This section of the FEDERAL REGISTER

contains documents other than rules or

proposed rules that are applicable to the

public. Notices of hearings and investigations,

committee meetings, agency decisions and

rulings, delegations of authority, filing of

petitions and applications and agency

statements of organization and functions are

examples of documents appearing in this

section.

Notices Federal Register

35988 

Vol. 79, No. 122 

Wednesday, June 25, 2014 

1 5 U.S.C. § 552, as amended. 

2Openness Promotes Effectiveness in our 

National [OPEN] Government Act of 2007, Pub. L. 

No. 110–175, 121 Stat. 2524 (codified at 5 U.S.C. 

§ 552), § 2(4). See also Presidential Memorandum of 

January 21, 2009, Freedom of Information Act, 

which stated, ‘‘The [FOIA] should be administered 

with a clear presumption: In the face of doubt, 

openness prevails.’’ 74 Fed. Reg. 4683 (Jan. 26, 

2009). 

ADMINISTRATIVE CONFERENCE OF 

THE UNITED STATES 

Adoption of Recommendations 

AGENCY: Administrative Conference of 

the United States. 

ACTION: Notice. 

SUMMARY: The Administrative 

Conference of the United States adopted 

four recommendations at its Sixtieth 

Plenary Session. The appended 

recommendations address: Resolving 

FOIA Disputes Through Targeted ADR 

Strategies; Government in the Sunshine 

Act; Guidance in the Rulemaking 

Process; and ‘‘Ex Parte’’ 

Communications in Informal 

Rulemaking. 

FOR FURTHER INFORMATION CONTACT: For 

Recommendation 2014–1, David 

Pritzker; for Recommendation 2014–2, 

Reeve Bull; for Recommendation 2014– 

3, Funmi Olorunnipa; and for 

Recommendation 2014–4, Emily 

Bremer. For all four of these actions the 

address and phone number are: 

Administrative Conference of the 

United States, Suite 706 South, 1120 

20th Street NW., Washington, DC 20036; 

Telephone 202–480–2080. 

SUPPLEMENTARY INFORMATION: The 

Administrative Conference Act, 5 U.S.C. 

591–596, established the Administrative 

Conference of the United States. The 

Conference studies the efficiency, 

adequacy, and fairness of the 

administrative procedures used by 

Federal agencies and makes 

recommendations to agencies, the 

President, Congress, and the Judicial 

Conference of the United States for 

procedural improvements (5 U.S.C. 

594(1)). For further information about 

the Conference and its activities, see 

www.acus.gov. At its Sixtieth Plenary 

Session, held June 5–6, 2014, the 

Assembly of the Conference adopted 

four recommendations. 

Recommendation 2014–1, Resolving 

FOIA Disputes Through Targeted ADR 

Strategies, addresses more effective use 

of alternative dispute resolution (ADR) 

approaches to help resolve disputes 

arising under the Freedom of 

Information Act (FOIA). The OPEN 

Government Act of 2007 created the 

Office of Government Information 

Services (OGIS), a part of the National 

Archives and Records Administration, 

to assist in the resolution of FOIA 

disputes through use of mediation and 

other ADR techniques. The 

recommendation suggests ways that 

OGIS can maximize the effectiveness of 

its resources for this purpose. The 

recommendation also suggests steps 

agencies can take to prevent or resolve 

FOIA disputes, including cooperating 

with OGIS and making FOIA staff and 

requesters aware of OGIS services. 

Recommendation 2014–2, 

Government in the Sunshine Act, 

highlights best practices designed to 

enhance transparency of 

decisionmaking at multi-member boards 

and commissions subject to the 

Government in the Sunshine Act. The 

recommendation urges covered agencies 

to provide a description of the primary 

mechanisms for conducting business, 

describe substantive business disposed 

of outside of open meetings subject to 

the Act (with appropriate protections for 

information made exempt from 

disclosure), and exploit new 

technologies to disseminate relevant 

information more broadly. 

Recommendation 2014–3, Guidance 

in the Rulemaking Process, identifies 

best practices for agencies when 

providing guidance in preambles to 

final rules. It suggests ways that 

agencies can improve the drafting and 

presentation of these preambles, 

including making it easier to identify 

any guidance content. The 

recommendation also urges agencies to 

ensure that users of their Web sites can 

easily locate the required small entity 

compliance guides. 

Recommendation 2014–4, ‘‘Ex Parte’’ 

Communications in Informal 

Rulemaking, provides guidance and best 

practices to agencies for managing ‘‘ex 

parte’’ communications between agency 

personnel and nongovernmental 

interested persons regarding the 

substance of informal rulemaking 

proceedings conducted under 5 U.S.C. 

553. 

The Appendix below sets forth the 

full texts of these four 

recommendations. The Conference will 

transmit them to affected agencies, 

Congress, and the Judicial Conference of 

the United States. The 

recommendations are not binding, so 

the entities to which they are addressed 

will make decisions on their 

implementation. 

