Restrictions on Ex Parte Communications

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SUBCHAPTER A— ORGANIZATION, PROCE­ DURES, AND RULES OF PRACTICE PART MISCELLANEOUS RULES Restrictions on Ex Parte Communications AGENCY: Federal Trade Commission. ACTION: Final rule.

SUMMARY : The rule amends the Com­ mission’s Rules of Practice to reflect the provisions of the Government in the Sunshine Act, and to clarify the cover­ age of the rule with respect to commu­ nications between Commission decision­ makers and Commission staff. EFFECTIVE DATE: September 1, 1977. FOR FURTHER INFORMATION CON­ TACT:

Jerome A. Untie, Office of the General Counsel, Federal Trade Commission, Washington, D.C. 20580 (202-523^- 3487).

SUPPLEMENTARY INFORMATION:

The Commission published a notice of proposed rulemaking at 42 FR 33041 (June 29, 1977) inviting comments to be filed by July 29, 1977 on a proposed amendment of § 4.7 of the Commission’s Rules of Practice. The amendments re­ flect the provisions of section 4 of the Government in the Sunshine Act, Pub. L. 94-409. No comments were received. Accordingly, 16 CFR 4.7 is amended to read as follows:

§ 4.7 Ex Parte Communications. (a) Definitions. For purposes of this section, _ “ex parte communications”

means an oral or written communica­ tion not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not in­ clude requests for status reports on any matter or proceeding.

(b) Prohibited ex parte communica­ tions. While a proceeding is in adjudi­ cative status within the Commission, ex­ cept to the extent required for the disposition of ex parte matters as au- FEDERAL REGISTER, VOL. «2, NO. 170— THURSDAY, SEPTEMBER 1, 1977

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RULES AND REGULATIONS 43975 thorized by law, (1) no person not em­ ployed by the Commission, and no employee or agent of the Commis­ sion 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 Ad­ ministrative Law Judge, or to any other employee who is or who reasonably may be expected to be involved in the deci­ sional process in the proceeding, an ex parte communication relevant to the merits of that or a factually related pro­ ceeding; and (2) no member of the Com­ mission, the Administrative Law Judge, or any other employee 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 Com­ mission, or to any employee or agent of the Commission who performs investiga­ tive or prosecuting functions in adjudi­ cative proceedings, an ex parte commu­ nication relevant to the merts 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 deci­ sional procès who receives or who makes or knowingly causes to be made, a com­ munication prohibited by paragraph (b) of this section shall promptly provide to the Secretary of the Commission : (1) All such written communications; (2) mem­ oranda stating the substance of and cir­ cumstances of all such oral communica­ tions; and (3) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (1) and (2) of this subsection. The Secretary shall make relevant por­ tions of any such materials part of the public record of the Commission, pur­ suant to Section 4.8, 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 un­ less introduced into evidence in the pro­ ceeding. 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, Admin­ istrative Law Judge, or other employee presiding over the proceeding may, to the extent consistent with the interests of justice and the policy of the under­ lying statutes administered by the Com­ mission, require the party to show cause why his claim or interest in the proceed­ ing should not be dismissed, denied, dis­ regarded, or otherwise adversely affected on account of such violation. The Com­ mission may take such action as it con­ siders appropriate, including but not limited to, action under Section 4.1 (e) (2) and 5 U.S.C» Section 556(d). (2) A person, not a party to the pro­ ceeding who knowingly makes or causes to be made an ex parte communication prohibited by paragraph (b) of this sec­ tion shall be subject to all sanctions pro­ vided herein if he subsequently^becomes a party to the proceeding. (e) The prohibitions of this section shall apply from the time the Commis­ sion votes to issue a complaint in an adjudicative proceeding or votes to con­ duct adjudicative hearings on issues arising in rulemaking proceedings under the Fair Packaging and Labeling Act. (f ) The prohibitions of paragraph (b) of this section do not apply to communi­ cations between Commissioners and em­ ployees or agents of the Commission who perform investigative or prosecutorial functions in adjudicative proceedings, when such communications are occa­ sioned by and concern: (1) the initia­ tion, conduct or disposition of a separate investigation or adjudicative proceeding, whether or not it involves a party already in an adjudicative proceeding; (2) pro­ ceedings outside the scope of Section 3.2, including matters in state or federal courts and before other governmental agencies; (3) nonadjudicative functions of the Commission, including but not limited to obligations under § 4.11 or communictions with Congress; or (4) the disposition of a consent settlement under § 3.25 executed by some but not all re­ spondents. Provided however, That to the extent such communications relate to a fact in issue in a pending adjudicative proceeding, such portions will be placed in the docket binder of the proceeding to which it pertains. The prohibitions of paragraph (b) of this section also do not aply to communications between Com­ missioners, the Administrative Law Judge, or any other employee who is in­ volved in the decisional process, and any employee who has been directed by the Commission or requested by an individ­ ual Commissioner or Administrative Law Judge, to assist in the decision of an ad­ judicative proceeding. Such employee shall not, however, have performed an investigative or prosecutorial function in that or a factually related proceeding. By direction of the Commission. J ames A. T obin, Acting Secretary.

[FR Doc.77-25673 Filed 8-31-77;8:45 am]