[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Proposed Rules]
[Pages 24434-24436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10352]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0 and 1
[GC Docket No. 10-43; FCC 11-11]
Commission's Ex Parte Rules and Other Procedural Rules
AGENCY: Federal Communications Commission.
ACTION: Further notice of proposed rulemaking
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SUMMARY: In this document the Commission seeks comment on amending the
rules to require that notices of ex parte discussions disclose real
parties-in-interest. The change was proposed because the existing rules
do not enable interested parties to know whose interests are being
represented when a contact is made. By requiring the disclosure of this
information the proposed amendment would increase transparency and
openness in Commission proceedings. The FNPRM was adopted in
conjunction with a Report and Order amending the ex parte rules, which
is published elsewhere in this Federal Register.
DATES: Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, 47 CFR 1.415, 1.419, interested parties may file comments on or
before June 16, 2011 and reply comments on or before July 18, 2011.
Written comments on the Paperwork Reduction Act proposed information
collection requirements must be submitted by the public, Office of
Management and Budget (OMB), and other interested parties on or before
July 1, 2011.
ADDRESSES: You may submit comments, identified by GC Docket No. 10-43,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
In addition to filing comments with the Office of the Secretary, a
copy of any
[[Page 24435]]
comments on the Paperwork Reduction Act information collection
requirements contained herein should be submitted to Leslie F. Smith,
Federal Communications Commission, Room 1-C216, 445 12th Street, SW,
Washington, DC 20554, or send an e-mail to [email protected]. and to Nicholas
A. Fraser, Office of Management and Budget, via e-mail to [email protected] or via fax at (202) 395-5167.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Joel Kaufman, Chief, Administrative
Law Division, Office of General Counsel, (202) 418-1758 or
[email protected]. For additional information concerning the
Paperwork Reduction Act information collection requirements contained
in this document, send an e-mail to [email protected] or contact Leslie F.
Smith, (202) 418-0217 or [email protected].
SUPPLEMENTARY INFORMATION: Comments may be filed using: (1) The
Commission's Electronic Comment Filing System (ECFS), (2) the Federal
Government's eRulemaking Portal, or (3) by filing paper copies. See
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121
(1998).
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours
are 8 a.m. to 7 p.m. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes must be disposed of before
entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an e-mail to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
In this FNPRM adopted February 1, 2011 and released February 2,
2011, the Commission seeks comment on requiring anyone making an ex
parte presentation to disclose the identity of any real party in
interest to the issues discussed. At times a party making an ex parte
contact may be representing the interests of another undisclosed party,
or the presenter's interest in the proceeding may not be entirely
clear. The Commission found that a disclosure requirement that
addresses these problems without imposing undue burdens on the
disclosing party, or requiring duplicative filing of generally-
available information, would serve the public interest. The FNPRM
solicits comment on what type of disclosure rule would balance those
two interests, and how it should be applied. Comment is sought on the
suitability of using existing judicial disclosure rules, such as
Supreme Court Rules 29.6 and 37.6, or Rule 26.1 of the Rules for the
U.S. Court of Appeals for the DC Circuit. Comment is also sought on the
possible use of the Lobbying Disclosure Act as a model. Comment is
requested on the range of proceedings to which new disclosure rules
should apply, and whether disclosure requirements should apply to trade
associations and non-profit entities. Finally, the Commission asks a
number of logistical questions regarding disclosure. Comment is sought
on whether disclosure should be required when the information to be
disclosed can be found in existing Commission records or on the party's
Web site. If reliance were to be placed on information already in the
Commission's records, how would the Commission ensure its information
is up-to-date and easily accessible? Comment is requested on whether
the Commission should create a single electronically accessible source
for all disclosure statements, and how often filers should be required
to update this information.
Regulatory Flexibility Act. Our proposed action does not require
notice and comment, and therefore falls outside the Regulatory
Flexibility Act of 1980, as amended, 5 U.S.C. 605(b), and requires no
initial or final regulatory flexibility analysis under Section 604 of
that Act, 5 U.S.C. 604. We nevertheless note that we anticipate that
the alternatives proposed in the FNPRM will not have a significant
economic impact on a substantial number of small entities or impose
significant costs on parties to Commission proceedings. We will,
however, send a copy of the FNPRM to the Chief Counsel of Advocacy of
the Small Business Administration.
Initial Paperwork Reduction Act of 1995 Analysis. This document
contains proposed information collection requirements. The Commission,
as part of its continuing effort to reduce paperwork burdens, invites
the general public and the Office of Management and Budget (OMB) to
comment on the information collection requirements contained in this
document, as required by the Paperwork Reduction Act of 1995, Public
Law 104-13. Public and agency comments are due July 1, 2011.
Comments should address: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology; and (e)
ways to further reduce the information collection burden on small
business concerns with fewer than 25 employees. In addition, pursuant
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might
further reduce the information collection burden for small business
concerns with fewer than 25 employees.
OMB Control Number: 3060-0430.
Title: Section 1.1206, Permit-but-Disclose Proceedings.
Type of Review: Revision of currently approved collection.
Respondents: Individuals or households; Business or other for-
profits; Not-for-profit institutions; Federal Government; and State,
local or tribal governments.
[[Page 24436]]
Number of Respondents and Responses: 11,500 respondents; 34,500
responses.
Estimated time per Response: 45 minutes (0.75 hours).
Obligation to Respond: Required to obtain or retain benefits.
