policies probably reflect experience with the open-meeting 55 requirements of the Government in the Sunshine Act, as well as reaction to the D. C. Circuit's Home Box Office decision. 56 Executive agencies which have formal policies governing ex parte communications include the Department of Transportation, the Environmental Protection__Agency, and the Federal Emergency Management Agency. 58 57 3. Timing considerations in regulating ex parte communications. Ex parte contacts after the comment period has closed pose particularly hard problems and deserve special attention. It is worth noting that both the Sangamon Valley and Home Box Office cases involved ex parte communications at this 59 stage of the proceedings. Reports of ex parte communications at this stage are likely to generate pressure on the agency to reopen the comment period to allow persons to respond to the communications. The Federal Communications Commission's rules no w prohibit ex parte communications "bet ween the time a draft order proposing substantive disposition of [a 'non-restricted' 54/ See 16 C.F.R., Part 1012 (1982). These rules have been sharply criticized by a member of the CPSC, see Statler, Let the Sunshine In?, 67 ABA Journal 573 (May 1981). 55/ Pub. L. No. 94-409, 90 Stat. 1241 (codified at 5 U.S.C. S 552(b). 56/ DOT Order 2100.2 (Oct. 5, 1970). Ex parte communications are discouraged after the end of the comment period. After the NPRM is published, all communications must be reduced to writing and promptly placed in the public docket. Summaries should include list of participants; summary of discussion, and statement of commitments made by DOT personnel. 57/ Administrator's Memorandum of May 19, 1983 instructs agency employees to "be certain (1) that all written comments received from persons outside the Agency (whether during or after the comment period) are entered in the rulemaking docket, and (2) that a memorandum summarizing any significant new factual information or argument likely to affect the final decision received during a meeting or other conversations is placed in the rulemaking docket." Id. at p. 2. 58/ 44 C.F.R. § 1.6 (1982). 59/ See discussion supra, at text accompanying nn. 7-10. rulemaking] proceeding is placed on the Commission's Sunshine Agenda and the time the Commission acts on that draft order and either releases a final order or returns the matter to the staff for further consideration."60 The Department of Transportation's 61 policy is that oral ex parte communications should be held to a minimum once the closing date for comment on the rule has passed, since such contacts, even if reported and docketed, can escape the notice of other participants. It is suggested that, if oral communication at this late stage is believed necessary, the meeting should be publicly announced and all persons who have expressed an interest in the proceeding should be invited to participate. C. Executive Branch Communications in Rulemaking. Some of the same concerns raised regarding ex parte contacts with outside private interests are also raised when agency decisionmakers meet privately with other agencies, particularly the White House. 1. Competing claims in debate over executive role. The Home Box Office decision addressed only communications between agency personnel and private parties. Subsequently, however, a few scholars and public interest groups have argued that behind-the- scenes communications from within the government viz., from the President, his staff, the Office of Management and Budget, or other agencies also can pose fairness problems. While the analogy between private communications and presidential (or other intragovernmental) contacts is somewhat strained, the question of dealing with executive communications has become a subject of recent controversy. The proper role of the President and his advisors in shaping agencies' regulatory policies is a sensitive, complex question. Some commentators fear that behind-the-scenes intervention by a 60/ 47 C.F.R. § 1.1231(a) (1982). See also F.C.C. Gen. Docket No. 78-167, Report and Order Adopting Rules Regarding Ex Parte Communications in Informal Rulemaking Proceedings, ¶¶ 65-66, 45 Fed. Reg. 45,582, 45, 589 (July 7, 1980). 61/ DOT Order 2100.2 (Oct. 5, 1970), at ¶ 2.c. Today there exists a plethora of testimony A second concern of critics of ex parte communications in informal rulemaking is that interested persons may be unable to reply effectively to information, proposals or arguments presented off the record. It also has been suggested that participants will have little incentive to submit thoughtful comments or carefully prepared supporting data if they believe that other interests have privileged access to decisionmakers. Assuring interested persons a chance to comment and respond to others' comments may reduce the influence of "insiders," yield new sources of information for the agency to consider in drafting the rule, and improve acceptance of 33 the final rule. A final concern is that ex parte communications may increase the likelihood that crucial information influencing the agency decision will not be available to the reviewing court. For example, in Home Box Office, Judge Wright stated: Even the possibility that there is here one 32/ Note, Judicial Control of Ex Parte Contacts, supra note 23, at 489; see also Wright, Musings on Administrative Law, supra note 23, at 180. 33/ See generally Comment, The Need for an Additional Notice and Comment Period When Final Rules Differ Substantially from Interim Rules, 1981 Duke L.J. 377. administrative record for the public and this 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. 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) powerful President, his advisors, or his deputies at OMB or else where will frustrate congressional mandates, reduce incentives for regulators to act responsibly, under mine or demean the rulemaking process, and serve as undisclosed or inadvertent conduits for information supplied by interested private groups." Consequently, it has been suggested that restrictions on off-therecord contacts be extended to White House advisors and other executive officials. 63 62 However, important considerations favor executive coordination of agency policy, and courts so far have been reluctant to restrict executive communications with rulemakers." This is understandable, since the President and his advisors are not private parties with narrow interests at stake; the President is elected to run the executive branch and see that the 64 laws are faithfully executed. The White House must be able to coordinate executive agencies' policymaking so as to assure the government's accountability, promote effective use of its resources, and ensure that single-mission bureaucracies do not carry out their broad mandates in ways that interfere with other economic or social goals. It has been argued that at least some 65 62/ See Verkuil, Jawboning Administrative Agencies, supra note 35, at 949-50; 1 K. Davis, Administrative Law Treatise $ 6.40 (1982 Supp.); separate statement concerning A CUS Recommendation 806, 1980 Annual Report of the Administrative Conference 70; M. Rosenberg, Presidential Control of Agency Rulemaking; A Report to the House Comm. on Energy and Commerce, 97th Cong., 1st Sess. (Comm. Print 1981). 63/ Sierra Club v. Costle, supra note 28, at 404-408; Sohn & Litan, Regulatory Oversight Wins in Court, Regulation 17 (July/August 1981). 64/ See Verkuil, Jawboning Administrative Agencies, supra note 35, at 979. 65/ The competing considerations are discussed at some length in Bruff, Presidential Power and Administrative Rulemaking, 88 Yale L.J. 451 (1979). See also, Final Report of the ABA Committee on Law and the Economy, Federal Regulation: Roads to Reform 72-84 (1979), which recommends elaborate procedures for channeling presidential direction; K. Davis, Administrative Law Treatise S 6.40 (1982 Supp.); Cutler and Johnson, Regulation and the Political Process, 84 Yale L.J. 1395 (1975); Symposium: Presidential Intervention in Administrative Rulemaking, 56 Tul. L. Rev. 811 (Continued) |