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Volume VIII: Development Of The Standard
6.0 Public Comment Period

Attachment 7: Ex Parte Contacts and EPA Rulemaking

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Volume VIII, Sec. 6.6 Attachment 7
January 1997 (8198-36-03\vol8-s6.a07) Page 1

ATTACHMENT 7. EX-PARTE CONTACTS AND
EPA RULEMAKING

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
August 4, 1977



SUBJECT: "Ex Parte" Contacts in EPA Rulemaking

FROM: The Administrator

TO: Addressees

In this memorandum I set forth the guidelines all EPA employees should follow in discussing the merits of proposed rules with interested persons outside the Agency during the period between proposal and promulgation. The Deputy Administrator and I and our immediate staffs will also observe these guidelines.

The General Counsel has recently informed you that such conversations might result in a rule being held illegal if they took place without notice and opportunity for other interested persons to participate. That advice was based on a recent decision of the United States Court of Appeals for the District of Columbia Circuit. Home Box Office Inc. v. FCC, D. C. Cir No. 75-1280 (decided March 25, 1977). A subsequent opinion by the same court has moderated that legal danger substantially. Action for Children's Television v. FCC, D. C. Cir. No. 74-2006 (decided July 1, 1977).

However, the legal danger has not disappeared. More fundamentally, I do not believe that EPA should base or appear to base its regulatory decisions on information or arguments presented informally that do not appear on the public record. Accordingly, I am establishing the following guidelines.

Behavior during crucial period between Proposal and Promulgation

During the period between proposal and promulgation of a rule, all employees may and should be encouraged to respond to inquiries about the rule, explain how it would work, and attend public meetings of interested groups (such as trade association conventions).

During this period agency employees may (and often should) hold meetings with interested persons for the purpose of better understanding any technical scientific and engineering issues involved or discussing the broader questions involved. In all cases, however, a written summary of the significant points made at the meetings must be placed in the comment file.

This requirement applies to every form of discussion with outside interested persons whether at a trade association meeting, at EPA, or over the telephone as long as the discussion is significant. The memorandum should be prepared and forwarded within two or three days of the meeting at the latest. All new data or significant arguments presented at the meeting should be reflected in the memorandum. Discussions of generalities or simple explanations of how the rule would work need not be included.

I will continue to explore with the General Counsel's office and others whether further actions to ensure that we provide full notice and opportunity for comment in all our procedures are necessary.



ADDRESSEES:
Deputy Administrator
Assistant Administrators
Deputy Assistant Administrators
Office Directors
Regional Administrators
Associate General Counsels
Regional Counsels

Attachment


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460

Office of
General Counsel

MEMORANDUM

TO: Addressees

FROM: General Counsel

SUBJECT: Home Box Office Inc., v. FCC, D.C. Cir. No. 75-1280
(decided March 28, 1977)

In the above-cited recent decision of the United States Court of Appeals for the District of Columbia Circuit, the Court raised serious questions whether informal, unpublicized contacts with interested persons concerning pending rulemakings (post-proposal) will be considered proper by the courts. The decision is too long to discuss in detail; I have attached a brief synopsis of the pertinent parts.

Because of this judicial criticism, it is important that we address in some way the problem of ex parte contacts on EPA rulemaking proceedings. I am recommending that each of you with regulatory responsibilities follow a middle course on the subject involved here. Whenever it is feasible to eliminate private conversations with a person interested in a rulemaking after the rule has been proposed, you should do so. (This would not bar routine status inquiries, etc. - only conversations directed at the merits of the rule itself.) Where this is not feasible, a memorandum to the file should be prepared by the agency participants stating in detail what happened. This memorandum should then be placed in the comment file just as if it were a public comment.

This policy should apply to telephone conversations as well as meetings. Where a communication is made in a public forum (e.g., advisory committee meeting, seminar, public hearing), these requirements need not apply. However, even though Home Box Office read literally does not apply to public meetings, the concern for an adequate record it expresses underlines the need to write down what happens at such meetings when they are held to consider a pending rulemaking.

Unpublicized meetings or telephone conversations with other Federal agencies or the Legislative Branch will be more difficult to avoid but reports of the communications should be prepared as with other interested persons or groups.

In taking final action on the proposed rules, the comments expressed in any such memoranda to the file should be considered in the same manner as other comments; discussion of the action or inaction taken in response to the comment is governed by the significance of the issue.

We of course want to continue to be as open and accessible as possible to all parties interested in our regulatory actions. Compliance with this decision during the period between proposed and final publication, need not significantly conflict with that goal. If you have any questions about this case, please call Bill Pedersen of my staff at 755-0767.


G. William Frick

ADDRESSEES:
The Administrator
Deputy Administrator
Assistant Administrators
Deputy Assistant Administrators
Office Directors
Associate General Counsels

Enclosure


Home Box Office, Inc. v FCC involved the FCC's rule limiting the extent to which cable TV systems could compete with broadcast TV. The court struck them down as too pro-broadcasting for several different reasons.

These rules of course had the highest degree of economic significance for both industries, and their final drafting had been accompanied by a veritable circus of unpublicized informal contacts by industry representatives with FCC personnel at all levels. Though the general rule had been that such contacts are not forbidden in informal rulemaking, the court held that this case demonstrated such contacts are inconsistent with the developing law of informal rulemaking and in particular with the notion that all rules be based on a record which sets forth all the factors involved for public comment. Stating that "[e]ven the possibility that there is here one administrative record for the public and this court and another for the Commission and those 'in the know' is intolerable", Slip Opinion at 89, the court laid down the following rules for the future:

...(C)ommunications which are received prior to issuance of a formal notice of proposed rulemaking do not, in general, have to be put in a public file. Of course, if the information contained in such a communication forms the basis of agency action, then, under well established principles, that information must be disclosed to the public in some form. Once a notice of proposed rulemaking has been issued, however, any agency official or employee who is or may reasonably be expected to be involved in the decisional process of the rulemaking proceeding, should "refus[e] to discuss matters relating to the disposition of a [rulemaking proceeding] with any interested public part, or an attorney or agent for any such part, prior to the [agency's] decision...(dictation omitted). If ex parte contacts nonetheless occur, we think that any written document or a summary of any oral communication must be placed in the public file established for each rulemaking docket immediately after the communication is received so that interested parties may comment thereon. Slip opinion at 97-98.

Taken literally (and the passage quoted is quite precise) this bar would apply to all agency personnel down to the lowest professional level working on the merits of a rule after its proposal. It would apply to all forms of communication on matters of substance.

ENCLOSURE

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