communications. If ex
parte communications occur regardless
of efforts to prevent such
communications, the communications
must be disclosed. Finally, under
certain circumstances, there may be an
opportunity for others to rebut the
contents of the ex parte
communications.
Section 3008.7 Penalty for violation
of ex parte communication rules.
Proposed § 3008.7 mirrors existing
§ 3001.7(d)(1) and (2), outlining the
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penalties for violations of the ex parte
communications rules. This includes
providing possible violators of the rules
with an opportunity to show cause why
their claim should not be dismissed,
denied, disregarded, or otherwise
adversely affect the outcome of the
proceeding.
IV. Internal Policy and Library
Reference
Library Reference PRC–LR–RM2016–
4/1 is a copy of the Commission’s
written employee policy regarding ex
parte communications. The Commission
intends to adopt this policy to further its
goal of transparency and openness in all
dockets. Though ex parte restrictions are
only statutorily required by regulation
for nature of service, post office appeals,
and complaint matters, the Commission
seeks to alleviate any real or perceived
unfairness in its communications with
stakeholders in all cases and thus
creates this new ex parte policy.
The policy will be posted to the
Commission Web site at www.prc.gov if
and when the Commission adopts final
rules pursuant to this proceeding.
Although the attached employee policy
will not be binding on persons outside
of the Commission, public disclosure of
the document will better inform outside
entities concerning the Commission’s
treatment of ex parte communications in
all proceeding types that may come
before the Commission. The
Commission welcomes public comment
on the policy to identify problems and
to ensure consistency with the proposed
rules discussed herein and with the
Commission’s regulatory scheme as a
whole.
V. Public Representative
Pursuant to 39 U.S.C. 505, Patricia A.
Gallagher is appointed the officer of the
Commission (Public Representative) to
represent the interests of the general
public in the captioned docket.
1933
Commission’s rules governing ex parte
communications.
2. The Commission proposes to
amend existing ex parte
communications rules appearing at 39
CFR part 3000, subpart B, and to move
and amend existing ex parte
communications rules previously
appearing at § 3001.5(o) and § 3001.7
into new 39 CFR part 3008.
3. Pursuant to 39 U.S.C. 505, the
Commission appoints Patricia A.
Gallagher to serve as an officer of the
Commission (Public Representative) to
represent the interests of the general
public in these proceedings.
4. Interested persons may submit
initial comments no later than 30 days
from the date of publication of this
Notice in the Federal Register.
5. Reply Comments may be filed no
later than 45 days from the date of
publication of this Notice in the Federal
Register.
6. The Secretary shall arrange for
publication of this Notice in the Federal
Register.
By the Commission.
Stacy L. Ruble,
Secretary.
List of Subjects
39 CFR Part 3000
Conflicts of interests, Ex parte
communications.
39 CFR Part 3001
Administrative practice and
procedure, Confidential business
information, Ex parte communications,
Freedom of information, Sunshine Act.
39 CFR Part 3008
Administrative practice and
procedure, Ex parte communications.
For the reasons discussed in the
preamble, the Commission proposes to
amend chapter III of title 39 of the Code
of Federal Regulations as follows:
VI. Solicitation of Comments
Interested persons are invited to
comment on the rules proposed in this
rulemaking. Interested persons may also
comment on the attached internal
Commission policy concerning ex parte
communications to ensure consistency
with the proposed rules. Comments are
due no later than 30 days, and reply
comments no later than 45 days, after
publication of this Notice in the Federal
Register.
PART 3000—STANDARDS OF
CONDUCT
VII. Ordering Paragraphs
It is ordered:
1. The Commission establishes Docket
No. RM2016–4 for the purpose of
considering changes to the
Subpart B—Ex Parte Communications
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1. The authority citation for part 3000
is revised to read as follows:
■
Authority: 39 U.S.C. 503; 504, 3603; E.O.
12674; 54 FR 15159; 3 CFR,1989 Comp., p.
215, as modified by E.O. 12731, 56 FR 42547,
3 CFR, 1990 Comp., p. 396, 5 CFR parts 2634
and 2635.
2. Revise subpart B of part 3000 to
read as follows:
■
Sec.
3000.735–501 Ex parte communications
prohibited.
3000.735–502 [Reserved]
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§ 3000.735–501
prohibited.
Ex parte communications
(a) The Commission maintains a
written employee policy regarding ex
parte communications applicable to all
interactions, oral or in writing
(including electronic), between
Commission decision-making
personnel, and the United States Postal
Service or public stakeholders in
matters before the Commission. It is the
responsibility of all Commission
personnel to comply with this policy,
including the responsibility to inform
persons not employed by the
Commission of this policy when
required. The policy is available for
review on the Commission’s Web site at
www.prc.gov.
(b) Additional ex parte
communications requirements,
applicable to specific docket types, are
described in part 3008 of this chapter.
§ 3000.735–502
[Reserved]
PART 3001—RULES OF PRACTICE
AND PROCEDURE
3. The authority citation of part 3001
continues to read as follows:
■
Authority: 39 U.S.C. 404(d); 503; 504;
3661.
