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§3001.7 Ex parte communications.
(a) Definitions. (1) Decision-making personnel. Subject to the exception stated in paragraph (a)(2)(ii) of this section, the following categories of persons are designated “decision-making personnel”:
(i) The Commissioners and their personal office staffs;
(ii) The General Counsel and his/her staff;
(iii) The Director of the Office of Accountability and Compliance and his/her staff;
(iv) Any other employee who may reasonably expected to be involved in the decisional process.
(2) Non-decision-making Commission personnel. The following categories of person are designated “non-decision-making personnel”:
(i) All Commission personnel other than decision-making personnel;
(ii) Decision-making Commission personnel not participating in the decisional process owing to the prohibitions of §3001.8 or §3000.735-501 of this chapter.
(iii) The Public Representative and other Commission personnel assigned to represent the interests of the general public pursuant to 39 U.S.C. 505 in the specific case or controversy at issue.
(b) Prohibition. In any agency proceeding conducted under section 3661 of the Act; noticed and set for hearing by the Commission pursuant to §§3001.17 and 3001.18(a); or any proceeding conducted pursuant to part 3025 of this chapter except to the extent required for the disposition of ex parte matters as authorized by law:
(1) Interested persons outside the Commission and non-decision-making Commission personnel shall not make or knowingly cause to be made to any Commission decision-making personnel ex parte communications relevant to the merits of the proceeding;
(2) Commission decision-making personnel shall not make or knowingly cause to be made to any interested person outside the Commission or to non-decision-making Commission personnel ex parte communications relevant to the merits of the proceeding;
(3) 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 he/she will not consider the communication 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.
(4) Commission decision-making personnel who receive, or who make or knowingly cause to be made, communications prohibited by this paragraph shall place on the public record of the proceeding:
(i) All such written communications;
(ii) Memoranda stating the substance of all such oral communications; and
(iii) All written responses, and memoranda stating the substance of all oral responses, to the materials described in paragraphs (b)(4)(i) and (b)(4)(ii) of this section.
(5) 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)(4) 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. Generally, in lieu of actually receiving rebuttal material, the Commission will direct that the alleged factual assertion and the proposed rebuttal be disregarded in arriving at a decision.
(c) Applicability. (1) The prohibitions of paragraph (b) of this section shall apply beginning at the time at which a proceeding is noticed for hearing or appeal unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his/her acquisition of such knowledge.
(2) Paragraph (b) of this section does not constitute authority to withhold information from Congress.
(d) Violations of ex parte rules. (1) Upon notice of a communication knowingly made or knowingly caused to be made by a participant in violation of paragraph (b) of this section, the Commission or presiding officer at the hearing 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.
(2) 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 paragraph (b) of this section sufficient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur.
[45 FR 65580, Oct. 3, 1980, as amended at 58 FR 38976, July 21, 1993; 62 FR 45530, Aug. 28, 1997; 65 FR 6539, Feb. 10, 2000; 77 FR 6679, Feb. 9, 2012; 78 FR 36436, June 18, 2013; 79 FR 23916, Apr. 29, 2014]