[Federal Register Volume 74, Number 197 (Wednesday, October 14, 2009)]
[Notices]
[Pages 52795-52796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24717]


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DEPARTMENT OF ENERGY


Guidance on Ex Parte Communications

AGENCY: Office of the General Counsel, Department of Energy (DOE).

ACTION: Notice of guidance on ex parte communications.

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SUMMARY: The Department of Energy sets forth guidance on ex parte 
communications during informal rulemaking proceedings. The guidance is 
intended to encourage the public to provide DOE with all information 
necessary to develop rules that advance the public interest, while 
ensuring that rulemaking proceedings are not subject to improper 
influence from off-the-record communications. As President Obama stated 
in a January 21, 2009 memorandum, ``Executive departments and agencies 
should offer Americans increased opportunities to participate in 
policymaking and to provide their Government with the benefits of their 
collective expertise and information.'' (74 FR 4685) DOE intends this 
guidance to provide both increased public participation in the 
rulemaking process and additional transparency during that process.

DATES: This guidance on ex parte communications is effective on October 
14, 2009.

FOR FURTHER INFORMATION CONTACT: Daniel Cohen, Assistant General 
Counsel for Legislation and Regulatory Law, Office of the General 
Counsel, Department of Energy, 1000 Independence Avenue, SW., 
Washington, DC 20585-0121, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The following guidance, provided in the form 
of answers to ``Frequently Asked Questions'', is intended to encourage 
stakeholders to meet with, and provide information and advice to, DOE 
officials during the rulemaking process by setting forth simple and 
clear procedures governing meetings, or telephone or electronic 
contact, with DOE officials to discuss a pending rulemaking action. 
Informal stakeholder communications other than written comments on the 
proposed rule or presentations at a public hearing that occur during 
the public comment period are generally lawful under section 501 of the 
Department of Energy Organization Act and the Administrative Procedure 
Act (5 U.S.C. 553). Informal communications, however, must be disclosed 
properly to ensure fairness for all stakeholders, the integrity of the 
rulemaking process, and the adequacy of the record in support of the 
final rule.

Frequently Asked Questions on Ex Parte Communications With DOE 
Employees

    (1) What is the purpose of DOE's Ex Parte Guidance?
    The ex parte guidance governs the manner in which interested 
parties may communicate with DOE during its informal rulemaking 
proceedings, termed ``permit-but disclose'' proceedings for purposes of 
this guidance. It is designed to encourage additional public 
participation in the rulemaking process, while ensuring that all such 
participation is open and transparent.
    (2) What types of proceedings are considered ``permit-but-
disclose'' proceedings?
    Permit-but-disclose proceedings are comprised of: (i) Proceedings 
in response to petitions for rulemaking; (ii) informal rulemaking 
proceedings upon release of an advanced notice of proposed rulemaking, 
a notice of public meeting or, if neither of those documents are 
utilized, the notice of proposed rulemaking; (iii) proceedings 
involving an interim final rule.
    (3) Does the ex parte guidance apply to me?
    The ex parte guidance applies to anyone who engages in the kind of 
communications covered by the guidance.
    (4) What types of communications are covered by the ex parte 
guidance?
    The guidance governs ex parte presentations to DOE decision makers 
during its ``permit-but-disclose'' proceedings.
    (5) What is an ex parte presentation?
    An ex parte presentation is a communication directed to the merits 
or outcome of a proceeding that, if written (including e-mail), is not 
provided to all interested parties or, if oral, is made without advance 
notice to all interested parties and without opportunity for such 
parties to be present.

[[Page 52796]]

    (6) Who are DOE decision making personnel?
    Decision-making personnel are those DOE employees who are or may 
reasonably be expected to be involved in formulating a rulemaking.
    (7) What are the disclosure requirements applicable in ``permit-
but-disclose'' proceedings?
    For the proceedings listed above, in-person meetings or telephone 
calls between DOE and an interested party or parties will require a 
memorandum memorializing the meeting to be placed in the public docket. 
The memorandum should include a summary of the issues discussed as well 
as a list of attendees and date of the meeting. The interested party or 
parties must complete the memorandum and submit it to DOE for inclusion 
in the public docket within one week of the meeting. The DOE reserves 
the right to supplement these public filings with additional 
information as necessary or to demand that the party making the filing 
do so (i.e., if DOE believes that important information was omitted or 
characterized incorrectly).
    If outside parties bring documents to give DOE employees, the 
employees should inform the outside parties that those documents will 
be put in the record. If the outside parties do not want DOE employees 
to put their documents in the record, they should not, except as 
specified in this response, provide the documents to or leave the 
documents with DOE. Interested parties may submit documents under a 
request for confidential treatment; however, a public version of these 
documents must be provided for the record for DOE to rely on the 
information as part of a rulemaking. In addition, DOE will make its own 
determination on whether documents should be released in response to a 
request for the documents under the Freedom of Information Act.
    (8) What communications are not covered by the ex parte guidance?
    Phone calls that DOE employees or contractors initiate to gather 
information as part of the rulemaking process need not be memorialized. 
If new data is obtained as a result of such contacts after issuance of 
the notice of proposed rulemaking, it may be necessary to seek public 
comment on the data for DOE to rely on the data in the final rule.
    (9) What is DOE's role in ex parte communications?
    To safeguard the integrity of DOE's rulemaking process, the primary 
goal of DOE employees in ex parte communications is to listen and ask 
clarifying questions. The DOE will not engage in negotiation or reveal 
substantive aspects of the forthcoming rulemakings. The DOE is the 
receiver of information. If meetings are held with an outside party 
while the rulemaking is pending, every reasonable effort will be made 
to meet with any other outside party who requests a similar 
opportunity.
    (10) Where should memoranda memorializing ex parte communications 
be sent?
    Memorandums memorializing ex parte communications should be 
provided to the e-mail address listed above, 
[email protected].
    (11) How does DOE give notice of ex parte communications?
    DOE is currently developing a link on the homepage of the Office of 
the General Counsel where ex parte communications will be posted. 
Further information on the Web site will be provided in a future 
Federal Register notice.

    Issued in Washington, DC, on October 7, 2009.
Scott Blake Harris,
General Counsel.
[FR Doc. E9-24717 Filed 10-13-09; 8:45 am]
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