§ 3001.5
[Amended]
4. Amend § 3001.5 by removing and
reserving paragraph (o).
■
§ 3001.7
■
■
[Removed and reserved]
5. Remove and reserve § 3001.7.
6. Add part 3008 to read as follows:
PART 3008—EX PARTE
COMMUNICATIONS
Sec.
3008.1 Applicability.
3008.2 Definition of ex parte
communications.
3008.3 Definition of a matter before the
Commission.
3008.4 Definitions of persons subject to ex
parte communication rules.
3008.5 Prohibitions.
3008.6 Required action upon ex parte
communication.
3008.7 Penalty for violation of ex parte
communication rules.
Authority: 39 U.S.C. 404(d)(5); 503; 504;
3661(c); 3662.
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§ 3008.1
Applicability.
(a) The rules in this section are
applicable to the Commission
proceedings identified in paragraphs (b)
through (e) of this section.
(b) The nature of postal service
proceedings conducted pursuant to 39
U.S.C. 3661(c).
(c) The appeals of Postal Service
decisions to close or consolidate any
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post office conducted pursuant to 39
U.S.C. 404(d)(5).
(d) Rate or service complaints
conducted pursuant to 39 U.S.C. 3662.
(e) Any other matter in which the
Commission, in its discretion,
determines that it is appropriate to
apply the rules of this section.
§ 3008.2 Definition of ex parte
communications.
(a) Subject to the exceptions specified
in paragraph (b) of this section, ex parte
communications include all
communications, oral or written
(including electronic), between
Commission decision-making
personnel, and the Postal Service or
public stakeholders regarding matters
before the Commission.
(b) Ex parte communications do not
include:
(1) Documents filed using the
Commission’s docketing system;
(2) Communications during the course
of Commission meetings or hearings, or
other widely publicized events where
the Commission provides advance
public notice of the event indicating the
matter to be discussed, the event is open
to all persons participating in the matter
before the Commission, and a summary
of the event is provided for the record;
(3) Communications during the course
of off-the-record technical conferences
associated with a matter before the
Commission, or the pre-filing
conference for nature of service cases
required by § 3001.81 of this chapter,
where advance public notice of the
event is provided indicating the matter
to be discussed, and the event is open
to all persons participating in the matter
before the Commission;
(4) Questions concerning Commission
procedures, the status of a matter before
the Commission, or the procedural
schedule of a pending matter, where
these issues are not contested matters
before the Commission; and
(5) Communications not material to
the matter before the Commission.
§ 3008.3 Definition of a matter before the
Commission.
(a) A matter is before the Commission
at such time as the Commission may
designate, but in no event later than the
earlier of the filing of a request to
initiate a proceeding or the Commission
noticing a proceeding.
(b) A matter is also before the
Commission at such time as the person
responsible for the communication has
knowledge that a request to initiate a
proceeding is expected to be filed.
(c) The following explanations apply:
(1) A matter is no longer before the
Commission upon the issuance of the
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final order or decision in the docketed
matter;
(2) A matter is again before the
Commission upon the filing of a request
for reconsideration. The matter remains
before the Commission until resolution
of the matter under reconsideration;
(3) A matter is again before the
Commission upon the remand of a
Commission’s final decision or order by
an appellate court. The matter remains
before the Commission until resolution
of the matter under remand; and
(4) The mere potential that a request
may be filed does not place a matter
before the Commission. An affirmative
action announcing, or actively
preparing, an actual request with the
intent to file within a reasonable period
of time must be present.
§ 3008.4 Definitions of persons subject to
ex parte communication rules.
(a) Commission decision-making
personnel include:
(1) The Commissioners and their
staffs;
(2) The General Counsel and staff;
(3) The Director of the Office of
Accountability and Compliance and
staff;
(4) Contractors, consultants, and
others hired by the Commission to assist
with the Commission’s analysis and
decision; and
(5) Any other employee who may
reasonably be expected to be involved
in the decisional process.
(b) The Postal Service includes all
Postal Service employees, contractors,
consultants, and others with an interest
in a matter before the Commission. Any
interaction between the Postal Service
and Commission decision-making
personnel concerning a matter before
the Commission expresses an interest in
the matter before the Commission.
(c) Public stakeholders include all
other persons not previously described,
with an interest in a matter before the
Commission. This includes the
Commission non-decision-making
personnel identified in paragraph (d) of
this section. Any interaction between a
public stakeholder and Commission
decision-making personnel concerning a
matter before the Commission expresses
an interest in the matter before the
Commission.
(d) Commission non-decision-making
personnel include:
(1) All Commission personnel other
than decision-making personnel;
(2) Commission personnel not
participating in the decisional process
owing to the prohibitions of § 3001.8 of
this chapter regarding no participation
by investigative or prosecuting officers;
(3) The Public Representative and
other Commission personnel assigned to
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represent the interests of the general
public pursuant to 39 U.S.C. 505 in the
specific case or controversy at issue
(regardless of normally assigned duties);
and
(4) Contractors, consultants, and
others hired by the Commission to
provide an independent analysis of
issues before the Commission (and
Commission employees assigned
thereto).
