concluded that

disqualification standard applicable to adjudication is not appropriate for rulemaking because of the different nature of the factual conclusions reached in each type of proceeding. In so concluding, the court relied upon Professor 14 Davis' distinction between "legislative" and "adjudicative" fact." The court reasoned that even if the legislative facts in issue are

"specific" and am enable to development using trial-type procedures, they, nevertheless, are used in the formulation of a legislative-type judgment. Therefore, the court rejected the argument that the disqualification standard for adjudication should be applied in the case because the nature of the factual 15 prejudgment was the same.

After deciding the disqualification standard for adjudication did not apply to the FTC rulemaking, the ANA court had to decide what standard did apply. In formulating the standard, both of the majority judges emphasized the differences in the roles of rulemakers and adjudicators. The author of the majority opinion, Judge Tamm, stated that the "view of a neutral and detached adjudicator is simply an inapposite role model for an administrator who must translate broad statutory commands into concrete social policies. If an agency official is to be effective, he must engage in

debate and discussion about the policy matters before him."16 Judge Leventhal, in a concurring opinion, contrasted the roles of adjudicator and rulemaker, as follows:

opinion, id. at 1183.

14/ At pp. 1168-69, the court states:

The factual predicate of a rulemaking decision
substantially differs in nature and in use from
the factual predicate of an adjudicatory
decision. The factual predicate of adjudication
depends on ascertainment of "facts concerning
the immediate parties-who did what, where,
when, how, and with what motive or intent."
[Citing 1958 edition of Professor Davis'
treatise] By contrast, the nature of legislative
fact is ordinarily general, without reference to
specific parties....

15/ Id. at 1164.
T6/ Id. at 1168-69.

One can hypothesize beginning an adjudicatory
proceeding with an open mind, indeed a blank
mind, a tabula rasa devoid of any previous
knowledge of the matter. In sharp contrast, one
cannot even conceive of an agency conducting a
rulemaking proceeding unless it had delved into
the subject sufficiently to become concerned
that there was an evil or abuse that required
regulatory response. It would be the height of
absurdity, even a kind of abuse of
administrative process, for an agency to
embroil interested parties in a rulemaking
proceeding, without some initial concern that
there was an abuse that needed remedying, a
concern that would be set forth in the
accompanying statement of the purpose of the
proposed rule.

In its administrative setting an agency's effort
is not limited to one type of activity.
Investigation and policy-making are integral to
the total function just as much as
decisionmaking. It is appropriate and indeed
mandatory for agency heads and staff to
maintain contacts with industry and consumer
groups, trade associations and press,
congressmen of various persuasions, and to
present views in interviews, speeches, meetings,
conventions, and testimony....

The "clear and convincing showing of an unalterably closed mind" standard was criticized by Judge MacKinnon, in dissent, as being too high. Nevertheless, the standard enunciated in ANA was applied in Lead Industries Ass'n v. EPA 19 and United

18

Steelworkers of America v. Marshall.

20

The Administrative Conference studied the issues raised by

17/ Id. at 1176.

18/ Id. at 1181.

19/ 647 F.2d 1130, 1179 (D.C. Cir. 1980), cert. denied, 449 U.S. 1042 (1980).

20/ 647 F.2d 1189, 1209 (D.C. Cir. 1980). (Though filing a dissent in United Steel workers, id. at 1311, Judge MacKinnon did not object to the majority's use of the "unalterably closed mind" standard.)

the ANA decision and recommended that disqualification for bias in rulemaking be limited to prejudgments of particular "adjudicative" or "specific" facts, where it may be inferred from the particular statutory framework, agency procedural choices, or other special circumstances that the agency's determination of those facts is to be based on an evidentiary record developed in the 21 proceeding. The concept of "specific fact" was discussed in the ANA majority opinion, and the Conference's consultant,

Professor Peter Strauss, explains it, as follows:

A characteristic of "specific facts" is that they
do not require judgment, prediction, or policy
orientation for determination. Although not
"adjudicative facts" in the strictest sense-
involving neither specific
specific individuals nor
historic circumstances-specific facts by
hypothesis share the characteristics of
concreteness and provability that make trial-
type procedures superior for their
determination. Deter mining the ductile
strength of a given steel alloy differs from
making a judgment about the anticompetitive
impact of joint ownership of television stations
and newspapers, in just this way. Facts about
ductility can be developed through evidentiary
hearings, and are severable from policy

issues..

