81 FR 1931 - Ex Parte Communications
POSTAL REGULATORY COMMISSION Federal Register Volume 81, Issue 9 (January 14, 2016)
Federal Register Volume 81, Issue 9 (January 14, 2016)
| Page Range | 1931-1935 | |
| FR Document | 2016-00544 |
[Federal Register Volume 81, Number 9 (Thursday, January 14, 2016)] [Proposed Rules] [Pages 1931-1935] From the Federal Register Online [www.thefederalregister.org] [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 The proposed rules amend existing Commission rules concerning ex parte communications \1\ and obsolete rules no longer applicable under the PAEA are removed.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
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§ 91.855 Entry and nonaddition rule. POSTAL REGULATORY COMMISSION Federal Regulations (CFR). This
* * * * * rulemaking proposes to replace, in their
39 CFR Parts 3000, 3001, and 3008 entirety, the rules currently appearing at
(a) The airplane complies with Stage
[Docket No. RM2016–4; Order No. 3005] 39 CFR, part 3000, subpart B. This
3, Stage 4, or Stage 5 noise levels. rulemaking also proposes to reorganize
* * * * * Ex Parte Communications the rules currently appearing at
■ 13. Amend § 91.858 by revising § 3001.7, including a definition
AGENCY: Postal Regulatory Commission. appearing at § 3001.5(o), and moves this
paragraph (a)(2) to read as follows:
ACTION: Proposed rulemaking. material to a new 39 CFR part 3008.
§ 91.858 Special flight authorizations for
non-revenue Stage 2 operations. SUMMARY: The Commission is proposing II. Background
rules which amend the existing Applying ex parte communications
(a) * * * Commission rules concerning ex parte principles promotes transparency and
(2) Obtain modifications to meet Stage communications. The proposed rules openness in government concerning its
3, Stage 4, or Stage 5 noise levels. are brought up to date to be consistent interactions with public stakeholders.
with the recommended approach to See Recommendation 2014–4 at 2.
* * * * *
agency treatment of ex parte These principles help prevent the
■ 14. Revise § 91.859 to read as follows: communications and reorganized for perception that an entity may gain an
clarity. The Commission invites public unfair advantage over another by
§ 91.859 Modification to meet Stage 3 or
comment on the proposed rules. communicating inappropriately with
Stage 4 noise levels.
DATES: Comments are due: February 16, the Commission on an ex parte basis. Id.
For an airplane subject to § 91.801(c) 2016. Reply comments are due: at 3. These principles also reduce the
of this subpart and otherwise prohibited February 29, 2016. risk that Commission decisions will be
from operation to or from an airport in FOR FURTHER INFORMATION CONTACT: challenged in court based on alleged
the contiguous United States by David A. Trissell, General Counsel, at reliance on information obtained
§ 91.855, any person may apply for a 202–789–6820. through inappropriate ex parte
special flight authorization for that SUPPLEMENTARY INFORMATION: communications. Sferra-Bonistalli
airplane to operate in the contiguous Report at 77–78.
United States for the purpose of Table of Contents By statute, the Commission is only
obtaining modifications to meet Stage 3, I. Introduction required to place restrictions on ex parte
Stage 4, or Stage 5 noise levels. II. Background communications where the Commission
III. Section-by-Section Analysis of Proposed must provide an opportunity for hearing
■ 15. Revise § 91.881 to read as follows: Rule Changes on the record pursuant to 5 U.S.C. 556–
IV. Internal Policy and Library Reference 557. Under the PAEA, this is limited to
§ 91.881 Final compliance: Civil subsonic
V. Public Representative nature of postal service cases pursuant
jet airplanes weighing 75,000 pounds or VI. Solicitation of Comments
less. to 39 U.S.C. 3661.
VII. Ordering Paragraphs Historically, the Commission’s
Except as provided in § 91.883, after I. Introduction regulations also extended restrictions on
December 31, 2015, a person may not ex parte communications to post office
operate to or from an airport in the This rulemaking is initiated by the
appeal cases pursuant 39 U.S.C.