§ 3008.5
Prohibitions.
(a) Ex parte communications between
Commission decision-making
personnel, and the Postal Service or
public stakeholders is prohibited.
(b) Commission decision-making
personnel shall not rely upon any
information obtained through ex parte
communications.
(c) Paragraph (a) of this section does
not constitute authority to withhold
information from Congress.
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§ 3008.6 Required action upon ex parte
communications.
(a) Commission decision-making
personnel who receive ex parte
communications relevant to the merits
of the proceeding shall decline to listen
to such communications and explain
that the matter is pending for
determination. Any recipient thereof
shall advise the communicator that the
communication will not be considered,
and shall promptly and fully inform the
Commission in writing of the substance
of and the circumstances attending the
communication, so that the Commission
will be able to take appropriate action.
(b) Commission decision-making
personnel who receive, or who make or
knowingly cause to be made, ex parte
communications prohibited by this part
shall promptly place, or cause to be
placed, on the public record of the
proceeding:
(1) All such written communications;
(2) Memoranda stating the substance
of all such oral communications; and
(3) All written responses, and
memoranda stating the substance of all
oral responses, to the materials
described in (b)(1) and (2) of this
section.
(c) Requests for an opportunity to
rebut, on the record, any facts or
contentions contained in an ex parte
communication which have been placed
on the public record of the proceeding
pursuant to paragraph (b) of this section
may be filed in writing with the
Commission. The Commission will
grant such requests only where it
determines that the dictates of fairness
so require. In lieu of actually receiving
rebuttal material, the Commission may
in its discretion direct that the alleged
VerDate Sep<11>2014
16:34 Jan 13, 2016
Jkt 238001
factual assertion and the proposed
rebuttal be disregarded in arriving at a
decision.
§ 3008.7 Penalty for violation of ex parte
communication rules.
(a) Upon notice of a communication
knowingly made or knowingly caused to
be made by a participant in violation of
§ 3008.5(a), the Commission or
presiding officer may, to the extent
consistent with the interests of justice
and the policy of the underlying
statutes, require the participant to show
cause why his/her claim or interest in
the proceeding should not be dismissed,
denied, disregarded, or otherwise
adversely affected on account of such
violation.
(b) The Commission may, to the
extent consistent with the interests of
justice and the policy of the underlying
statutes administered by the
Commission, consider a violation of
§ 3008.5(a) sufficient grounds for a
decision adverse to a party who has
knowingly committed such violation or
knowingly caused such violation to
occur.
[FR Doc. 2016–00544 Filed 1–13–16; 8:45 am]
BILLING CODE 7710–FW–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2015–0647; FRL–9941–20–
Region 6]
Approval and Promulgation of Air
Quality Implementation Plans;
Arkansas; Crittenden County Base
Year Emission Inventory
1935
Comments may be mailed to
Ms. Mary Stanton, Chief, State
Implementation B, Ozone and
Infrastructure Section (6MM–AB),
Environmental Protection Agency, 1445
Ross Avenue, Suite 1200, Dallas, Texas
75202–2733. Comments may also be
submitted electronically or through
hand delivery/courier by following the
detailed instructions in the ADDRESSES
section of the direct final rule located in
the rules section of this Federal
Register.
FOR FURTHER INFORMATION CONTACT:
Colin Schwartz, (214) 665–7262,
Schwartz.Colin@epa.gov.
SUPPLEMENTARY INFORMATION: In the
final rules section of this Federal
Register, the EPA is approving the
State’s SIP submittal as a direct rule
without prior proposal because the
Agency views this as noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no relevant adverse comments
are received in response to this action
no further activity is contemplated. If
the EPA receives relevant adverse
comments, the direct final rule will be
withdrawn and all public comments
received will be addressed in a
subsequent final rule based on this
proposed rule. The EPA will not
institute a second comment period. Any
parties interested in commenting on this
action should do so at this time.
For additional information, see the
direct final rule which is located in the
rules section of this Federal Register.
ADDRESSES:
Dated: December 30, 2015.
Samuel Coleman,
Acting Regional Administrator, Region 6.
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
[FR Doc. 2016–00560 Filed 1–13–16; 8:45 am]
The Environmental Protection
Agency (EPA) is proposing to approve a
revision to the Arkansas State
Implementation Plan (SIP) submitted to
meet the Clean Air Act (CAA) emissions
inventory (EI) requirement for the
Crittenden County ozone nonattainment
area. EPA is approving the SIP revision
because it satisfies the CAA EI
requirement for Crittenden County
under the 2008 8-hour ozone National
Ambient Air Quality Standards
(NAAQS). The inventory includes
emission data for Nitrogen Oxides
(NOx) and Volatile Organic Compounds
(VOCs). EPA is approving the revisions
pursuant to section 110 and part D of
the CAA and EPA’s regulations.
DATES: Written comments should be
received on or before February 16, 2016.
