administrative record for the public and this agency in secret and the agency itself does not 34 Of course, this reliance on the Supreme Court's Overton Park decision to justify judicial restrictions on ex parte communications in informal rulemaking is suspect in light of the Court's Vermont 35 Yankee decision. Nevertheless, an agency can expect courts to take a dim view of the introduction on judicial review of information relevant to the rule that was in the agency's file but not placed in the rulemaking record. 36 Despite these criticisms, most experts have cautioned against prohibiting or broadly restricting ex parte contacts in rulemaking. Additional restraints on agency interaction with knowledgeable persons may reduce the amount of information available to decisionmakers and formalize and delay proceedings needlessly. Also, limits on ex parte communications in rulemaking can deter delicate negotiations. Privacy and informality encourage candor, whereas it may be more difficult for participants to advance tentative and compromise positions through public statements. 37 34/ 567 F.2d at 54. See also Nathanson, supra note 23, at 394-95. 35/ See Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80 Colum. L. Rev. 943, 972-78; Gellhorn and Robinson, Rulemaking "Due Process": An Inconclusive Dialogue, supra note 23, at 237-38. 367 See cases cited in Sierra Club v. Costle, supra note 28, at 397 n. 484. 37/ See Scalia, Two Wrongs Make a Right, supra note 23, at 40-41; Nathanson, Report to the Select Committee on Ex Parte Communications in Informal Rulemaking Proceedings, supra note (Continued) does B. Regulating Contacts with Private Parties in Rulemaking. The foregoing discussion suggests that even though the APA not prohibit or restrict ex parte communications in rulemaking, agencies still need to be sensitive to the concerns raised when information is submitted in private discussions with persons outside the agency. They also may want to adopt policies or practices for restricting or channeling ex parte contacts 39 in rulemaking." 38 The cases and literature suggest that it may be difficult for agencies to differentiate in their ex parte communications policies according to the nature or type of issues involved in particular rulemaking proceedings. Beyond rulemaking that is enough like 40 adjudication to trigger due process procedural safeguards, it is hard to define in advance the situations that warrant restricting ex parte communications.41 In the next section, we look at the 23, at 396-97, 400 n. 56; Note, Judicial Control of Ex Parte Contacts, supra note 23, at 496. For a general discussion of problems and advantages, see Carberry, Ex Parte Communications in Off-the-Record Administrative Proceedings: A Proposed Limitation on Judicial Innovation, 1980 Duke L. J. 65. 387 It also should be noted here that the Federal Advisory Committee Act may require that meetings with private groups be open to the public when their advice is sought on a rulemaking proposal. See discussion in Chapter IV at pp. 104-105. 39/ For a good, succinct presentation of the "pros" and "cons" of ex parte communications in rulemaking, see Robinson, The Federal Communications Commission: An Essay on Regulatory Watchdogs, 64 Va. L. Rev. 169, 227-30 (1978). 40/ See discussion of Sangamon Valley and Vermont Yankee in Carberry, supra note 37, at 96-102. 41/ The Attorney General's Committee on Administrative Procedure suggested that in rulemaking involving controversial economic interests where it is clear in advance that certain interests will benefit and others suffer (as by losing the right to do business) if a rule is adopted, agencies may want to treat the rulemaking proceeding as adversary and disclose to opposing interests all information, conclusions and arguments submitted to the agency so they may be rebutted. Final Report of the Attorney General's Committee on Administrative Procedure, S. Doc. No. 8, 77th Cong., 1st Sess. 109 (1941). A problem with this suggestion is that it is the essence of any regulation "that it lays a restraining hand on the self-interest of the regulated and that advantages from (Continued) approach to regulating ex parte contacts in rulemaking that has been recommended by the Administrative Conference and, also, in the following section, at actual agency practice in this area. 1. The Administrative Conference's recommendation on handling ex parte contacts. Shortly after Home Box Office was decided, the Administrative Conference reviewed this problem and concluded that a general prohibition of private contacts, or a requirement that every such communication be summarized and 42 exposed on the public record, is undesirable. Conference Recommendation 77-3 states in part: "Where there may be thousands of interested persons and where the issues tend to be broad questions of policy with respect to which illumination may come from a vast variety of sources not specifically identifiable," broad strictures should not be imposed--as in adjudication--to 43 prohibit all private communications. The Conference counseled that a general prohibition "would deprive agencies of the flexibility needed to fashion rulemaking procedures appropriate to the issues involved, and would introduce a degree of formality that would, at least in most instances, result in procedures that are unduly complicated, slow and expensive, and, at the same time, perhaps not conducive to developing all relevant information."44 Nevertheless, recognizing the valid concerns of critics of ex parte contacts, the Conference called on agencies to (1) promptly place in a public file all written comments addressed to the merits of a proposed rule that are received after issuance of a notice of proposed rulemaking; and (2) experiment with procedures, including use of summaries and public meetings, to disclose oral the regulation commonly fall to others." Wickard v. Filburn, 317 U.S. 111, 129 (1942). Therefore, deciding the point at which restrictions on ex parte contacts should come into play might be difficult. 