of these consultations are best undertaken away from the glare of 66 public scrutiny.

67

2. The Administrative Conference's recommendation for handling Executive communications. In 1980, the Administrative Conference considered this issue and adopted a recommendation that seeks to accommodate the need for internal policy debate with the demands for public participation and the requirements ofjudicial review. The Conference concluded that executive departments and agencies should be free to receive written or oral policy advice from other executive personnel without having to publicize these contacts. However, when an executive communication contains material factual information on a proposed rule, as distinct from indications of governmental policy, the Conference calls on agencies to (1) promptly place copies of documents received, or summaries of oral communications, in the public rulemaking file, and (2) consider giving interested persons an opportunity to respond if the factual material presents important new issues or creates serious conflicts of data. The Conference advised agencies to alleviate "conduit" concerns by identifying and making public every executive communication that contains or reflects comments from persons 68 outside the government, regardless of content.

(1982).

66/ See Blumrosen, The Bottom Line in Equal Employment Guidelines: Administering a Polycentric Problem, 33 Ad. L. Rev. 323 (1981); Statler, "Let the Sunshine In?," supra note 54 at 573; and Cleveland, "How Do You Get Everybody in on the Act and Still Get Some Action?" 120 Cong. Rec. S19455-57 (daily ed. Nov. 18, 1974).

67/

ACUS Recommendation 80-6, Intragovernmental Communications in Informal Rulemaking Proceedings, 1 C.F.R. S 305.80-6 (1983). The recommendation addresses the appropriate standards for communications from the President, his advisors, and other units of the Executive Branch to executive departments and agencies making policy decisions by informal rulemaking. The Conference took no position on position on contacts with independent agencies, which many contend should be subject to different standards.

68/ Eight of the Conference's ninety members criticized portions of the recommendation, and filed a separate statement calling for (Continued)

The Conference's recommendation does not address all the complex questions arising from executive interaction with rulemakers. For instance, it has been suggested that communications from the President himself should be subject to lesser restrictions than those from his advisors or other 69 agencies. It has also been suggested that general executive oversight of agency rulemaking processes might pose fewer problems than explicit directives on outcomes. Another point of contention is whether the President, his advisors, and other agencies should be bound by restrictions on ex parte contacts that many agencies, especially "independents", have adopted 70 voluntarily.

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3. Current policies and prospects. Recent administrations have begun to exercise increased control over agency rulemaking decisions, and have issued executive orders establishing systems of presidential supervision. The most recent, Executive Order 12291, requires comprehensive review of proposed rules, final rules, and regulatory impact analyses by the Office of Management and Budget and a Presidential Task Force on 72 Regulatory Relief. In response to concerns over the detrimental effects of nonpublic executive communications, the Reagan Administration adopted standards governing contacts with agencies in implementing the executive order. A June 1981 memorandum from OMB Director David Stockman states:

Both the public and the agencies should
understand that the primary forum for receiving

stricter limits. 1980 Annual Report of the Administrative Conference 70. Another Conference member, Professor Kenneth C. Davis, would go slightly further than did the Conference by requiring the logging of all significant policy communications. Rulemaking Symposium, supra note 65, at 857.

69/ Verkuil, Jawboning Administrative Agencies, supra note 35, at 988.

70/ Scalia, Memorandum to ABA Group on Regulatory Reform (Feb. 1981).

71/ See Chapter One, text accompanying nn. 22-47.

72/ See Chapter Two, at text accompanying nn. 166-183, for a description of this review process.

factual communications regarding proposed
rules is the agency issuing the proposal, not the
Task Force or OMB. Factual materials that are
sent to the Task Force or OMB regarding
proposed regulations should indicate that they
have also been sent to the relevant agency.

The memorandum also states that, where the Task Force or OMB receives or develops factual material that is submitted for agency consideration, it "will be identified as material appropriate for the whole record of the agency rulemaking."74 The memorandum does not indicate whether the directive applies to oral, as well as written, communications.

The standards promulgated by OMB have been criticized as being inadequate to prevent improper influence.

75

D. Congressional Communications in Rulemaking.

In a few cases, parties challenging agency rules have alleged that ex parte communications between members of Congress and agency decisionmakers constituted procedural error justifying invalidation of the rules. Congressional interference in agency 76 adjudication can lead to a denial of procedural due process. However, courts have not found Congressional contacts to be improper in informal rulemaking.

