AR ཝཱཝཱ Washington, D.C. 20540 Congressional Research Service The Library of Congress April 20, 1983 ΤΟ FROM : House Agriculture Committee Subcommittee on Department Operations, Research, and Attention: Charles M. Benbrook, Staff Director : American Law Division SUBJECT: Legal Analysis of What Constitutes an Ex Parte Communication and What Constitutes the Public Record Pursuant to your request, we have reviewed the relevant statutory and case law material concerning (1) ex parte communications and (2) the public record. Our discussion regarding the current law governing each respectively follows. For background information concerning what should comprise the public record, we enclose a copy of Pedersen, "Formal and Informal Rulemaking," 85 Yale L.J. 38 (1975). I. WHAT CONSTITUTES AN EX PARTE COMMUNICATION? Ex parte communications (also known as ex parte contacts) are off-therecord meetings and correspondence conducted between agency decisionmakers and interested persons to a rulemaking after the close of the public comment period and before the final decision is released. The timing is very crucial because the terminology "ex parte communication" or "ex parte contact" in and of itself implies some unlawfulness. The Administrative Procedure Act (APA) defines an ex parte communication as "an oral or written communication 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 covered by this chapter." 5 U.S.C. 551 (14). CRS-2 Because Congress recognized the problems with ex parte communications in some agency proceedings, in 1976 it passed the Government in the Sunshine Act, which in one section amended the APA requirements concerning ex parte contacts. 5 U.S.C 557(d)(1). When read literally, this new language seems to apply an absolute prohibition because it specifically states that "no interested person outside the agency" can make ex parte communications. 5 U.S.C. 557(d)(1)(A). A review of the pertinent legislative history of the Sunshine Act seems to indicate further that "interested person" should be interpreted to include government officials, including members of Congress. (See H.R. Rept. No. 94-880 (Part I), 94th Cong., 2d Sess. 19, 21 (1976)). The action taken by Congress in 1976 in amending the APA resulted in prohibiting ex parte contacts in the context of formal, on-the-record rulemaking. This is apparent from the language in the statute. However, it is also clear that at that time, Congress chose not to extend the blanket prohibition to informal, notice and comment rulemaking. The traditional view has been that the standards for ex parte communications in formal rulemaking proceedings are not applicable to informal rulemaking. This is partly because ex parte communication had been regarded as a proper element of the informal nature of opinion shaping and information gathering in agency rulemaking, and unless there was a requirement that the rules be made on the record, "the use of extrarecord information did not appear to present a due process or other concern until recently..." 1/ The traditional approach taken by courts reviewing informal agency actions had been to rely exclusively on the APA requirements to ensure that there was a fully developed rulemaking record within the statutory limits defining agency discretion. As a result, informal rulemaking proceedings in literal compliance with Sections 553 2/ and 706(2)(A) 3/ of the APA would be accepted by the courts as being legally based. (See American Airlines, Inc. v. CAB, 359 F.2d 624, 629 (D.C. Cir.), cert. denied, 1/ Gellhorn and Robinson, "Rulemaking 'Due Process': An Inconclusive Dialogue," 48 U. Chi. L. Rev. 201, 210-211 (1981). 2/ 5 U.S.C. 553 provides for three steps that must be followed in informal rulemaking (not utilizing record evidence): (1) publication of a detailed notice of proposed rulemaking in the Federal Register; (2) the designation of a period of time that provides an opportunity for interested parties to submit comments on the proposed rules; and (3) a concise and general explanation of the basis and purpose of the rules if they are adopted. 3/ 5 U.S.C. 706(2)(A) provides for the standard of judicial review. An agency's decision cannot be upheld on appeal if it is "arbitrary, capricious, or not otherwise in accordance with law." CRS-3 385 U.S. 843 (1966); Automotive Parts and Accessories Assn. v. Boyd, 407 F.2d 330, 343 (D.C. Cir. 1968)). Thus, the tendency of reviewing courts had initially been to try to maintain the flexibility and efficiency characteristic of informal rulemaking in the decisionmaking process. The problem that developed, however, was that the interest in maintaining agency flexibility tended to predominate in the direction of the agency's interest in simplifying the procedures governing its policymaking. Concern arose for the fairness of agency decisionmaking. The growing prevalence of unrestricted ex parte communications in informal rulemaking raises at least two potential dangers: (1) depriving other rulemaking participants of the opportunity to respond to new information or contentions raised by other participants; and (2) hindering judicial review by obfuscating the full administrative record used by the agency in the ultimate formulation of its policies. With respect to the second danger, when a court does not have before it the entire record upon which the agency based its decision, it becomes practically impossible for the reviewing court to determine whether the agency's actions have been in accord with 5 U.S.C. 706)(2) (A), i.e. if its decision was "arbitrary, capricious, or not otherwise in accordance with law." Thus the tendency in recent years has been for reviewing courts to look at the administrative agencies' decisionmaking procedures in informal rulemaking more closely and more critically. Courts have been examining the manner in which informal rulemaking proceedings are conducted. 