...

The Conference also concluded that an agency should be obliged to consider disqualifying an agency member or decisional employee only after it has been established in the proceeding that adjudicative or specific facts can be severed from policy and require resolution on an evidentiary record.

21/ ACUS Recommendation 80-4, Decisional Officials' Participation in Rulemaking Proceedings, 1 C.F.R. S 305.80-4 (1983). The recommendation is based on Strauss, Disqualification of Decisional Officials in Rulemaking, 80 Colum. L. Rev. 990 (1980).

22/ Association of Nat'l Advertisers v. FTC, supra note 10, at 1163-64.

23/ Strauss, supra note 21, at 1043 (emphasis in original).

24/ ACUS Recommendation 80-4, supra note 21 at ¶ C.

Of course, a rulemaking proceeding should be conducted with decorum and respect for the interests of all concerned. Therefore, agency officials should avoid intemperate expression or other behavior suggestive of an irrevocable commitment to a predetermined outcome of the proceeding. This does not mean, however, that agency officials may not express factual judgments based on previous experience or on information received during a proceeding; nor does it suggest that officials may not act upon or voice opinions concerning underlying issues of policy. Expressing those opinions in interchanges with committees of the Congress, other administrative bodies, the public, and regulated groups is desirable conduct for administrators, not an abnormality to be shunned.

25

Perhaps of greater significance to agency rulemakers is disqualification that is sometimes sought on the basis of an alleged 26 conflict of interests. Under Executive Order 112222 and 27 regulations of the Office of Personnel Management," federal agencies are required to regulate employee conduct with respect to conflicts of interest. Moreover, it is a criminal offense for a government official to participate personally and substantially in a "particular matter in which, to his knowledge, he, his spouse, minor child, partner, organization in which he is serving... or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest,"28

In general, the cited provisions and the requirements for

25/ Id., D.

26/3 C.F.R. 306 (1964-1965 Comp.), reprinted in 18 U.S.C. S 201 note (1976). The order was superseded in part by the Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (1978) (codified in relevant part at 5 U.S. C. app. SS 201-405). 27/5 C.F.R. SS 735.201-735.210, 735.401-735.412 (1983). 28/ 18 U.S.C. S 208 (1976). The reference to "particular matter" in S 208 can be read to exclude the application of this provision to rulemaking. However, other conflict of interest provisions, notably 18 U.S.C. S 207, refer to "a particular matter involving a specific party or parties." The absence of the "specific party or parties" qualification in S 208 is generally taken to mean that that provision applies to rulemaking. See Strauss, supra note 21, at 997 n. 27.

employee reports deal with financial or associational interests of a commercial or financial character. Agency rules often do not deal with possible conflicts arising from either prior employment or activities on behalf of political, religious, civic, or other organizations. However, the Administrative Conference recommends that agency regulations provide for recusal (i.e., withdrawal from participation) if a significant non-financial interest of the official is likely to be substantially affected by the outcome of the proceeding, and for "cooling-off" periods for new officials with respect to participation in proceedings affecting prior employers, clients, or other financial interests." The agency should make clear that these regulations are aids to agency selfmanagement, and are not intended to expand the scope of judicial review of rulemaking proceedings.

29

In summary, though the Administrative Conference takes a narrow view of the circumstances in which an agency should be obliged to disqualify a rulemaking official, it believes agencies should consider formulating standards for officials' conduct that are more exacting than the minimum legal standards. The acceptability of rules and, indeed, the repute of the administrative process may be seriously impaired if the judgment of agency officials who determine the content of rules is believed to have been tainted by conflicts of interest, inflexible prejudgment of pertinent facts, or manifestations of hostility towards particular interests. Finally, the Conference recommends that, in adopting procedures for entertaining challenges to participation of agency officials, agencies should make clear that a decisional official may voluntarily abstain from participating in a proceeding."

30

2. Oral presentations by interested persons. Participation by interested persons outside the agency may be useful in the deliberative stage of rulemaking. However, agencies should consider controlling such participation to avoid perceptions that some persons are given given preferential access to the decisionmakers. The subject of ex parte or off-the-record communications in rulemaking was extensively discussed in the

29/ ACUS Recommendation 80-4, supra note 21, at ¶ B.3. 30/ Id. at A.2.