73/ Memorandum, OMB Director David A. Stockman to Heads of Executive Departments and Agencies (June 11, 1981), at p. 1. 74/ Id. at p. 2. See also, Memorandum from Office of Legal Counsel, Department of Justice to OMB, dated April 4, 1981 (advising that factual and conduit communications must be included in the rulemaking record); Memorandum from Office of Legal Counsel to Secretary of the Interior, dated Jan. 17, 1979 (calling for summarization and docketing of all relevant written and oral comments).

75/ See e.g., K. Davis, Administrative Law Treatise S 6.40 (1982 Supp.).

76/ See, e.g., Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1966). Cf. Amigos Broadcasting, Inc. v. FCC, 696 F.2d 128, 130 (D.C. Cir. 1982). (Court upheld award of a radio license despite misgivings about the Commission's failure to document the content of ex parte contacts by a U.S. Senator's office; appellant failed to show communications were intended to affect the outcome.)

77

In Sierra Club v. Costle, the Court of Appeals for the D.C. Circuit refused to invalidate an Environmental Protection Agency rule because of off-the-record meetings between the agency and a United States Senator. Even though the rulemaking was under the Clean Air Act, which requires creation of an exclusive record for judicial review, the court concluded that the meetings were not improper:

The meetings did underscore [the Senator's]
deep concerns for EPA, but there is no evidence
he attempted actively to use "extraneous"
pressures to further his position. Americans
rightly expect their elected representatives to
voice their grievances and preferences
concerning the administration of our laws. We
believe it entirely proper for Congressional
representatives vigorously to represent the
interests of their constituents before
administrative agencies engaged in informal,
general policy rulemaking, so long as individual
Congressmen do not frustrate the intent of
Congress as a whole as expressed in statute, por
undermine applicable rules of procedure. . . .

Thus, persons challenging ex parte contacts by congressmen have to demonstrate that--as in D.C. Federation of Civic Associations v. 79 Volpe-the agency's decision was based upon factors introduced by the ex parte communications that are not relevant to decision under the applicable statute.80

Another recent case involving congressional communications in rulemaking is Center for Science in the Public Interest v.

77/ 657 F.2d 298 (1981).

78/ Id. at 409.

79/ 459 F.2d 1231 (D.C. Cir. 1971), cert. denied, 405 U.S. 1030 (1972).

80/ In the D.C. Federation case, the agency's decision to approve construction of a bridge across the Potomac River was influenced by an influential congressman's threats to withhold appropriations for the Washington, D. C. area subway system. The court found that the subway appropriations factor was "extraneous" to the statutory criteria that applied to construction of the bridge. Id. at 1245-46.

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Department of Treasury, in which the court concluded that no procedural flaw existed as a result of congressional letters and phone calls urging Treasury to rescind its ingredient labeling 82 regulations for alcoholic beverages.

E. Intra-agency Communications in Rulemaking.

The debate concerning the propriety of ex parte contacts in rulemaking has occasionally touched upon the fairness of nonpublic communications between the agency decisionmaker and the agency's staff.

Nothing in the Administrative Procedure Act bars agency personnel from advising the decisionmaker in informal rulemaking. In adjudication, by contrast, agency decisionmakers are barred from off-the-record consultations with anyone on a fact in issue and are not allowed to receive advice from agency 83 investigators or prosecutors. The Attorney General's Manual on the APA explains this different treatment, as follows:

Not only were the draftsmen and proponents of
the bill aware of this realistic distinction
between rule making and adjudication, but they
shaped the entire Act around it. Even in formal
rule making proceedings subject to sections 7
and 8, the Act leaves the hearing officer
entirely free to consult with any other member
of the agency's staff. In fact, the intermediate
decision may be made by the agency itself or by

81/ Civ. No. 82-610 (D.D.C. Feb. 8, 1983).

82/ Id., slip op. at 23 ("It can be plausibly argued that communications from congressmen on behalf of constituents are part of any congressman's duty of proper representation.") 83/ 5 U.S.C. S 554(d). Although the APA does prohibit ex parte communications with persons outside the agency in formal rulemaking, it refrains from barring ex parte communications between the decisionmaker and agency personnel, 5 U.S.C. S 557(d). However, inasmuch as in all formal proceedings, the testimony, exhibits, and other papers filed in the proceeding constitute the exclusive record for decision, 5 U.S.C. S 556(e), no extra-record information may be received in either formal adjudication or formal rulemaking. On this point, see Hercules, Inc. v. EPA, 598 F.2d 91, 123-24 (D.C. Cir. 1978) (formal rulemaking).