Postal Regulatory Commission
contiguous United States a civil 404(d)(5,6) and complaint cases
(Commission) to fulfill its
subsonic jet airplane subject to pursuant to 39 U.S.C. 3662. The
responsibilities under the Postal
§ 91.801(e) of this subpart that weighs Commission views this as appropriate
Accountability and Enhancement Act
less than 75,000 pounds unless that because of the potential impact on
(PAEA), Public Law 109–435, 120 Stat.
airplane has been shown to comply with participants and their associated rights
3218 (2006). The proposed rules amend
Stage 3, Stage 4, or Stage 5 noise levels. that may result under these types of
existing Commission rules concerning
proceedings. The proposed rules
■ 16. Amend § 91.883 by revising ex parte communications 1 and obsolete
continue to impose restrictions on ex
paragraph (a)(3) to read as follows: rules no longer applicable under the
parte communications for the same
PAEA are removed. Existing rules are
§ 91.883 Special flight authorizations for statutorily required and historical
brought up to date to be consistent with
jet airplanes weighing 75,000 pounds or proceedings described above. See
the recommended approach to agency
less. proposed 39 CFR part 3008.
treatment of ex parte communications 2 Many other types of proceedings
(a) * * * and are further reorganized for clarity. come before the Commission other than
The ex parte communications rules
(3) To obtain modifications to the nature of service, post office closing,
currently appear in three areas of the
airplane to meet Stage 3, Stage 4, or and complaint proceedings that are
Commission’s applicable Code of
Stage 5 noise levels. mentioned above.3 But there is no
* * * * * 1 Rules concerning ex parte communications
statutory requirement to impose ex parte
control all interactions, oral or in writing (including communications restrictions in these
Issued under authority provided by 49 electronic), between Commission decision-making other proceeding types. However, the
U.S.C. 44715 in Washington, DC, on personnel, and the United States Postal Service Commission believes that the
mstockstill on DSK4VPTVN1PROD with PROPOSALS
December 21, 2015. (Postal Service) or public stakeholders in matters
aforementioned ex parte principles
before the Commission.
Curtis Holsclaw, 2 See Esa L. Sferra-Bonistalli, Ex Parte suggest that all proceedings before the
Acting Executive Director, Office of Communications in Informal Rulemaking, May 1,
Environment and Energy. 2014, (prepared for consideration of the 3 For example, the Commission administers the
Administrative Conference of the United States) Annual Compliance Report (ACR), Competitive
[FR Doc. 2015–32500 Filed 1–13–16; 8:45 am]
(Sferra-Bonistalli Report); Administrative Product (CP), Mail Classification (MC), Market Test
BILLING CODE 4910–13–P Conference of the United States, Administrative (MT), Public Inquiry (PI), Rate/Request (R),
Conference Recommendation 2014–4, June 6, 2014, Rulemaking (RM), and Annual Tax Computation (T)
(Recommendation 2014–4). proceedings.
VerDate Sep<11>2014 16:34 Jan 13, 2016 Jkt 238001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\14JAP1.SGM 14JAP1](https://thefederalregister.org/doc/81_FR_1940/page/1.svg)
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when the Commission notices a penalties for violations of the ex parte Commission’s rules governing ex parte
proceeding. It also imposes ex parte communications rules. This includes communications.
communication restrictions when there providing possible violators of the rules 2. The Commission proposes to
is an affirmative action announcing, or with an opportunity to show cause why amend existing ex parte
active preparation of, an actual request their claim should not be dismissed, communications rules appearing at 39
with intent to file in a reasonable period denied, disregarded, or otherwise CFR part 3000, subpart B, and to move
of time. The effect of this rule is to limit adversely affect the outcome of the and amend existing ex parte
the application of the ex parte proceeding. communications rules previously
communications rules to exclude most, appearing at § 3001.5(o) and § 3001.7
if not all, communications until a matter IV. Internal Policy and Library into new 39 CFR part 3008.
has actually been initiated by an outside Reference 3. Pursuant to 39 U.S.C. 505, the
entity or noticed by the Commission (or Library Reference PRC–LR–RM2016– Commission appoints Patricia A.
either of these actions is imminent). 4/1 is a copy of the Commission’s Gallagher to serve as an officer of the
Section 3008.4 Definitions of written employee policy regarding ex Commission (Public Representative) to
persons subject to ex parte parte communications. The Commission represent the interests of the general
communications rules. Proposed intends to adopt this policy to further its public in these proceedings.
