Editor’s Note: CRE has had a historical interest in expanding public participation in rulemaking through its development of Interactive Public Dockets.
The June 6, 2014 Plenary Session the Administrative Conference of the United States (ACUS) addressed the concept of “ex parte” comments.
Ex parte comments as defined by federal regulators “describe a communication directed to the merits or outcome of a proceeding that, if written, is not served on all parties to the proceeding and, if oral, is made without giving all the parties to the proceeding advance notice and an opportunity to be present.”
The ACUS Committee on Rulemaking made the following recommendation:
Agencies should determine whether, and under what circumstances, ex parte communications made after the close of the comment period should be permitted and, if so, how they should be considered.
Jim Tozzi, a Public Member of ACUS, proposed an amendment that the following clause be added to the aforementioned recommendation:
“giving full consideration to the principles enunciated in Sierra Club v. Costle.”
ACUS is to be complimented for addressing a very significant issue; more specifically it has been nearly four decades since ACUS has addressed the subject of ex parte comments. See ACUS Recommendation 77-3, Ex Parte Communications in Informal Rulemaking Proceedings, (1977)—in which ACUS stated:
A general prohibition applicable to all agencies against the receipt of private oral or written communications is undesirable, because it would deprive agencies of the flexibility needed to fashion rulemaking procedures appropriate to the issues involved, and would introduce a degree of formality that would, at least in most instances, result in procedures that are unduly complicated, slow and expensive, and, at the same time, perhaps not conducive to developing all relevant information.
I call your particular attention to the charge given to the ACUS committee in 2014 that included a need to address advances in electronic docketing which has occurred over the past forty years; an arena in which I spend considerable time. As a result of technological advances there is a need to allow interested parties to communicate with regulators subsequent to the close of the public comment period. Allow me to provide several examples.
First, during the past several years the role of science has exploded in rulemaking. It is not unusual for an NPRM to include new scientific advances such as models for cell development, new procedures for risk assessment, new models for conducting benefit-cost analyses or claims that a new technology is commercially available. In response to such information it is not unusual that professional societies form working groups to address these issues and report back to the federal government on their findings. In that such studies take time it is nearly impossible to submit them to regulators prior to end of a public comment period. If the only outlet for such an expenditure of resources is a publication in the New England Journal of Medicine or a law review article it is likely that such activities will not occur in the future.
Second, there are a number of watchdog groups that scrutinize comments submitted in regulatory proceedings and make massive distributions to their followers using interactive public dockets and the social media such as Facebook and Twitter. The purpose of these information disseminations is to expose the said comments to the court of public opinion all of which occurs subsequent to the filing of comments and usually after the close of the public comment period. Why should the resultant analyses of these watchdog groups be ignored in the development of a federal regulation?
Third, the day before yesterday, a major player in Silicon Vallley announced (Launch) that it was going to utilize its massive computer capabilities to mine the information in Regulations.gov to discern trends and centers of influence in the comments submitted for particular rules. The very nature of such analyses require that the said activities occur after the close of the public comment period.
Consequently the issue facing ACUS is whether the aforementioned changes in electronic docketing are significant enough to lead ACUS not only to recommended against a “general prohibition” of ex parte comments but to endorse prevailing case law which encourages substantial public participation in the rulemaking process after the close ofthe public comment period.
I believe that one reason that regulators are hesitant to address comments submitted after the close of the public comment period is that they are concerned that the public comment period may never end. I share that concern.
But one answer is that my reading of Portland Cement is that subsequent to the close of the public comment period regulators can introduce additional information into a docket without opening the docket if there is antecedent data on the same topic in the docket.
Now allow me to address how serious the need to address in a forceful manner the choking restrictions on ex parte contact.
To gather the necessary information I approached the formidable Code of Federal Regulations (CFR) and began a stroll down Ex Parte Lane. At the corner of Ex Parte Lane and the Boulevard of Disbelief I encountered this formidable building called the Ex Parte Repository. Once I peered in the windows I saw this room filled with prohibitions on ex parte contact. Allow me to read verbatim some of the statements.
Does [agency name] policy permit ex parte contacts during the comment period?
No, during the comment period, the public docket is available for written comments from any member of the public. These comments can be examined and responded to by any interested person. Because this public forum is available, [agency name] policy discourages ex parte contacts during the comment period. They are not necessary to collect the information the agency needs to make its decision
Are any oral contacts concerning the proposal permitted during the comment period?