ENVIRONMENTAL PROTECTION
AGENCY
AGENCY:
SUMMARY:
PO 00000
Frm 00013
Fmt 4702
Sfmt 4702
BILLING CODE 6560–50–P
40 CFR Part 52
[EPA–R07–OAR–2015–0587; FRL 9940–98–
Region 7]
Approval of Missouri’s Air Quality
Implementation Plans; Early Progress
Plan of the St. Louis Nonattainment
Area for the 2008 Ozone National
Ambient Air Quality Standard
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
revisions to the State Implementation
Plan (SIP) submitted by the State of
SUMMARY:
E:\FR\FM\14JAP1.SGM
14JAP1
]]>Agencies
[Federal Register Volume 81, Number 9 (Thursday, January 14, 2016)]
[Proposed Rules]
[Pages 1931-1935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00544]
=======================================================================
-----------------------------------------------------------------------
POSTAL REGULATORY COMMISSION
39 CFR Parts 3000, 3001, and 3008
[Docket No. RM2016-4; Order No. 3005]
Ex Parte Communications
AGENCY: Postal Regulatory Commission.
ACTION: Proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Commission is proposing rules which amend the existing
Commission rules concerning ex parte communications. The proposed rules
are brought up to date to be consistent with the recommended approach
to agency treatment of ex parte communications and reorganized for
clarity. The Commission invites public comment on the proposed rules.
DATES: Comments are due: February 16, 2016. Reply comments are due:
February 29, 2016.
FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at
202-789-6820.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Background
III. Section-by-Section Analysis of Proposed Rule Changes
IV. Internal Policy and Library Reference
V. Public Representative
VI. Solicitation of Comments
VII. Ordering Paragraphs
I. Introduction
This rulemaking is initiated by the Postal Regulatory Commission
(Commission) to fulfill its responsibilities under the Postal
Accountability and Enhancement Act (PAEA), Public Law 109-435, 120
Stat. 3218 (2006). The proposed rules amend existing Commission rules
concerning ex parte communications \1\ and obsolete rules no longer
applicable under the PAEA are removed. Existing rules are brought up to
date to be consistent with the recommended approach to agency treatment
of ex parte communications \2\ and are further reorganized for clarity.
---------------------------------------------------------------------------
\1\ Rules concerning ex parte communications control all
interactions, oral or in writing (including electronic), between
Commission decision-making personnel, and the United States Postal
Service (Postal Service) or public stakeholders in matters before
the Commission.
\2\ See Esa L. Sferra-Bonistalli, Ex Parte Communications in
Informal Rulemaking, May 1, 2014, (prepared for consideration of the
Administrative Conference of the United States) (Sferra-Bonistalli
Report); Administrative Conference of the United States,
Administrative Conference Recommendation 2014-4, June 6, 2014,
(Recommendation 2014-4).
---------------------------------------------------------------------------
The ex parte communications rules currently appear in three areas
of the Commission's applicable Code of Federal Regulations (CFR). This
rulemaking proposes to replace, in their entirety, the rules currently
appearing at 39 CFR, part 3000, subpart B. This rulemaking also
proposes to reorganize the rules currently appearing at Sec. 3001.7,
including a definition appearing at Sec. 3001.5(o), and moves this
material to a new 39 CFR part 3008.
II. Background
Applying ex parte communications principles promotes transparency
and openness in government concerning its interactions with public
stakeholders. See Recommendation 2014-4 at 2. These principles help
prevent the perception that an entity may gain an unfair advantage over
another by communicating inappropriately with the Commission on an ex
parte basis. Id. at 3. These principles also reduce the risk that
Commission decisions will be challenged in court based on alleged
reliance on information obtained through inappropriate ex parte
communications. Sferra-Bonistalli Report at 77-78.
By statute, the Commission is only required to place restrictions
on ex parte communications where the Commission must provide an
opportunity for hearing on the record pursuant to 5 U.S.C. 556-557.
Under the PAEA, this is limited to nature of postal service cases
pursuant to 39 U.S.C. 3661.
Historically, the Commission's regulations also extended
restrictions on ex parte communications to post office appeal cases
pursuant 39 U.S.C. 404(d)(5,6) and complaint cases pursuant to 39
U.S.C. 3662. The Commission views this as appropriate because of the
potential impact on participants and their associated rights that may
result under these types of proceedings. The proposed rules continue to
impose restrictions on ex parte communications for the same statutorily
required and historical proceedings described above. See proposed 39
CFR part 3008.
Many other types of proceedings come before the Commission other
than nature of service, post office closing, and complaint proceedings
that are mentioned above.\3\ But there is no statutory requirement to
impose ex parte communications restrictions in these other proceeding
types. However, the Commission believes that the aforementioned ex
parte principles suggest that all proceedings before the
[[Page 1932]]
Commission should be treated the same. A consistent policy applicable
to all docket types is the simplest to understand and the most
efficient to administer. Therefore, concomitant with the publishing of
the final rules on ex parte communications concerning nature of
service, post office closing, and complaint proceedings, the Commission
will implement an internal policy requiring all docket types to adhere
to nearly identical ex parte communications restrictions. The internal
policy will be referenced in proposed 39 CFR part 3000, subpart B.
