(f) Unauthorized ex parte ex parte communications shall consist of:

(1) Any written communication of any kind about the proceeding unless copies thereof are served by the communicator contemporaneously with the transmittal of the communication in accordance with the requirements of Rule 23 of the Rules of Practice, 17 CFR 201.23, upon all participants to the proceeding (including the interested division of the Commission).

(2) Any oral communication of any kind about the proceeding unless:

(i) 48 hours advance written notice that it will be made is given by the communicator to all participants to the proceeding (including the interested division of the Commission); or

(ii) its contents are disclosed by the communicator at the time of its presentation to all the participants to the proceeding (including the interested division of the Commission); or

(iii) the substance of the contents of the oral communication is reduced to writing and personal or telegraphic service of copies thereof is made by the communicator within 24 hours following the presentation of the oral communication upon all the participants to the proceeding (including the interested division of the Commission).

(g) Notwithstanding the foregoing the following classes of communications shall not fall within the prohibitions of this Code:

(1) Any oral or written communication which relates solely to matters which the Commission member or decisional employee is authorized by law to dispose of on an ex parte basis;

(2) Any oral or written request for information solely with respect to the status of a proceeding; (3) Any oral or written communication which is authorized by statute or Commission rule, or which all the participants to the proceeding agree, or which the Commission or hearing officer formally rules, may be made on an ex parte basis;

(4) Any oral communication made openly or on the record at a scheduled hearing session in a particular proceeding, regardless of whether all the participants are present;

(5) Any oral or written communication of facts or contentions which have general significance for an industry subject to regulation and the communicator cannot reasonably be expected to know that

the facts or contentions are material to a substantive or procedural issue in a pending proceeding; (6) Any communication by persons other than : (i) A participant (including a party) or person seeking admission as a participant in a proceeding or any person who might be adversely affected by a determination in the proceeding; or

(ii) A person who intercedes in a proceeding by volunteering a communication which he may reasonably be expected to know might advance or adversely effect the interest of a particular participant in the proceeding, whether or not he acts with the knowledge or consent of any participant or participant's agent; or

(iii) An agent of any of the foregoing.

(7) Any communication made with respect to a proceeding about which no public notice has been issued, if the communicator has no actual notice of the pendency of the proceeding.

(Adopted April 26, eff. June 1, 1963, Release 33-4600.) Section 200.112 Duties of Recipient.

(a) Any Commission member or decisional employee who receives a written communication which he knows is unauthorized, or which he concludes, in fairness, should be brought to the attention of all participants to the proceeding, should transmit the communication promptly to the Secretary of the Commission, together with a written statement of the circumstances under which it was made, if they are not apparent from the communication itself. The Secretary should promptly place the communication and the statement in the public file of the Commission, should send copies of the communication to all participants to the proceeding with respect to which it was made, and should notify the communicator of the provisions of this Code prohibiting ex parte communications. If the communications are from persons other than participants to the proceeding or their agents, and the recipient determines that it would be too burdensome to send copies of the communications to all participants because: (1) the communications are so voluminous, or (2) they are of such borderline relevance to the issues in the proceeding, or (3) the participants to the proceeding are so numerous, the Secretary may, instead, notify the participants that the communications have been received and placed in the

public file where they are available for their examination.

(b) Any Commission member or decisional employee who receives an oral communication which he knows, at the time it is received, is unauthorized, or which he concludes in fairness should be brought to the attention of all participants to the proceeding should put the substance of the communication in writing and transmit the writing promptly to the Secretary of the Commission, together with a written statement of the circumstances under which it was made. The Secretary should promptly place the writing and the statement in the public file of the Commission, should send copies of the writing to all participants to the proceeding with respect to which it was made, and should notify the communicator of the provisions of this Code prohibiting unauthorized ex parte communications. If the communications are from persons other than participants to the proceeding, or their agents, and the recipient determines that it would be too burdensome to send copies of the writings containing the substance of the communications to all participants because: (1) the communications are so voluminous, or (2) they are of such borderline relevance to the issues in the proceeding, or (3) the participants to the proceeding are so numerous, the Secretary may, instead, notify them that the communications have been received and writings containing their substance placed in the public file where they are available for their examination.

(c) Any Commission member or decisional employee who receives a communication which would be prohibited by this Code, but for the fact that it was received subsequent to the date when the prohibitions imposed hereby have ceased, shall comply with the provisions of Section 200.112 hereof with respect to such communication in the event that he is to act in a decisional capacity in the same proceeding pursuant to remand where he concludes, in fairness, that such communication should be brought to the attention of all participants to the proceeding.

(Adopted April 26, eff. June 1, 1963, Release 33-4600.)

Section 200.113 Opportunity to Rebut; Interception.

(a) All participants to a proceeding may request an opportunity to answer any allegations or contentions contained in an unauthorized ex parte communication or in any other ex parte communication brought to the attention of the participants in accordance with Section 200.112 above. The Commission will grant such a request whenever it determines that the dictates of fairness so require. If the record has not yet been certified to the Commission this determination shall be made in the first instance by the hearing officer.

(b) All written communications addressed to the Commission respecting a proceeding will be deemed to be communications to the staff of the interested division and will be directed to that division by the Commission's mail room. A Commission member or decisional employee may instruct any of his assistants who are nondecisional employees to intercept any communication directed to him which might appear to violate this Code and authorize them either to transmit any such written communication to the staff of the interested division of the Commission, if it appears from the contents of the communication that the intent of the sender is consistent with such action, or to return the communication to the sender.

(Adopted April 26, eff. June 1, 1963, Release 33-4600.) Section 200.114 Sanctions.

(a) The Commission may, to the extent not prohibited by law, censure, suspend, or revoke the privilege to practice before it of any person who makes, or solicits the making of, an unauthorized ex parte communication.

(b) The relief or benefit sought by a participant to a proceeding may, in the Commission's discretion, be denied if the participant, or an agent of the participant makes, or solicits the making of, an unauthorized ex parte communication.

(c) The Commission may censure, suspend or dismiss any Commission employee who violates the prohibitions or requirements of this Code.

(Adopted April 26, eff. June 1, 1963, Release 33-4600.)

U.S. GOVERNMENT PRINTING OFFICE: 1967 O-246-164