materials also will assist the agency in its deliberations on the rule, as well as a court reviewing the final rule. 47

Each agency staff should decide how detailed an index is desirable or feasible in the rulemaking. Very likely, the staff will lack the time during the public stage of the rulemaking to do finegrained analysis of the written comments submitted by interested persons. Sound judgments about the value of the information contained in written submissions may have to await the end of the comment period. Moreover, "major" submissions often are not received until late in the comment period. Staff-generated information presents a different situation since, especially prior to the NPRM, the staff has control over the information-gathering process. Therefore, the staff should take advantage of the flexibility of the pre-NPRM period to organize and analyze the material in its investigation file, with a view toward incorporating it into the rulemaking record.

If a rulemaking is complex or controversial, there will be competing demands for rulemaking record documents during the proceeding. For example, more than one request for the same document may be made by interested persons; documents will be off the shelf for photocopying, or the agency staff may need to use record documents before the comment period expires. Since a rulemaking record document cannot be in more than one place at a time, potential users of the document will be frustrated, and delay may occur, unless provision is made for photocopying of documents.

Agencies also should consider maintaining one copy of record documents in an archival state to protect against destruction or loss. Maintaining multiple copies of heavily-used documents (e.g, record indexes; agency staff reports) also may help meet demand for documents. Self-service photocopying machines for small requests will relieve agency staff of much of the burden of responding to document requests. Finally, the rulemaking staff should consider the relative merits and cost of alternative forms of producing copies of documents (e.g., microfilm or microfiche).

47/ See Judge Wald's comments, supra note 35.

3. Treatment of marginally relevant documents received in the rulemaking. The staff conducting the pre-NPRM investigation may obtain a great deal of background information related to a problem that is addressed later in a rulemaking proceeding. If it can be determined that background information is only marginally relevant to the issues presented by the NPR M, the agency staff should consider either (1) not including it in the rulemaking file, or (2) segregating the material within the rulemaking docket in a way that makes it easy for the record user to determine its marginal relevance. The latter practice may be "safer" since perceptions can differ on the relevance of information. 48

The rulemaking staff has no control over the content of written comments submitted by the public--other than to use the NPRM to encourage interested persons to focus on certain issues or subject. The staff nevertheless should be alert to opportunities to segregate public submissions in a way that facilitates record use by other interested persons and reviewing judges. Comments received after the comment deadline also may warrant separate treatment on the index.

48/ In Environmental Defense Fund v. Blum, 458 F. Supp. 650 (1978), the E.P.A. was criticized for omitting from the rulemaking record information in its files that the reviewing court found to be "highly relevant" to the rule under review. The Court admonished the agency, stating that it could not "skew the 'record for review in its favor by excluding from that 'record' information in its own files which has great pertinence to the proceeding..." Id. at 661 (footnote omitted).

CHAPTER SEVEN: EX PARTE COMMUNICATIONS
AND RULEMAKING

The emergence of the rulemaking record concept1 has led to scrutiny and criticism of "off-the-record" communications between agency decisionmakers and other persons during informal

rulemaking. Resolving how to treat such "ex parte" communications in informal rulemaking has been the topic of lively debate in recent years. Some of the initial uncertainty about the law in this area has been removed by recent court decisions. However, the treatment of ex parte communications in informal rulemaking raises complex issues and conflicting considerations that the agency rulemaker needs to be aware of during rulemaking. A. Background.

The Administrative Procedure Act places no restrictions on ex parte communications made in informal rulemaking.2 Indeed, the notion of "parties" and "off-the-record" contacts in informal rulemaking would have made little sense to the drafters of section 553, since participation in rulemaking under that section is not limited to named parties, and the agency decision need not be based exclusively on the record produced during the rulemaking.

Until 1977, the only court decision prohibiting "ex parte"3 communications in rulemaking was Sangamon Valley Television 4 Corp. v. U.S.,* a decision which was generally regarded as a hard case which made sense on its facts but established no firm principle of law. First of all, the Sangamon Valley case involved

5

1/ See generally Chapter Six.

2/ However, the APA does prohibit ex parte contacts between Outsiders and the decisionmaker in formal rulemaking and adjudication, 5 U.S.C. S 557(d)(1) (1976). See also the APA's definition of "ex parte communication," 5 U.S.C. $551(14).