---------------------------------------------------------------------------
\3\ For example, the Commission administers the Annual
Compliance Report (ACR), Competitive Product (CP), Mail
Classification (MC), Market Test (MT), Public Inquiry (PI), Rate/
Request (R), Rulemaking (RM), and Annual Tax Computation (T)
proceedings.
---------------------------------------------------------------------------
The proposed rules and the internal policy will be identical as far
as prohibiting ex parte communications for matters before the
Commission. They also will be identical in requiring a remedy of
disclosure when an ex parte communication occurs. Because of the
statutory requirements, there are differences in the types of
sanctions, as will be explained below, that may be imposed when an ex
parte communication occurs in a nature of service, post office closing,
or complaint proceeding versus other types of proceedings. The
Commission files the internal policy as Library Reference PRC-LR-
RM2016-4/1 for comparison purposes.
III. Section-by-Section Analysis of Proposed Rule Changes
The rules in 39 CFR part 3000 are applicable only to Commission
personnel.
Section 3000.735-501 Ex parte communications prohibited. Existing
rule 735-501 prohibits ex parte communications by Commission decision-
making personnel in certain contested matters before the Commission.
The instant rulemaking attempts to address several issues with the
existing rule. First, there is significant redundancy between this
requirement and the requirements of existing Sec. 3001.7. Second, it
is difficult to identify who qualifies as Commission decision-making
personnel without referring to other unrelated sections of the CFR.
Third, the rule currently refers to rate and classification cases under
39 U.S.C. 3624, which were eliminated under the PAEA. Fourth, no
guidance is offered to Commission personnel on how to treat ex parte
communications outside the scope of the specific docket types mentioned
under the existing rule.
The proposed rule addresses these concerns by restructuring Sec.
3000.735-501. First, the substance of existing Sec. 3000.735-501 is
moved to proposed part 3008 and consolidated with material from
existing Sec. 3001.7.\4\ Existing Sec. 3000.735-501 is revised to
inform Commission personnel of the Commission's general policy
concerning ex parte communications. See proposed Sec. 3000.735-501(a).
This policy requires uniform treatment for ex parte communications in
all proceeding types before the Commission. There is a general
prohibition on ex parte communications on matters before the Commission
with disclosure as the primary remedy for inadvertent ex parte
communications. The proposed rule also provides notice that the
internal Commission policy is available on the Commission's public Web
site. The intent of making the policy public is to make external
stakeholders aware of how Commission personnel will treat ex parte
communications for all proceeding types.
---------------------------------------------------------------------------
\4\ Proposed part 3008 in part identifies the applicable
decision-making personnel and removes references to previous rate
and classification cases.
---------------------------------------------------------------------------
Finally, Commission personnel are directed to proposed part 3008.
See proposed Sec. 3000.735-501(b). This part provides the specific
requirements concerning nature of service proceedings, post office
closing, and complaint proceedings. Except for the differences in
potential sanctions for violation of the rule, the internal policy
(applicable to all case types) and the requirement of part 3008
(applicable to a subset of case types) are intended to be consistent.
Section 3000.735-502 Public record of ex parte communications. The
existing rule requires Commission personnel to disclose all ex parte
communication in certain matters before the Commission. This rulemaking
proposes to move the substance of the disclosure requirement to
proposed rule 3008.6 and reserves Sec. 3000.735-502 for future use.
Section 3001.5(o) Definitions. Ex parte communication. The existing
rule provides the current definition of ex parte communications. This
rulemaking proposes to move the definition to Sec. 3008.2. The
definition will be updated consistent with the recommended agency
treatment of ex parte communications. The updated definition adds that
electronic communications qualify as ex parte communications. The
definition also provides a detailed list of exceptions to the otherwise
broad scope of covered communications. Existing Sec. 3001.5(o) is
reserved for future use.
Section 3001.7 Ex parte communications. The Commission's ex parte
communications rules (applicable to the pre-PAEA subset of case types)
are currently located in Sec. 3001.7. The Commission proposes to move
the substance of these rules to new part 3008. The amended rules will
address the requirements for nature of service proceedings, post office
closing, and complaint proceedings that come before the Commission. The
rules will be applicable to Commission personnel, the Postal Service,
and all outside entities that interact with the Commission.
Section 3008.1 Applicability. Proposed Sec. 3008.1 specifies that
the rules provided within part 3008 are applicable to nature of
service, post office closing, and complaint proceedings. It also
provides the Commission with discretion to impose ex parte
communication restrictions concerning other matters that come before
the Commission, where appropriate.