§ 3008.4 defines ‘‘Commission decision- goal of transparency and openness in all 4. Interested persons may submit
making personnel,’’ the ‘‘Postal dockets. Though ex parte restrictions are initial comments no later than 30 days
Service,’’ ‘‘public stakeholders,’’ and only statutorily required by regulation from the date of publication of this
‘‘Commission non-decision-making for nature of service, post office appeals, Notice in the Federal Register.
personnel,’’ for the purposes of the ex and complaint matters, the Commission 5. Reply Comments may be filed no
parte communications rules. The seeks to alleviate any real or perceived later than 45 days from the date of
proposed rule incorporates the unfairness in its communications with publication of this Notice in the Federal
definitions of ‘‘Commission decision- stakeholders in all cases and thus Register.
making personnel,’’ and ‘‘Commission creates this new ex parte policy. 6. The Secretary shall arrange for
non-decision-making personnel,’’ from The policy will be posted to the publication of this Notice in the Federal
existing § 3001.7(a), and broadens the Commission Web site at www.prc.gov if Register.
definition to include contractors, and when the Commission adopts final By the Commission.
consultants, and others hired to assist rules pursuant to this proceeding. Stacy L. Ruble,
with analysis and decisions. The Although the attached employee policy Secretary.
proposed rule, for the first time, will not be binding on persons outside
includes definitions for Postal Service of the Commission, public disclosure of List of Subjects
personnel and other public the document will better inform outside
stakeholders. 39 CFR Part 3000
entities concerning the Commission’s
Section 3008.5 Prohibitions. treatment of ex parte communications in Conflicts of interests, Ex parte
Proposed § 3008.5(a) imposes a general all proceeding types that may come communications.
prohibition of ex parte communications before the Commission. The 39 CFR Part 3001
between Commission decision-making Commission welcomes public comment
personnel and the Postal Service or on the policy to identify problems and Administrative practice and
other public stakeholders. The proposed to ensure consistency with the proposed procedure, Confidential business
rule adds that Commission decision- rules discussed herein and with the information, Ex parte communications,
making personnel are prohibited from Commission’s regulatory scheme as a Freedom of information, Sunshine Act.
relying upon any information obtained whole. 39 CFR Part 3008
through ex parte communications. See
proposed § 3008(b). Finally, proposed V. Public Representative Administrative practice and
§ 3008(c) clarifies that proposed Pursuant to 39 U.S.C. 505, Patricia A. procedure, Ex parte communications.
§ 3008(a) does not constitute authority Gallagher is appointed the officer of the For the reasons discussed in the
to withhold information from Congress. Commission (Public Representative) to preamble, the Commission proposes to
Section 3008.6 Required action represent the interests of the general amend chapter III of title 39 of the Code
upon ex parte communications. public in the captioned docket. of Federal Regulations as follows:
Proposed § 3008.6 mirrors existing
§ 3001.7(b)(3) through (5) setting forth VI. Solicitation of Comments PART 3000—STANDARDS OF
the actions required when ex parte Interested persons are invited to CONDUCT
communications occur. Three steps are comment on the rules proposed in this
outlined. Commission decision-making ■ 1. The authority citation for part 3000
rulemaking. Interested persons may also is revised to read as follows:
personnel are first required to decline to comment on the attached internal
listen to ex parte communications. If ex Commission policy concerning ex parte Authority: 39 U.S.C. 503; 504, 3603; E.O.
parte communications occur regardless communications to ensure consistency 12674; 54 FR 15159; 3 CFR,1989 Comp., p.
of efforts to prevent such 215, as modified by E.O. 12731, 56 FR 42547,
with the proposed rules. Comments are 3 CFR, 1990 Comp., p. 396, 5 CFR parts 2634
communications, the communications due no later than 30 days, and reply and 2635.
must be disclosed. Finally, under
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comments no later than 45 days, after
certain circumstances, there may be an publication of this Notice in the Federal ■ 2. Revise subpart B of part 3000 to
opportunity for others to rebut the Register. read as follows:
contents of the ex parte
communications. VII. Ordering Paragraphs Subpart B—Ex Parte Communications
Section 3008.7 Penalty for violation It is ordered: Sec.
of ex parte communication rules. 1. The Commission establishes Docket 3000.735–501 Ex parte communications
Proposed § 3008.7 mirrors existing No. RM2016–4 for the purpose of prohibited.