42/ ACUS Recommendation 77-3, Ex Parte Communications in Informal Rulemaking Proceedings, 1 CFR S 305.77-3 (1983). The recommendation was based on a report by Professor Nathaniel Nathanson. See Nathanson, Report to the Select Committee on Ex Parte Communications in Informal Rulemaking Proceedings, supra note 23. 43/ ACUS Recommendation 77-3, id. (last sentence of preamble). 44/ Id. at ¶ 1. communications that contain significant information or argument respecting the merits of a proposed rule. 45 The Conference's recommendation recognizes that Congress or the courts might conclude that greater restrictions are appropriate in limited categories of agency proceedings in the interests of fairness or 46 adequate judicial review. The Conference's approach alleviates the concerns which an inflexible prohibition on ex parte communications would seek wholly to eliminate. It reduces hard definitional questions by calling on agencies to institute relatively unobtrusive safeguards in all informal rulemakings. An agency that acts in good faith to include oral communications of significant information in the record is likely to satisfy the need for an adequate record on judicial review. Additionally, the Conference's recommended approach attempts to strike a workable balance between the goals of enabling interested persons to reply effectively to information or argument presented in ex parte contacts, and of facilitating the free flow of information in rulemaking. The Conference's .47 approach was cited with approval in Sierra Club v. Costle but it is not likely to satisfy people who want an exclusive record for decision in rulemaking. 48 2. Current agency practice on handling ex parte contacts. Most independent agencies, and several executive departments, have adopted policies or procedures to regulate offthe-record contacts in rulemaking. Nearly every agency with a substantial rulemaking docket has reported that it follows the Conference's recommendation that all written communications received from the public promptly be made public. The Department of Agriculture, for example, 49 45/ Id. at ¶¶ 2, 3. 46/ Id. at ¶ 5. 47/ 657 F.2d at 403 n. 513 (D.C. Cir. 1981). 48/ See, e.g., Wright, Musings on Administrative Law, supra note 23, at 181. 49/ The Conference typically sends "implementation letters" to agencies following adoption of recommendations. These letters transmit the recommendation to agency heads, and they also ask whether the agency's procedures conform to the Conference's (Continued) requires all written submissions made after publication of a notice of proposed rulemaking to be made available for public inspection, unless the submitter has requested has requested confidentiality and a determination is made that the records can be withheld under the Freedom of Information Act.' If they cannot be withheld, the submitter is given an opportunity to withdraw the submission. 50 52 Agency practice on handling oral ex parte communications is more varied. The independent regulatory agencies have the most restrictive policies regarding such contacts in rulemaking. The Civil Aeronautics Board requires that all substantive ex parte oral 51 communications be summarized and placed in the public file. The Federal Communications Commission prohibits ex parte communications in the deliberative stage of rulemaking, and it imposes strict disclosure requirements on earlier stages. The Federal Trade Commission is required by the 1980 amendments to the FTC Act to place a verbatim record or summary of ex parte contacts in the rulemaking record." The Consumer Product Safety Commission has the most extreme requirements for openness of agency meetings and disclosure of communications with interested persons. Notice must be given of virtually all meetings between agency employees and outside persons; the public may attend any meeting, and summaries are kept of all meetings and telephone conversations between agency employees and interested persons. The independent regulatory agencies' 54 53 recommendation. Agency responses to the implementation letters are maintained in the Conference's files, and they may be used by persons seeking more information on agency practice in the subject area. 50/ 7 CFR $ 1.27 (1983). 5T/ 14 C.F.R. § 300.3(a), (b) (1983). Only communications involving national defense or foreign policy matters are withheld. Letter, Lee R. West, CAB Member, to Robert A. Anthony, ACUS Chairman (Feb. 7, 1978). 52/ 47 C.F.R. S 1.1231 (1982). In "restricted" rulemakings (including those involving claims to a valuable privilege), ex parte contacts are banned, with narrow exceptions. 47 C.F.R. SS 1.1 207, 1.1229 (1982). 53/ Pub. L. No. 96-252, § 12 (amending $ 18j of the FTC Act); see 16 C.F.R. SS 1.13(c)(6), 1.18 (1983) (the FTC's implementing regulations). (Continued) |