Frequency of Response: On-occasion reporting requirements; Third
party disclosure.
Total Annual Burden: 25,875 hours.
Total Annual Cost: None.
Privacy Act Impact Assessment: No impacts.
Nature and Extent of Confidentiality: The Commission is not
requesting that respondents submit confidential information; however,
consistent with the Commission's rules on confidential treatment of
submissions, under 47 CFR 0.459, a presenter may request confidential
treatment of ex parte presentations. In addition, the Commission will
permit parties to remove metadata containing confidential or privileged
information, and the Commission will also not require parties to file
electronically ex parte notices that contain confidential information.
The Commission will, however, require a redacted version to be filed
electronically at the same time the paper filing is submitted, and that
the redacted version must be machine-readable whenever technically
possible.
Needs and Uses: The Commission's rules, under 47 CFR 1.1206,
require that a public record be made of ex parte presentations (i.e.,
written presentations not served on all parties to the proceeding or
oral presentations as to which all parties have not been given notice
and an opportunity to be present) to decision-making personnel in
``permit-but-disclose'' proceedings, such as notice-and-comment
rulemakings and declaratory ruling proceedings. Persons making such
presentations must file two copies of written presentations and two
copies of memoranda reflecting new data or arguments in oral
presentations no later than the next business day after the
presentation; alternatively, in proceedings in which electronic filing
is permitted, a copy may be filed electronically.
On February 2, 2011, the FCC released a Report and Order and
Further Notice of Proposed Rulemaking, CG Docket Number 10-43, FCC 11-
11, which amends and reforms the Commission's rules on ex parte
presentations (47 CFR 1.1206(b)(2)) made in the course of Commission
rulemakings and other permit-but-disclose proceedings. The
modifications to the existing rules adopted in this Report and Order
address these problems by requiring that parties file more descriptive
summaries of their ex parte contacts, by ensuring that other parties
and the public have an adequate opportunity to review and respond to
information submitted ex parte, and by improving the FCC's oversight
and enforcement of the ex parte rules. The modified ex parte rules
provide as follows: (1) Ex parte notices will be required for all oral
ex parte presentations in permit-but-disclose proceedings, not just for
those presentations that involve new information or arguments not
already in the record; (2) If an oral ex parte presentation is limited
to material already in the written record, the notice must contain
either a succinct summary of the matters discussed or a citation to the
page or paragraph number in the party's written submission(s) where the
matters discussed can be found; (3) Notices for all ex parte
presentations must include the name of the person(s) who made the ex
parte presentation as well as a list of all persons attending or
otherwise participating in the meeting at which the presentation was
made; (4) Notices of ex parte presentations made outside the Sunshine
period must be filed within two business days of the presentation; (5)
The Sunshine period will begin on the day (including business days,
weekends, and holidays) after issuance of the Sunshine notice, rather
than when the Sunshine Agenda is issued (as the current rules provide);
(6) If an ex parte presentation is made on the day the Sunshine notice
is released, an ex parte notice must be submitted by the next business
day, and any reply would be due by the following business day. If a
permissible ex parte presentation is made during the Sunshine period
(under an exception to the Sunshine period prohibition), the ex parte
notice is due by the end of the same day on which the presentation was
made, and any reply would need to be filed by the next business day.
Any reply must be in writing and limited to the issues raised in the ex
parte notice to which the reply is directed; (7) Commissioners and
agency staff may continue to request ex parte presentations during the
Sunshine period, but these presentations should be limited to the
specific information required by the Commission; (8) Ex parte notices
must be submitted electronically in machine-readable format. PDF images
created by scanning a paper document may not be submitted, except in
cases in which a word-processing version of the document is not
available. Confidential information may continue to be submitted by
paper filing, but a redacted version must be filed electronically at
the same time the paper filing is submitted. An exception to the
electronic filing requirement will be made in cases in which the filing
party claims hardship. The basis for the hardship claim must be
substantiated in the ex parte filing; (9) To facilitate stricter
enforcement of the ex parte rules, the Enforcement Bureau is authorized
to levy forfeitures for ex parte rule violations; (10) Copies of
electronically filed ex parte notices must also be sent electronically
to all staff and Commissioners present at the ex parte meeting so as to
enable them to review the notices for accuracy and completeness. Filers
may be asked to submit corrections or further information as necessary
for compliance with the rules. Where staff believes there are instances
of substantial or repeated violations of the ex parte rules, staff
should report such to the General Counsel; and (11) Minor conforming
and clarifying rule changes proposed in the Notice are adopted. The
only change entailing increased information collection is the
requirement that parties making permissible ex parte presentations in
restricted proceedings must file an ex parte notice.
The information is used by parties to permit-but-disclose
proceedings, including interested members of the public, to respond to
the arguments made and data offered in the presentations. The responses
may then be used by the Commission in its decision-making. The
availability of the ex parte materials ensures that the Commission's
decisional processes are fair, impartial, and comport with the concept
of due process in that all interested parties can know of and respond
to the arguments made to the decision-making officials.
Currently, persons making ex parte presentations have no obligation
to disclose whether the person making the presentation represents a
real party-in-interest whose identity has not been disclosed. In this
FNPRM, the Commission proposed to require the disclosure of the
identity of real parties-in-interest, which would further the goal of
openness and transparency in the Commission decision making process.
Statutory Authority: 47 U.S.C. 154(i), 154(j), and 303(r).
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2011-10352 Filed 4-29-11; 8:45 am]
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