3/ This term is used throughout this chapter to mean off-therecord private communications between agency decisionmakers and other persons concerning the substance of the agency's proposed rule.

4/ 269 F.2d 221 (D.C. Cir. 1959), cert. denied, 376 U.S. 915 (1964). (Continued)

the allocation of television channels between two communities, which the court characterized as involving the "resolution of

conflicting private claims to a valuable privilege."6 The court's decision also was influenced by the fact that the private communications with the FCC commissioners were made after a formal period for "reply comments" had ended. Though the Federal Communications Commission had no rule prohibiting such contacts after the "reply comment" cut-off date, its usual practice was to not receive additional comments.

8

7

Though the Sangamon Valley decision did not leave a lasting mark on administrative law, it was not forgotten by members of the bar practicing before the Federal Communications Commission. In 1975, the FCC issued several orders that established rules governing the programming and advertising of cablecasters and subscription broadcast television stations. The rules were challenged on a variety of grounds in Home Box Office, Inc. v. F.C.C. One ground alleged by petitioners was violation of the Sangamon Valley prohibition on ex parte communications with commissioners during the deliberative stage of proceedings. Despite some differences in the fact situations, there was basic similarity in the the circumstances surrounding the Commission decisions in Sangamon Valley and Home Box Office. In both cases there was heavy ex parte lobbying of individual commissioners in the deliberative stage of the proceedings, even though the

9

5/ In Courtaulds, Inc. v. Dixon, 294 F.2d 899 (1961), the D.C. Circuit rejected a challenge to ex parte communications made in Federal Trade Commission rulemaking, finding Sangamon Valley "completely distinguishable on its facts and in principle." Id. at 904 n. 16.

6/ Id. at 224.

7/ Id. at 224-225.

8/ 567 F.2d 9 (D.C. Cir. 1977), cert. denied, 434 U.S. 829 (1977). 9/ Sangamon Valley involved competition by two applicants over allocation of a single VHF television channel. Home Box Office involved competition, not by two applicants, but by two industries-cablecasters and established television broadcasters. Also, Home Box Office clearly involved major policymaking through rulemaking, and one could not analogize the proceeding to licensing as the court did in Courtaulds, supra note 5.

Commission's rules provided for a relatively structured process for building a record for decision.

TO

The Court of Appeals for the D.C. Circuit found the Sangamon Valley principle applicable to the Home Box Office proceeding, but the court's opinion went far beyond extending the earlier holding to the case at hand. Writing for the panel majority, Judge Wright stated a general rule that: "Once a notice of proposed rulemaking has been issued..., any agency official or employee who is or may reasonably be expected to be involved in the decisional process of the rulemaking proceeding, should 'refus[e] to discuss matters relating to the disposition of a [rulemaking proceeding] with any interested private party, or an attorney or agent for any such party, prior to the [agency's] decision."" The court proceeded to set aside the FCC's revison of its rules restricting pay exhibition of programs on cable and 12 broadcast systems. As the court's concurring opinion" and Professor Davis13 have pointed out, this broad language was unnecessary to support the holding in Home Box Office.

Less than four months after Home Box Office was decided a different panel of the D.C. Circuit rejected the reasoning of the Home Box Office majority opinion. In Action for Children's 14 Television v. FCC, the court sided with Judge MacKinnon who, in a special concurrence in Home Box Office, argued that the ex parte communications ban in Home Box Office was justified only because the rulemaking involved competing private claims to a 15 valuable interest. However, Action for Children's Television was decided on the narrow ground that the Home Box Office decision 16 should not be applied retroactively.

In 1978, Home Box Office was cited with approval in two 17 D.C. Circuit cases, involving ratemaking and informal

10/ 567 F.2d at 56.

11/ Id. at 57. (Court's brackets and citations omitted).

12/ Id. at 62 (MacKinnon, J., concurring specially).

13/2 K. Davis, Administrative Law Treatise (2d ed.), § 6:18 at

5 35-536.

14/ 564 F.2d 458 (D.C. Cir. 1977).

15/ Id. at 474.

16/ Id.

(Continued)