If you contact the agency with questions regarding the proposal during the comment period, we can only provide you with information that has already been made available to the general public. If you contact the agency to discuss the proposal, you will be told that the proper avenue of communication during the comment period is a written communication to the docket.
Does [agency name] policy permit ex parte contacts (once) the comment period has closed?
[Agency name], policy strongly discourages ex parte contacts initiated by commenters to discuss their position on the proposal once the comment period has closed. Such a contact at this time would be improper, since other interested persons would not have an opportunity to respond. If we need further information regarding a comment in the docket, [we] may request this from a commenter. A record of this contact and the information provided is placed in the docket. If we need to make other contacts to update factual information, such as economic data, we will disclose this information in the final rule docket or in the economic studies accompanying it, which are available in the docket.
In my view, the absolute, uncompromising and unyielding nature of these prohibitions is not only counter to the aforementioned technological advances I referenced but also are diametrically opposed to Open Government initiatives and the concept of an Interactive Public Docket as noted above.
I am not recommending a wholesale revision of ex parte prohibitions but only, to use the term popularized by Professor Sunstein, a slight “nudge” in the direction of allowing the public to capitalize on recent advances in electronic docketing by adding the following clause at the end of recommendation 9.
“giving full consideration to the principles enunciated in Sierra Club v. Costle.”
End of Presentation
The proposed amendment did not pass.
The Beginning of Another 20 Years War?
06/05/2014; Sierra Club v. Costle restricted to footnote 10 — not in either the preamble to, or the text of, the Draft Recommendations
06/06/2014; Sierra Club v. Costle in only footnote 3 of the ACUS Final Recommendations
L. Heinzerling, “Classical Administrative Law in the Era of Presidential Administration,” Texas Law Review, Forthcoming
J. Tozzi’s citation of the forthcoming Heinzerling Texas Law Review article in a Comment on Legal Planet
Ex Parte ACUS Report
CFPB: An Enlightened Ex Parte Policy
An Even More Enlightened EPA Policy on Ex Parte Contacts (Issued Prior to the Landmark Sierra v. Costle Decision)
Transparency and Public Participation in the Rulemaking Process U Penn Law School
Public Administration Scholars Interest in Ex Parte Contacts —The Politics of Ex Parte Lobbying: Pre-Proposal Agenda Building and Blocking During Rulemaking.
CRE has had a historical interest in expanding public participation in rulemaking through its development of Interactive Public Dockets.
Feel free to notify us at contact@thecre of those agencies who might be conducive to increasing public participation in science based rulemakings through the issuance of well defined ex parte guidance dealing with the contact of agency employees subsequent to the close of the public comment period. This increase in public participation would occur because the public would be authorized to participate in a collaborative peer review, with agency personnel, of an agency’s scientific findings contained in an NPRM and do so subsequent to the close of the public comment period. This collaborative peer review would be conducted free from the demanding time constraints imposed by the public comment period.
In furtherance of this goal it should be noted that stakeholders can petition a particular agency to issue ex parte guidance, can post the said petition on this or other websites and use other social media to garner support for the petition. Collectively these actions will provide an alternative path to address the issue described above by doing so on an agency-by-agency basis in lieu of a government-wide approach described below. Comments can be made at the bottom of this page and they may be submitted anonymously and without registration or disclosure of your email address. Those readers who wish not only to comment on articles but also wish to post their own articles, and attachments thereto, may do so in one of the forums to the right of this post.
Relevant Language from Sierra Club v. Costle
Please note that the effect of the Tozzi recommendation , as well as the views of Mr. Conrad, would have been to have ACUS incorporate the text of the landmark decision of the DC Circuit Court in Sierra Club v. Costle, 657 F.2d 298, 400-01 (D.C. Cir. 1981), into the text of a recommendation.
The relevant text of the said opinion is: “Under our system of government, the very legitimacy of general policymaking performed by unelected administrators depends in no small part upon the openness, accessibility, and amenability of these officials to the needs of the public from which their ultimate authority derives, and upon whom their commands must fall. . . . Furthermore, the importance to effective regulation of continuing contact with a regulated industry, other affected groups, and the public cannot be underestimated. Informal contacts can . . . spur the provision of information which the agency needs.”
Detailed Comments: Those wishing to file detailed comments, with attachments, should post them in the forum to the immediate right titled “Regulations Under Development”. Unlike the comments submitted below they are not published immediately but placed in a queue for immediate moderation. CRE will reference in-depth analyses of this issue which are submitted to the “Regulations Under Development” Forum on this page.