a responsible officer other than the hearing
officer. This reflects the fact that the purpose
of the rule making proceeding is to determine
policy. Policy is not made in Federal agencies
by individual hearing examiners; rather it is
formulated by the agency heads relying heavily
upon the expert staffs which have been hired
for that purpose.
And so the Act recognizes
that in rule making the intermediate decisions
will be more useful to the parties in advising
them of the real issues in the case if such
decisions reflect the views of the agency heads
or of their responsible officers who assist them
in determining policy.

85

an

In United Steel workers of America v. Marshall, the Court of Appeals for the D.C. Circuit relied on the distinction between adjudication and rulemaking in refusing to invalidate Occupational Safety and Health Administration rule because of ex parte communications between the head of OSHA and the chief attorney on the agency's rulemaking staff. Finding no statutory basis for restricting such communications, the court rejected the petitioners claim of procedural error, reasoning that:

Rulemaking is essentially an institutional, not
an individual, process, and it is not vulnerable
to communication within an agency in the same
sense as it is to communication from without.
In an enormously complex proceeding like an
OSHA standard setting, it may simply be
unrealistic to expect an official facing a
massive, almost inchoate, record to isolate
herself from the people with whom she worked
in generating the record.

Though ex parte communications with agency staff are not prohibited by the APA, interested persons may view the rulemaking process as unfair if the rulemaking staff has unrestricted access to

84/ Attorney General's Manual on the APA 15 (1947).

85/ 647 F.2d 1189 (D.C. Cir. 1980).

86/ 647 F.2d at 1216. See also discussion of United Steel workers and Home Box Office, supra at text accompanying nn. 24-26.

al have a natural attachment to their work.

Recognizing that rulemaking staff bias may exist is eciding what to do about it. The most extreme course ency to impose separation of functions in its rulem ing this approach, the staff that originally investigat ped a proposed rule, and supported it during the publi proceeding, would be prohibited from any participa nal decisionmaking. A second, independent agency advise the agency head during deliberations on the fina ernatively, the rulemaking staff and interested person advocate their positions before a neutral presiding o en would recommend a final decision or advise the ag g a final decision.

Strict separation of functions has not been emplo

See Boyer, Phase II Report on the Trade Reg aking Procedures of the FTC, 1980 ACUS Recommen eports 33, 46-53; American Bar Ass'n, Report and Reso e Section of Antitrust Law: FTC Trade Reg aking Pursuant to the Magnuson-Moss Act (Nov. 1979),

ee Boyer Report, id., at 51-52.

ee summary of the Act's provisions, Chapter Two at

177

90

informal rulemaking. As Professor Asimow has observed, the costs of separation of functions in informal rulemaking will normally out weigh its benefits:

Aside from the lack of advantages in separating
functions in informal rulemaking, it seems clear
that separation would entail heavy losses of
expertise and substantial delay. Major
rulemaking decisions are often politically
controversial, requiring resolution of novel
issues of law and policy, as well as difficult
f actual questions of technology, economics, and
forecasting. An agency needs all the wisdom,
technical expertise, and political guidance it
can muster. At a minimum, a previously
uninvolved set of staff advisers to the
decisionmakers would need substantial time to
master the typically long and muddled file to
attain the level of sophistication that staff
advocates would already have reached. Indeed,
because new advisers may lack the technical
training, experience, and political sensitivity of
the staff advocates, that expertise might be
impossible to duplicate."

Less extreme than instituting separation of functions would be to require all rulemaking staff communications with the decisionmaker to be made on the record in public proceedings, or be recorded and later made public. The problem with this approach is that it, too, would have the practical effect of cutting off the 92 decisionmaker from valuable staff advice.

90/ Some agencies do impose separation of functions in licensing proceedings. The NRC's use of a two-staff model has been cited as one cause of severe management problems at that agency. See Asimow, When the Curtain Falls: Separation of Functions in the Federal Administrative Agencies, 81 Colum. L. Rev. 759, 804-07 (1981).

91/ Asimow, id. at 794 (citations omitted).

92/ Professor Asimow assessed this option as follows:

(Continued)

It might be suggested that adversaries could
contribute advice, evaluation, and political
guidance by on-the-record submissions, but this
suggestion is unrealistic. The decisionmakers

A more realistic approach for an agency to take to assure itself of the accuracy or completeness of rulemaking staff representations, as well as to increase public confidence in the fairness of the process, is to place in the record any documents written by the staff that summarize or characterize the information in the rulemaking record. The agency can also create an internal review process that provides a check on "tunnel vision" by the rulemaking staff. The internal review process is discussed 93 in the following chapter."

F. Communications with Consultants in Rulemaking.

Agencies sometimes use the services of outside consultants in developing rules, particularly those involving complicated questions of science or technology as to which the agency needs added expertise. The tasks consultants are asked to perform vary, but they include testifying as witnesses, conducting research, summarizing and evaluating data in the record, and helping draft portions of the final standard and its rationale.

Use by decisionmakers of consultants' reports and analyses that were not placed in the rulemaking record was challenged in 94 United Steelworkers of America v. Marshall. The Court of Appeals for the D.C. Circuit concluded that, even though the consultants had testified publicly in favor of the proposed rule and later took part in the analysis of the public record for the agency decisionmaker, they were the equivalent of agency staff and, therefore, not subject to ex parte or separation of function

Id.

desperately need help in understanding the
enormous record, weighing costs and benefits,
evaluating political realities, and assessing the
risks of judicial review. Advice of this kind,
given in the open, will be defensive and simply
echo the material that is already on record, lest
it furnish ammunition to those who would
attack the rule in Congress, the courts, or the
media. If advisers are to level with
decisionmakers, they must do so off-the-record.

93/ See Chapter Eight at p. 182. 94/ Supra note 85.

95

restraints. The opinion intimated, however, that had the consultants introduced significant new information in their reports, 96 the court would have had greater difficulty upholding the rule.

95/ Id. at 1218-20. It is noteworthy that in remarks before an ABA program a year before United Steel workers was decided, Judge Wright, author of that opinion, expressed concern "about manipulation by and of consultants in administrative proceedings...." Wright, Musings on Administrative Law, supra note 23, at 182.

96/ Id. at 1220.