applicable to a wide category of public officials, those officials are not prevented from expressing their views on matters pending before subject agencies. On the contrary, most Federal agencies have liberal policies relating to intervention or participation in proceedings which would be subject to the ex parte rule. The Sunshine Act, however, imposes the burden of making communications on the record of the agency proceeding, so that all participants have access and knowledge of the nature of the communications made to agency decisionmakers. The Sunshine Act prohibition against ex parte communications is directed at rulemaking on the record, that is, rulemaking involving formal hearings, and adjudicatory hearings. It does not appear that it was intended to apply to informal rule-making, the notice and comment procedure used under 5 U.S.C. Code Section 553 for the vast majority of agency decision-making. However, judicial decisions, notably Home Box Office, Inc. v. FCC, and Action for Children's Television 57/ v. FCC, appear to apply ex parte prohibitions in informal rule-making. 58/ 56/ However, more recent cases have refused to extend ex parte prohibitions to informal rulemaking beyond the specific requirements of 59/ agency rules. In Hercules, Inc. v. EPA, for example, the court held that incidental contacts within the agency between its judicial officer and the rulemaking staff for the purpose of providing good faith assistance regarding the record of a bulky and complex administrative record were permissible. 56/ 567 F.2d 9 (D.C. Cir. 1977). 57/ 564 F.2d 458 (D.C. Cir. 1977). 58/ See, Association of National Advertiser, supra; and Sierra Club v. Costle, supra. 59/ 598 F.2d 91 (D.C. Cir. 1978). While there has been an extensive debate concerning ex parte con60/ tacts, two points seem clear. First, the Administrative Procedure Act ex parte prohibitions only apply to adjudications and formal rulemakings. And second, further ex parte prohibitions may only apply under supplemental agency rules. It should also be noted that Federal agencies are free under the Sunshine Act to adopt even more stringent ex parte contact rules than are required by the law. The Federal Trade Commission has adopted extensive ex parte communications rules governing various aspects of its proceedings. Following the general direction of the Administrative Procedure Act prohibition of ex parte communications, the FTC has generally applied ex parte pro61/ hibitions to the promulgation of trade regulations. And the specific requirements of those rules address, among many other things, ex parte 62/ communications with Members of Congress concerning trade rules. 60/ See, Ex Parte Contacts in Informal Rulemaking: Home Box Office, Inc. v. FCC and Action for Children's Television v. FCC, 65 California Law Review 1315 (1977); Administrative Law--Informal Rulemaking-Agency Decisionmakers Should Refuse to Discuss the Merits of Informal Rulemaking Proceedings After Issuance of the Notice of Proposed rulemaking..., 46 George Washington Law Review 442 (1978); Carberry, Ex Parte Communications in Off-the-Record Administrative Proceedings: A Proposed limitation on Judicial Innovation, 1980 Duke Law Journal 65; Note, Judicial Control of Ex Parte Contacts, 27 De Paul Law Review 489 (1977); and Parnell, Congressional Interference in Agency Enforcement. The IRS Experience, 89 Yale Law Journal 1360 (1980). 61/ See, 16 C.F.R. Section 1.13 (c)(6). 62/ See, 16 C.F.R. Section 1.18(c)(1)(iii). In addition, the FTC has promulgated rules relating to proceedings which are in an "adjudicative status," under 16 C.F.R. 4.7, which provides as follows: 94.7 Ex parte communications. (a) Definitions. For purposes of this section, "ex parte communication" means an oral or written communica tion not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding. (b) Prohibited ex parte communications. While a proceeding is in adjudi. cative status within the Commission, except to the extent required for the disposition of ex parte matters as authorized by law. (1) No person not employed by the functions in adjudicative proceedings, other employee who is or who reasonably may be expected to be involved in the decisional process in the proceed. ing, shall make or knowingly cause to be made to any person not employed by the Commission, or to any employee or agent of the Commission who performs investigative or prosecuting functions in adjudicative proceedings, an es parte communication relevant to the merits of that or a factually relat ed proceeding. (c) Procedures. A Commissioner, the Administrative Law Judge or any other employee who is or who may reasonably be expected to be involved in the decisional process who receives or who make or knowingly causes to be made, a communication prohibited by paragraph (b) of this section shall promptly provide to the Secretary of the