Section 3008.2 Definition of ex parte communications. Proposed
Sec. 3008.2 begins with a broad definition of ex parte communications
and then limits the scope of the definition through a series of
exceptions. The broad definition includes all communications, oral or
written (including electronic), between Commission decision-making
personnel, and the Postal Service or public stakeholders regarding
matters before the Commission. The exceptions limit the scope of the
definition to exclude: (1) Documents filed using the Commission's
docketing system; (2) communications during widely publicized
Commission meetings, hearings, or other publicly noticed events for
which a summary of the meeting, hearing or event is provided for the
record; (3) communications during off-the-record technical conferences
or publicly noticed pre-filing conferences for nature of service cases;
(4) questions and replies concerning Commission procedures and
uncontested status inquiries; and (5) communications not material to
the matter before the Commission. The approach to this rule is intended
to be consistent with the Sferra-Bonistalli Report and the
Administrative Conference's Recommendation 2014-4 with tailoring to the
Commission's operations.
Section 3008.3 Definition of a matter before the Commission.
Proposed Sec. 3008.3 defines when a matter is or is not ``before the
Commission'' for purposes of determining when the ex parte
communication rules apply. The proposed rule provides the Commission
with discretion to apply ex parte communications restrictions at any
time, but no later than when a request to initiate a proceeding is
received or
[[Page 1933]]
when the Commission notices a proceeding. It also imposes ex parte
communication restrictions when there is an affirmative action
announcing, or active preparation of, an actual request with intent to
file in a reasonable period of time. The effect of this rule is to
limit the application of the ex parte communications rules to exclude
most, if not all, communications until a matter has actually been
initiated by an outside entity or noticed by the Commission (or either
of these actions is imminent).
Section 3008.4 Definitions of persons subject to ex parte
communications rules. Proposed Sec. 3008.4 defines ``Commission
decision-making personnel,'' the ``Postal Service,'' ``public
stakeholders,'' and ``Commission non-decision-making personnel,'' for
the purposes of the ex parte communications rules. The proposed rule
incorporates the definitions of ``Commission decision-making
personnel,'' and ``Commission non-decision-making personnel,'' from
existing Sec. 3001.7(a), and broadens the definition to include
contractors, consultants, and others hired to assist with analysis and
decisions. The proposed rule, for the first time, includes definitions
for Postal Service personnel and other public stakeholders.
Section 3008.5 Prohibitions. Proposed Sec. 3008.5(a) imposes a
general prohibition of ex parte communications between Commission
decision-making personnel and the Postal Service or other public
stakeholders. The proposed rule adds that Commission decision-making
personnel are prohibited from relying upon any information obtained
through ex parte communications. See proposed Sec. 3008(b). Finally,
proposed Sec. 3008(c) clarifies that proposed Sec. 3008(a) does not
constitute authority to withhold information from Congress.
Section 3008.6 Required action upon ex parte communications.
Proposed Sec. 3008.6 mirrors existing Sec. 3001.7(b)(3) through (5)
setting forth the actions required when ex parte communications occur.
Three steps are outlined. Commission decision-making personnel are
first required to decline to listen to ex parte communications. If ex
parte communications occur regardless of efforts to prevent such
communications, the communications must be disclosed. Finally, under
certain circumstances, there may be an opportunity for others to rebut
the contents of the ex parte communications.
Section 3008.7 Penalty for violation of ex parte communication
rules. Proposed Sec. 3008.7 mirrors existing Sec. 3001.7(d)(1) and
(2), outlining the penalties for violations of the ex parte
communications rules. This includes providing possible violators of the
rules with an opportunity to show cause why their claim should not be
dismissed, denied, disregarded, or otherwise adversely affect the
outcome of the proceeding.
IV. Internal Policy and Library Reference
Library Reference PRC-LR-RM2016-4/1 is a copy of the Commission's
written employee policy regarding ex parte communications. The
Commission intends to adopt this policy to further its goal of
transparency and openness in all dockets. Though ex parte restrictions
are only statutorily required by regulation for nature of service, post
office appeals, and complaint matters, the Commission seeks to
alleviate any real or perceived unfairness in its communications with
stakeholders in all cases and thus creates this new ex parte policy.
The policy will be posted to the Commission Web site at www.prc.gov
if and when the Commission adopts final rules pursuant to this
proceeding. Although the attached employee policy will not be binding
on persons outside of the Commission, public disclosure of the document
will better inform outside entities concerning the Commission's
treatment of ex parte communications in all proceeding types that may
come before the Commission. The Commission welcomes public comment on
the policy to identify problems and to ensure consistency with the
proposed rules discussed herein and with the Commission's regulatory
scheme as a whole.
V. Public Representative
Pursuant to 39 U.S.C. 505, Patricia A. Gallagher is appointed the
officer of the Commission (Public Representative) to represent the
interests of the general public in the captioned docket.
VI. Solicitation of Comments
Interested persons are invited to comment on the rules proposed in
this rulemaking. Interested persons may also comment on the attached
internal Commission policy concerning ex parte communications to ensure
consistency with the proposed rules. Comments are due no later than 30
days, and reply comments no later than 45 days, after publication of
this Notice in the Federal Register.
VII. Ordering Paragraphs
It is ordered:
1. The Commission establishes Docket No. RM2016-4 for the purpose
of considering changes to the Commission's rules governing ex parte
communications.