§ 3001.7(d)(1) and (2), outlining the considering changes to the 3000.735–502 [Reserved]
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![1934 Federal Register / Vol. 81, No. 9 / Thursday, January 14, 2016 / Proposed Rules
§ 3000.735–501 Ex parte communications post office conducted pursuant to 39 final order or decision in the docketed
prohibited. U.S.C. 404(d)(5). matter;
(a) The Commission maintains a (d) Rate or service complaints (2) A matter is again before the
written employee policy regarding ex conducted pursuant to 39 U.S.C. 3662. Commission upon the filing of a request
parte communications applicable to all (e) Any other matter in which the for reconsideration. The matter remains
interactions, oral or in writing Commission, in its discretion, before the Commission until resolution
(including electronic), between determines that it is appropriate to of the matter under reconsideration;
Commission decision-making apply the rules of this section. (3) A matter is again before the
personnel, and the United States Postal Commission upon the remand of a
§ 3008.2 Definition of ex parte Commission’s final decision or order by
Service or public stakeholders in
communications. an appellate court. The matter remains
matters before the Commission. It is the
responsibility of all Commission (a) Subject to the exceptions specified before the Commission until resolution
personnel to comply with this policy, in paragraph (b) of this section, ex parte of the matter under remand; and
including the responsibility to inform communications include all (4) The mere potential that a request
persons not employed by the communications, oral or written may be filed does not place a matter
Commission of this policy when (including electronic), between before the Commission. An affirmative
required. The policy is available for Commission decision-making action announcing, or actively
review on the Commission’s Web site at personnel, and the Postal Service or preparing, an actual request with the
www.prc.gov. public stakeholders regarding matters intent to file within a reasonable period
(b) Additional ex parte before the Commission. of time must be present.
communications requirements, (b) Ex parte communications do not
§ 3008.4 Definitions of persons subject to
applicable to specific docket types, are include:
ex parte communication rules.
described in part 3008 of this chapter. (1) Documents filed using the
Commission’s docketing system; (a) Commission decision-making
§ 3000.735–502 [Reserved] (2) Communications during the course personnel include:
(1) The Commissioners and their
of Commission meetings or hearings, or
PART 3001—RULES OF PRACTICE staffs;
other widely publicized events where (2) The General Counsel and staff;
AND PROCEDURE the Commission provides advance (3) The Director of the Office of
■ 3. The authority citation of part 3001 public notice of the event indicating the Accountability and Compliance and
continues to read as follows: matter to be discussed, the event is open staff;
to all persons participating in the matter (4) Contractors, consultants, and
Authority: 39 U.S.C. 404(d); 503; 504; before the Commission, and a summary
3661. others hired by the Commission to assist
of the event is provided for the record; with the Commission’s analysis and
§ 3001.5 [Amended] (3) Communications during the course decision; and
■ 4. Amend § 3001.5 by removing and of off-the-record technical conferences (5) Any other employee who may
reserving paragraph (o). associated with a matter before the reasonably be expected to be involved
Commission, or the pre-filing in the decisional process.
§ 3001.7 [Removed and reserved] conference for nature of service cases (b) The Postal Service includes all
■ 5. Remove and reserve § 3001.7. required by § 3001.81 of this chapter, Postal Service employees, contractors,
■ 6. Add part 3008 to read as follows: where advance public notice of the consultants, and others with an interest
event is provided indicating the matter in a matter before the Commission. Any
PART 3008—EX PARTE to be discussed, and the event is open interaction between the Postal Service
COMMUNICATIONS to all persons participating in the matter and Commission decision-making
before the Commission; personnel concerning a matter before
Sec.