4/ They have also been scrutinizing more carethe factual basis behind the agencies' determinations. 5/ 4/ See Portland Cement Assn. v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973); Mobil Oil Corp. v. FPC, 483 F.2d 1238 (D.C. Cir. 1973); International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973). 5/ See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). CRS-4 One of the first reported decisions banning ex parte contacts in informal rulemaking was Sangamon Valley Television Corp. v. United States, 269 F.2d 221 (D.C. Cir. 1959). The facts in this case relate to an informal rulemaking proceeding at the Federal Communications Commission (FCC) where the Table of Television Channel Assignments was amended by assigning a VHF channel in Springfield, Illinois to St. Louis, Missouri. After the period for written public comments had expired, a representative of a UHF station in St. Louis, which wanted a new VHF channel assigned in St. Louis, wrote a letter to each of the FCC commissioners arguing that a VHF channel in St. Louis had greater potential for reaching more homes in the State of Illinois than would one based in Springfield. These letters were not made part of the public record, i.e. no member of the general public could have access to examine them. Thus, parties opposing the change from Springfield to St. Louis had no way of expressing their opposing views concerning the new data contained in these letters. It turned out that the FCC subsequently had in fact relied upon the information in these letters when it approved the change. The Court of Appeals for the D.C. Circuit in Sangamon rejected the Commission's contention that such contacts, i.e. the letters sent to the FCC commissioners after the close of the public comment period, were permissible in rulemaking and held them to be improper. The court stated: Whatever the proceeding may be called it 269 F.2d 221, 224 (D.C. Cir. 1959). Sangamon was decided in 1959 and dealt with an informal rulemaking situation, although there were some quasi-adjudicatory overtones. Nevertheless, after the decision, very little developed in the following twenty years or so concerning the application of its principles. While the D.C. Circuit in Sangamon established a prospective ban on ex parte communications for any administrative agency informal rulemaking involving CRS-5 the "resolution of conflicting private claims to a valuable privilege," after the decision there appeared no explanation in subsequent cases of what the court really meant. The APA in 5 U.S.C. 553 does not expressly warrant it. Nor does the due process clause of the Constitution require it. It appears that the significance of the conclusion in Sangamon lies more in the general notions of fairness. Informal rulemaking did increase fairly substantially after Sangamon and as has already been pointed out, for approximately twenty years, there was no apparent action to place curbs on ex parte communications. Thus, what seemed to be a broad principle announced in Sangamon proved to have limited significance at least between 1959 and 1977. 6/ In 1977, the U.S. Court of Appeals, D.C. Circuit ruled in Home Box Office, Inc. v. FCC, 567 F.2d 9, cert. denied 434 U.S. 829 (1978), that ex parte communications between interested parties and agency decisionmakers were impermissible in all rulemaking proceedings. The court in Home Box Office overturned FCC rules restricting pay cable television programming. The rules had been adopted after a proceeding which complied with 5 U.S.C. 553. In Home Box Office, the FCC was concerned with revising its rules restricting pay exhibition of programs on broadcast stations and cable television systems. The FCC first issued its notice of proposed rulemaking and suggested in it that the pay cable proceeding was open to ex parte contacts. In the final weeks between the last oral argument and the FCC's decision, numerous representatives of the industry which would probably be affected, e.g. cable, professional sports, broadcast and motion picture, carried out an extensive lobbying effort aimed specifically at the FCC commissioners and parties involved in making the ultimate decision. The FCC's final rules represented a carefully structured compromise which resulted in restricting the availability of sport events and feature films on pay cable television systems. The court of appeals in Home Box rejected these rules on the following grounds: (1) they exceeded the FCC' statutory authority; (2) they were inconsistent with the First Amendment; (3) there was no support in the record for them; and (4) they were broader than what was essential to meet the asserted governmental interest. 567 F.2d 9 43-51 (D.C. Cir. 1977). The court made a point of objecting to the meetings between FCC decisionmakers and industry lobbyists which the court termed ex parte communications that were improper because they took place after the period for public comment was over. Id. at 52. 6/ See Gellhorn and Robinson, supra, at 212. |