Commission: (1) All such written communications: (2) memoranda stating the substance of and circumstances of all such oral communications; and (3) all written responses, and memoranda stating the substance of all oral responses to the materials described in paragraphs (c) (1) and (2) of this section. The Secretary shall make relevant portions of any such materials part of the public record of the Commission, pursuant to 4.8, and place them in the docket binder of the proceeding to which it pertains but they will not be consid ered by the Commission as part of the record for purposes of decision unless introduced into evidence in the proceeding. The Secretary shall also send copies of the materials to or otherwise notify all parties to the proceeding. (d) Sanctions. (1) Upon receipt of an ex parte communication knowingly made or knowingly caused to be made by a party and prohibited by paragraph (b) of this section, the Commission. Administrative Law Judge, or other employee presiding over the proceeding may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the Commission, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation. The Commission may take such action as it consid ers appropriate, including but not limited to, action under 4.1(e)(2) and 5 U.S.C. 556(d). (2) A person, not a party to the proceeding who knowingly makes or causes to be made an ex parte commu. nication prohibited by paragraph (b) of this section shall be subject to all sanctions provided herein if he subsequently becomes a party to the proceeding. (e) The prohibitions of this section shall apply in an adjudicative proceeding from the time the Commission votes to issue a complaint pursuant to 3.11. to conduct adjudicative hearings pursuant to §3.13, or to issue an order to show cause pursuant to 3.72(b), or from the time an order by a U.S. court of appeals remanding a Commission decision and order for further proceedings becomes effective, until the time the Commission votes to enter its decision in the proceeding and the time permitted by 3.55 to seek rehearing of that decision has elapsed. For purposes of this section, an order of remand by a U.S. court of appeals shall be deemed to become effective when the Commission determines not to file a petition for a writ of certiorari, or when the time for filing such a petition has expired without a petition having been filed, or when such a petition has been denied. If a petition for reconsideration of a Commission decision is filed pursuant to 3.55, the provisions of this section shall apply until the time the Commission votes to enter an order disposing of the petition. (1) The prohibitions of paragraph (b) of this section do not apply to a communication between a member of the Commission or an employee who is or who reasonable may be expected to be involved in the decisional process in the proceeding (other than the Administrative Law Judge and any employee assisting the Administrative Law Judge in the decisional process in the proceeding) and an employee or agent of the Commission who performs investigative or prosecuting functions in adjudicative proceedings, when such communication is occasioned by and concerns: (1) The initiation, conduct, or disposition of a separate investigation or ad Judicative proceeding, whether or not It involves a party already in an adju dicative proceeding, (2) a proceeding outside the scope of 3.2, including a matter in state or federal court or before another governmental agency. (3) a nonadjudicative function of the Commission, including but not limited to an obligation under 4.11 or a communication with Congress; or (4) the disposition of a consent settlement under £ 3.25 executed by some but not all respondents: Provided, however, That to the extent such communica tion relates to a fact in issue in a proceeding in adjudicative status, such portion will be placed in the docket binder of the proceeding to which it pertains except for trade secrets or other confidential commercial or financial information. A brief statement describing the general subject matter of an ex parte communication of trade secrets or other commerical or finan cial information will be placed in the docket binder. The prohibitions of paragraph (b) of this section also do not apply to a communication between any member of the Commission, the Administrative Law Judge, or any other employee who is or who reasonably may be expected to be involved in the decisional process, and any employee who has been directed by the Commission or requested by an indivudual Commissioner or Administrative Law Judge, to assist in the decision of an adjudicative proceeding. Such employee shall not, however, have performed an investigative or prosecuting function in that or a factually related proceeding. [42 FR 43974, Sept. 1, 1977, as amended at 44 FR 40637, July 12, 1979; 46 FR 32435, June 23, 1981) |