3008.1 Applicability.
(4) Questions concerning Commission the Commission expresses an interest in
3008.2 Definition of ex parte procedures, the status of a matter before the matter before the Commission.
communications. the Commission, or the procedural (c) Public stakeholders include all
3008.3 Definition of a matter before the schedule of a pending matter, where other persons not previously described,
Commission. these issues are not contested matters with an interest in a matter before the
3008.4 Definitions of persons subject to ex before the Commission; and Commission. This includes the
parte communication rules. (5) Communications not material to Commission non-decision-making
3008.5 Prohibitions. the matter before the Commission. personnel identified in paragraph (d) of
3008.6 Required action upon ex parte this section. Any interaction between a
communication. § 3008.3 Definition of a matter before the
3008.7 Penalty for violation of ex parte
public stakeholder and Commission
Commission.
communication rules. decision-making personnel concerning a
(a) A matter is before the Commission matter before the Commission expresses
Authority: 39 U.S.C. 404(d)(5); 503; 504; at such time as the Commission may an interest in the matter before the
3661(c); 3662. designate, but in no event later than the Commission.
earlier of the filing of a request to (d) Commission non-decision-making
§ 3008.1 Applicability. initiate a proceeding or the Commission personnel include:
(a) The rules in this section are noticing a proceeding.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
(1) All Commission personnel other
applicable to the Commission (b) A matter is also before the than decision-making personnel;
proceedings identified in paragraphs (b) Commission at such time as the person (2) Commission personnel not
through (e) of this section. responsible for the communication has participating in the decisional process
(b) The nature of postal service knowledge that a request to initiate a owing to the prohibitions of § 3001.8 of
proceedings conducted pursuant to 39 proceeding is expected to be filed. this chapter regarding no participation
U.S.C. 3661(c). (c) The following explanations apply: by investigative or prosecuting officers;
(c) The appeals of Postal Service (1) A matter is no longer before the (3) The Public Representative and
decisions to close or consolidate any Commission upon the issuance of the other Commission personnel assigned to
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![Federal Register / Vol. 81, No. 9 / Thursday, January 14, 2016 / Proposed Rules 1935
represent the interests of the general factual assertion and the proposed ADDRESSES: Comments may be mailed to
public pursuant to 39 U.S.C. 505 in the rebuttal be disregarded in arriving at a Ms. Mary Stanton, Chief, State
specific case or controversy at issue decision. Implementation B, Ozone and
(regardless of normally assigned duties); Infrastructure Section (6MM–AB),
§ 3008.7 Penalty for violation of ex parte
and Environmental Protection Agency, 1445
communication rules.
(4) Contractors, consultants, and Ross Avenue, Suite 1200, Dallas, Texas
others hired by the Commission to (a) Upon notice of a communication 75202–2733. Comments may also be
provide an independent analysis of knowingly made or knowingly caused to submitted electronically or through
issues before the Commission (and be made by a participant in violation of hand delivery/courier by following the
Commission employees assigned § 3008.5(a), the Commission or detailed instructions in the ADDRESSES
thereto). presiding officer may, to the extent section of the direct final rule located in
consistent with the interests of justice the rules section of this Federal
§ 3008.5 Prohibitions. and the policy of the underlying Register.
(a) Ex parte communications between statutes, require the participant to show
cause why his/her claim or interest in FOR FURTHER INFORMATION CONTACT:
Commission decision-making
personnel, and the Postal Service or the proceeding should not be dismissed, Colin Schwartz, (214) 665–7262,
public stakeholders is prohibited. denied, disregarded, or otherwise Schwartz.Colin@epa.gov.