2. The Commission proposes to amend existing ex parte
communications rules appearing at 39 CFR part 3000, subpart B, and to
move and amend existing ex parte communications rules previously
appearing at Sec. 3001.5(o) and Sec. 3001.7 into new 39 CFR part
3008.
3. Pursuant to 39 U.S.C. 505, the Commission appoints Patricia A.
Gallagher to serve as an officer of the Commission (Public
Representative) to represent the interests of the general public in
these proceedings.
4. Interested persons may submit initial comments no later than 30
days from the date of publication of this Notice in the Federal
Register.
5. Reply Comments may be filed no later than 45 days from the date
of publication of this Notice in the Federal Register.
6. The Secretary shall arrange for publication of this Notice in
the Federal Register.
By the Commission.
Stacy L. Ruble,
Secretary.
List of Subjects
39 CFR Part 3000
Conflicts of interests, Ex parte communications.
39 CFR Part 3001
Administrative practice and procedure, Confidential business
information, Ex parte communications, Freedom of information, Sunshine
Act.
39 CFR Part 3008
Administrative practice and procedure, Ex parte communications.
For the reasons discussed in the preamble, the Commission proposes
to amend chapter III of title 39 of the Code of Federal Regulations as
follows:
PART 3000--STANDARDS OF CONDUCT
0
1. The authority citation for part 3000 is revised to read as follows:
Authority: 39 U.S.C. 503; 504, 3603; E.O. 12674; 54 FR 15159; 3
CFR,1989 Comp., p. 215, as modified by E.O. 12731, 56 FR 42547, 3
CFR, 1990 Comp., p. 396, 5 CFR parts 2634 and 2635.
0
2. Revise subpart B of part 3000 to read as follows:
Subpart B--Ex Parte Communications
Sec.
3000.735-501 Ex parte communications prohibited.
3000.735-502 [Reserved]
[[Page 1934]]
Sec. 3000.735-501 Ex parte communications prohibited.
(a) The Commission maintains a written employee policy regarding ex
parte communications applicable to all interactions, oral or in writing
(including electronic), between Commission decision-making personnel,
and the United States Postal Service or public stakeholders in matters
before the Commission. It is the responsibility of all Commission
personnel to comply with this policy, including the responsibility to
inform persons not employed by the Commission of this policy when
required. The policy is available for review on the Commission's Web
site at www.prc.gov.
(b) Additional ex parte communications requirements, applicable to
specific docket types, are described in part 3008 of this chapter.
Sec. 3000.735-502 [Reserved]
PART 3001--RULES OF PRACTICE AND PROCEDURE
0
3. The authority citation of part 3001 continues to read as follows:
Authority: 39 U.S.C. 404(d); 503; 504; 3661.
Sec. 3001.5 [Amended]
0
4. Amend Sec. 3001.5 by removing and reserving paragraph (o).
Sec. 3001.7 [Removed and reserved]
0
5. Remove and reserve Sec. 3001.7.
0
6. Add part 3008 to read as follows:
PART 3008--EX PARTE COMMUNICATIONS
Sec.
3008.1 Applicability.
3008.2 Definition of ex parte communications.
3008.3 Definition of a matter before the Commission.
3008.4 Definitions of persons subject to ex parte communication
rules.
3008.5 Prohibitions.
3008.6 Required action upon ex parte communication.
3008.7 Penalty for violation of ex parte communication rules.
Authority: 39 U.S.C. 404(d)(5); 503; 504; 3661(c); 3662.
Sec. 3008.1 Applicability.
(a) The rules in this section are applicable to the Commission
proceedings identified in paragraphs (b) through (e) of this section.
(b) The nature of postal service proceedings conducted pursuant to
39 U.S.C. 3661(c).
(c) The appeals of Postal Service decisions to close or consolidate
any post office conducted pursuant to 39 U.S.C. 404(d)(5).
(d) Rate or service complaints conducted pursuant to 39 U.S.C.
3662.
(e) Any other matter in which the Commission, in its discretion,
determines that it is appropriate to apply the rules of this section.
Sec. 3008.2 Definition of ex parte communications.
(a) Subject to the exceptions specified in paragraph (b) of this
section, ex parte communications include all communications, oral or
written (including electronic), between Commission decision-making
personnel, and the Postal Service or public stakeholders regarding
matters before the Commission.
(b) Ex parte communications do not include:
(1) Documents filed using the Commission's docketing system;
(2) Communications during the course of Commission meetings or
hearings, or other widely publicized events where the Commission
provides advance public notice of the event indicating the matter to be
discussed, the event is open to all persons participating in the matter
before the Commission, and a summary of the event is provided for the
record;
(3) Communications during the course of off-the-record technical
conferences associated with a matter before the Commission, or the pre-
filing conference for nature of service cases required by Sec. 3001.81
of this chapter, where advance public notice of the event is provided
indicating the matter to be discussed, and the event is open to all
persons participating in the matter before the Commission;
(4) Questions concerning Commission procedures, the status of a
matter before the Commission, or the procedural schedule of a pending
matter, where these issues are not contested matters before the
Commission; and
(5) Communications not material to the matter before the
Commission.
