[Code of Federal Regulations]
[Title 16, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR4.7]

[Page 92-94]
 
                     TITLE 16--COMMERCIAL PRACTICES
 
                   CHAPTER I--FEDERAL TRADE COMMISSION
 
PART 4_MISCELLANEOUS RULES--Table of Contents
 
Sec. 4.7  Ex parte communications.

    (a) Definitions. For purposes of this section, ex parte 
communication means an oral or written communication not on the public 
record with respect to which reasonable prior notice to all parties is 
not given, but it shall not include requests for status reports on any 
matter or proceeding.
    (b) Prohibited ex parte communications. While a proceeding is in 
adjudicative status within the Commission, except to the extent required 
for the disposition of ex parte matters as authorized by law:
    (1) No person not employed by the Commission, and no employee or 
agent of the Commission who performs investigative or prosecuting 
functions in adjudicative proceedings, shall make or knowingly cause to 
be made to any member of the Commission, or to the Administrative Law 
Judge, or to any other employee who is or who reasonably may be expected 
to be involved in the decisional process in the proceeding, an ex parte 
communciation relevant to the merits of that or a factually related 
proceeding; and
    (2) No member of the Commission, the Administrative Law Judge, or 
any other employee who is or who reasonably may be expected to be 
involved in the decisional process in the proceeding, shall make or 
knowingly cause to be made to any person not employed by the Commission, 
or to any employee or agent of the Commission who performs investigative 
or prosecuting functions in adjudicative proceedings, an ex parte 
communication relevant to the merits of that or a factually related 
proceeding.
    (c) Procedures. A Commissioner, the Administrative Law Judge or any 
other employee who is or who may reasonably be expected to be involved 
in the decisional process who receives or who make or knowingly causes 
to be made, a communication prohibited by paragraph (b) of this section 
shall promptly provide to the Secretary of the Commission:
    (1) All such written communications;

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    (2) Memoranda stating the substance of and circumstances of all such 
oral communications; and
    (3) All written responses, and memoranda stating the substance of 
all oral responses, to the materials described in paragraphs (c) (1) and 
(2) of this section. The Secretary shall make relevant portions of any 
such materials part of the public record of the Commission, pursuant to 
Sec. 4.9, and place them in the docket binder of the proceeding to 
which it pertains, but they will not be considered by the Commission as 
part of the record for purposes of decision unless introduced into 
evidence in the proceeding. The Secretary shall also send copies of the 
materials to or otherwise notify all parties to the proceeding.
    (d) Sanctions. (1) Upon receipt of an ex parte communication 
knowingly made or knowingly caused to be made by a party and prohibited 
by paragraph (b) of this section, the Commission, Administrative Law 
Judge, or other employee presiding over the proceeding may, to the 
extent consistent with the interests of justice and the policy of the 
underlying statutes administered by the Commission, require the party to 
show cause why his claim or interest in the proceeding should not be 
dismissed, denied, disregarded, or otherwise adversely affected on 
account of such violation. The Commission may take such action as it 
considers appropriate, including but not limited to, action under Sec. 
4.1(e)(2) and 5 U.S.C. 556(d).
    (2) A person, not a party to the proceeding who knowingly makes or 
causes to be made an ex parte communication prohibited by paragraph (b) 
of this section shall be subject to all sanctions provided herein if he 
subsequently becomes a party to the proceeding.
    (e) The prohibitions of this section shall apply in an adjudicative 
proceeding from the time the Commission votes to issue a complaint 
pursuant to Sec. 3.11, to conduct adjudicative hearings pursuant to 
Sec. 3.13, or to issue an order to show cause pursuant to Sec. 
3.72(b), or from the time an order by a U.S. court of appeals remanding 
a Commission decision and order for further proceedings becomes 
effective, until the time the Commission votes to enter its decision in 
the proceeding and the time permitted by Sec. 3.55 to seek 
reconsideration of that decision has elapsed. For purposes of this 
section, an order of remand by a U.S. court of appeals shall be deemed 
to become effective when the Commission determines not to file a 
petition for a writ of certiorari, or when the time for filing such a 
petition has expired without a petition having been filed, or when such 
a petition has been denied. If a petition for reconsideration of a 
Commission decision is filed pursuant to Sec. 3.55, the provisions of 
this section shall apply until the time the Commission votes to enter an 
order disposing of the petition. In addition, the prohibitions of this 
section shall apply with respect to communications concerning an 
application for stay filed with the Commission pursuant to Sec. 3.56 
from the time that the application is filed until its disposition.
    (f) The prohibitions of paragraph (b) of this section do not apply 
to a communication occasioned by and concerning a nonadjudicative 
function of the Commission, including such functions as the initiation, 
conduct, or disposition of a separate investigation, the issuance of a 
complaint, or the initiation of a rulemaking or other proceeding, 
whether or not it involves a party already in an adjudicative 
proceeding; preparations for judicial review of a Commission order; a 
proceeding outside the scope of Sec. 3.2, including a matter in state 
or federal court or before another governmental agency; a 
nonadjudicative function of the Commission, including but not limited to 
an obligation under Sec. 4.11 or a communication with Congress; or the 
disposition of a consent settlement under Sec. 3.25 concerning some or 
all of the charges involved in a complaint and executed by some or all 
respondents. The Commission, at its discretion and under such 
restrictions as it may deem appropriate, may disclose to the public or 
to respondent(s) in a pending adjudicative proceeding a communication 
made exempt by this paragraph from the prohibitions of paragraph (b) of 
this section, however, when the Commission determines that the interests 
of justice would be served by the disclosure. The prohibitions of 
paragraph (b) of this section also do not

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apply to a communication between any member of the Commission, the 
Administrative Law Judge, or any other employee who is or who reasonably 
may be expected to be involved in the decisional process, and any 
employee who has been directed by the Commission or requested by an 
individual Commissioner or Administrative Law Judge to assist in the 
decision of the adjudicative proceeding. Such employee shall not, 
however, have performed an investigative or prosecuting function in that 
or a factually related proceeding.

[42 FR 43974, Sept. 1, 1977, as amended at 44 FR 40637, July 12, 1979; 
46 FR 32435, June 23, 1981; 50 FR 53306, Dec. 31, 1985; 51 FR 36802, 
Oct. 16, 1986; 57 FR 10805, Mar. 31, 1992; 60 FR 37748, July 21, 1995; 
60 FR 67325, Dec. 29, 1995]