(b) Commission decision-making adversely affected on account of such SUPPLEMENTARY INFORMATION: In the
personnel shall not rely upon any violation. final rules section of this Federal
information obtained through ex parte (b) The Commission may, to the Register, the EPA is approving the
communications. extent consistent with the interests of State’s SIP submittal as a direct rule
(c) Paragraph (a) of this section does justice and the policy of the underlying without prior proposal because the
not constitute authority to withhold statutes administered by the Agency views this as noncontroversial
information from Congress. Commission, consider a violation of submittal and anticipates no adverse
§ 3008.5(a) sufficient grounds for a comments. A detailed rationale for the
§ 3008.6 Required action upon ex parte decision adverse to a party who has approval is set forth in the direct final
communications. knowingly committed such violation or rule. If no relevant adverse comments
(a) Commission decision-making knowingly caused such violation to are received in response to this action
personnel who receive ex parte occur. no further activity is contemplated. If
communications relevant to the merits [FR Doc. 2016–00544 Filed 1–13–16; 8:45 am] the EPA receives relevant adverse
of the proceeding shall decline to listen comments, the direct final rule will be
BILLING CODE 7710–FW–P
to such communications and explain withdrawn and all public comments
that the matter is pending for received will be addressed in a
determination. Any recipient thereof subsequent final rule based on this
ENVIRONMENTAL PROTECTION
shall advise the communicator that the proposed rule. The EPA will not
AGENCY
communication will not be considered, institute a second comment period. Any
and shall promptly and fully inform the 40 CFR Part 52 parties interested in commenting on this
Commission in writing of the substance action should do so at this time.
of and the circumstances attending the [EPA–R06–OAR–2015–0647; FRL–9941–20– For additional information, see the
communication, so that the Commission Region 6] direct final rule which is located in the
will be able to take appropriate action. rules section of this Federal Register.
Approval and Promulgation of Air
(b) Commission decision-making Dated: December 30, 2015.
Quality Implementation Plans;
personnel who receive, or who make or
Arkansas; Crittenden County Base Samuel Coleman,
knowingly cause to be made, ex parte
Year Emission Inventory Acting Regional Administrator, Region 6.
communications prohibited by this part
shall promptly place, or cause to be AGENCY: Environmental Protection [FR Doc. 2016–00560 Filed 1–13–16; 8:45 am]
placed, on the public record of the Agency (EPA). BILLING CODE 6560–50–P
proceeding: ACTION: Proposed rule.
(1) All such written communications;
(2) Memoranda stating the substance SUMMARY: The Environmental Protection ENVIRONMENTAL PROTECTION
of all such oral communications; and Agency (EPA) is proposing to approve a AGENCY
(3) All written responses, and revision to the Arkansas State
Implementation Plan (SIP) submitted to 40 CFR Part 52
memoranda stating the substance of all
oral responses, to the materials meet the Clean Air Act (CAA) emissions [EPA–R07–OAR–2015–0587; FRL 9940–98–
described in (b)(1) and (2) of this inventory (EI) requirement for the Region 7]
section. Crittenden County ozone nonattainment
(c) Requests for an opportunity to area. EPA is approving the SIP revision Approval of Missouri’s Air Quality
rebut, on the record, any facts or because it satisfies the CAA EI Implementation Plans; Early Progress
contentions contained in an ex parte requirement for Crittenden County Plan of the St. Louis Nonattainment
communication which have been placed under the 2008 8-hour ozone National Area for the 2008 Ozone National
on the public record of the proceeding Ambient Air Quality Standards Ambient Air Quality Standard
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pursuant to paragraph (b) of this section (NAAQS). The inventory includes AGENCY: Environmental Protection
may be filed in writing with the emission data for Nitrogen Oxides Agency (EPA).
Commission. The Commission will (NOx) and Volatile Organic Compounds
ACTION: Proposed rule.
grant such requests only where it (VOCs). EPA is approving the revisions
determines that the dictates of fairness pursuant to section 110 and part D of SUMMARY: The Environmental Protection
so require. In lieu of actually receiving the CAA and EPA’s regulations. Agency (EPA) is proposing to approve
rebuttal material, the Commission may DATES: Written comments should be revisions to the State Implementation
in its discretion direct that the alleged received on or before February 16, 2016. Plan (SIP) submitted by the State of
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Document Created: 2016-01-14 02:50:56
Document Modified: 2016-01-14 02:50:56
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rulemaking. | |
| Dates | Comments are due: February 16, 2016. Reply comments are due: February 29, 2016. | |
| Contact | David A. Trissell, General Counsel, at 202-789-6820. | |
| FR Citation | 81 FR 1931 | |
| CFR Citation | 39
CFR
3000 39 CFR 3001 39 CFR 3008 | |
| CFR Associated | Conflicts of Interests; Ex Parte Communications; Administrative Practice and Procedure; Confidential Business Information; Freedom of Information and Sunshine Act |
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