Sec. 3008.3 Definition of a matter before the Commission.
(a) A matter is before the Commission at such time as the
Commission may designate, but in no event later than the earlier of the
filing of a request to initiate a proceeding or the Commission noticing
a proceeding.
(b) A matter is also before the Commission at such time as the
person responsible for the communication has knowledge that a request
to initiate a proceeding is expected to be filed.
(c) The following explanations apply:
(1) A matter is no longer before the Commission upon the issuance
of the final order or decision in the docketed matter;
(2) A matter is again before the Commission upon the filing of a
request for reconsideration. The matter remains before the Commission
until resolution of the matter under reconsideration;
(3) A matter is again before the Commission upon the remand of a
Commission's final decision or order by an appellate court. The matter
remains before the Commission until resolution of the matter under
remand; and
(4) The mere potential that a request may be filed does not place a
matter before the Commission. An affirmative action announcing, or
actively preparing, an actual request with the intent to file within a
reasonable period of time must be present.
Sec. 3008.4 Definitions of persons subject to ex parte communication
rules.
(a) Commission decision-making personnel include:
(1) The Commissioners and their staffs;
(2) The General Counsel and staff;
(3) The Director of the Office of Accountability and Compliance and
staff;
(4) Contractors, consultants, and others hired by the Commission to
assist with the Commission's analysis and decision; and
(5) Any other employee who may reasonably be expected to be
involved in the decisional process.
(b) The Postal Service includes all Postal Service employees,
contractors, consultants, and others with an interest in a matter
before the Commission. Any interaction between the Postal Service and
Commission decision-making personnel concerning a matter before the
Commission expresses an interest in the matter before the Commission.
(c) Public stakeholders include all other persons not previously
described, with an interest in a matter before the Commission. This
includes the Commission non-decision-making personnel identified in
paragraph (d) of this section. Any interaction between a public
stakeholder and Commission decision-making personnel concerning a
matter before the Commission expresses an interest in the matter before
the Commission.
(d) Commission non-decision-making personnel include:
(1) All Commission personnel other than decision-making personnel;
(2) Commission personnel not participating in the decisional
process owing to the prohibitions of Sec. 3001.8 of this chapter
regarding no participation by investigative or prosecuting officers;
(3) The Public Representative and other Commission personnel
assigned to
[[Page 1935]]
represent the interests of the general public pursuant to 39 U.S.C. 505
in the specific case or controversy at issue (regardless of normally
assigned duties); and
(4) Contractors, consultants, and others hired by the Commission to
provide an independent analysis of issues before the Commission (and
Commission employees assigned thereto).
Sec. 3008.5 Prohibitions.
(a) Ex parte communications between Commission decision-making
personnel, and the Postal Service or public stakeholders is prohibited.
(b) Commission decision-making personnel shall not rely upon any
information obtained through ex parte communications.
(c) Paragraph (a) of this section does not constitute authority to
withhold information from Congress.
Sec. 3008.6 Required action upon ex parte communications.
(a) Commission decision-making personnel who receive ex parte
communications relevant to the merits of the proceeding shall decline
to listen to such communications and explain that the matter is pending
for determination. Any recipient thereof shall advise the communicator
that the communication will not be considered, and shall promptly and
fully inform the Commission in writing of the substance of and the
circumstances attending the communication, so that the Commission will
be able to take appropriate action.
(b) Commission decision-making personnel who receive, or who make
or knowingly cause to be made, ex parte communications prohibited by
this part shall promptly place, or cause to be placed, on the public
record of the proceeding:
(1) All such written communications;
(2) Memoranda stating the substance of all such oral
communications; and
(3) All written responses, and memoranda stating the substance of
all oral responses, to the materials described in (b)(1) and (2) of
this section.
(c) Requests for an opportunity to rebut, on the record, any facts
or contentions contained in an ex parte communication which have been
placed on the public record of the proceeding pursuant to paragraph (b)
of this section may be filed in writing with the Commission. The
Commission will grant such requests only where it determines that the
dictates of fairness so require. In lieu of actually receiving rebuttal
material, the Commission may in its discretion direct that the alleged
factual assertion and the proposed rebuttal be disregarded in arriving
at a decision.
Sec. 3008.7 Penalty for violation of ex parte communication rules.
(a) Upon notice of a communication knowingly made or knowingly
caused to be made by a participant in violation of Sec. 3008.5(a), the
Commission or presiding officer may, to the extent consistent with the
interests of justice and the policy of the underlying statutes, require
the participant to show cause why his/her claim or interest in the
proceeding should not be dismissed, denied, disregarded, or otherwise
adversely affected on account of such violation.
(b) The Commission may, to the extent consistent with the interests
of justice and the policy of the underlying statutes administered by
the Commission, consider a violation of Sec. 3008.5(a) sufficient
grounds for a decision adverse to a party who has knowingly committed
such violation or knowingly caused such violation to occur.
[FR Doc. 2016-00544 Filed 1-13-16; 8:45 am]
BILLING CODE 7710-FW-P