The Conference based these 

recommendations on research reports 

that are posted at: www.acus.gov/60th. 

A video of the Plenary Session is 

available at the same Web address, and 

a transcript of the Plenary Session will 

be posted when it is available. 

Dated: June 20, 2014. 

Shawne C. McGibbon, 

General Counsel. 

APPENDIX—RECOMMENDATIONS OF 

THE ADMINISTRATIVE CONFERENCE 

OF THE UNITED STATES 

Administrative Conference Recommendation 

2014–1 

Resolving FOIA Disputes Through Targeted 

ADR Strategies 

Adopted June 5, 2014 

The Freedom of Information Act (FOIA) 1

makes available to any person, upon request, 

any reasonably described agency record that 

is not exempt under nine specified 

categories. Congress has stated: ‘‘disclosure, 

not secrecy, is the dominant objective of the 

Act.’’ 2 FOIA provides a two-level agency 

process for decisions on requests for access 

to agency records: (1) an initial determination 

that is ordinarily made by the component of 

the agency with primary responsibility for 

the subject matter of the request; and (2) an 

appeal to an authority under the head of the 

agency in the case of an adverse initial 

determination. A requester’s formal recourse 

following an adverse determination on 

appeal (or the agency’s failure to meet the 

statutory time limits for making a 

determination) is a suit in federal district 

court to challenge the agency action or 

inaction. Attaining the highest level of 

compliance at the agency level, without the 

need for resort to litigation, has long been 

recognized as a critical FOIA policy 

objective. A series of amendments to the Act 

over the years has provided for more detailed 

monitoring of agency compliance and 

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3The year 2012 saw the highest number of FOIA 

requests in the history of the law: a striking 650,000 

requests were filed with agencies throughout the 

Executive Branch by individuals and organizations 

seeking government information. Data from the 

Administrative Office of the United States Courts 

indicate that the number of FOIA cases has varied 

within a range of 280 to 388 over fiscal years 2007 

through 2013. Annual agency FOIA litigation costs 

hover around $23 million—a conservative estimate 

by some accounts. 

4See ACUS Statement #12, 52 Fed. Reg. 23,636 

(June 24, 1987). 

5OPEN Government Act of 2007, supra note 2, 5 

U.S.C. § 552(a)(6)(B)(ii). 

6However, the legislation (OPEN Government Act 

of 2007, supra note 2) does not use the term ‘‘FOIA 

ombudsman.’’ 

7 5 U.S.C. § 552(h)(3). 

8Although either the requester or the agency 

could ask OGIS for an advisory opinion, OGIS 

should have discretion to determine whether to 

initiate the advisory opinion process. An OGIS 

decision whether or not to issue an advisory 

opinion would likely not be subject to judicial 

review. See Heckler v. Chaney, 470 U.S. 821 (1985). 

The statute expressly uses the phrase, ‘‘at the 

discretion of the Office.’’ 

9OGIS has described its advisory opinion 

authority as follows: ‘‘OGIS also is authorized to 

Continued 

established agency mechanisms to promote 

compliance. Despite these efforts, several 

hundred agency FOIA determinations 

adverse to requesters are challenged annually 

in federal courts,3 and it is widely assumed 

that a substantial number of other noncompliant agency FOIA determinations are 

not taken to court by requesters, primarily for 

reasons of cost and delay that inhere in 

federal court litigation. 

The Administrative Conference considered 

the potential value of ‘‘alternative dispute 

resolution’’ (ADR) in relation to FOIA 

disputes in 1987, at a time when federal 

agency use of ADR processes was not as 

common as today, and concluded that the 

data then available did not clearly establish 

the need for either an independent 

administrative tribunal to resolve FOIA 

disputes or the appointment of a FOIA 

ombudsman within the Department of 

Justice. However, the Conference noted that 

greater reliance on informal approaches to 

FOIA dispute resolution could result in more 

effective handling of some FOIA disputes 

without resort to court litigation.4

The OPEN Government Act of 2007 

reflected concerns that some agencies, as a 

whole, were not implementing FOIA as 

Congress intended. Significantly, the 2007 

legislation included, for the first time in 

FOIA’s history, provisions that directed 

agency FOIA officers to ‘‘assist in the 

resolution of disputes’’ between the agency 

and a FOIA requester.5 This legislation 

created in each agency the positions of a 

Chief FOIA Officer and FOIA Public 

Liaisons, and established the Office of 

Government Information Services (OGIS) in 

the National Archives and Records 

Administration, to perform a broad range of 

functions aimed at improving FOIA 

compliance and providing assistance to 

requesters. Those two developments are the 

only government-wide FOIA dispute 

resolution process changes subsequent to the 

earlier Administrative Conference study. 

The Role of the Office of Government 

Information Services 

OGIS has been in operation since 

September 2009. Acting, in effect, as a ‘‘FOIA 

ombudsman,’’ OGIS has a hybrid mission 

that includes: identifying and resolving 

individual FOIA disputes between requesters 

and agencies through mediation services; 

reviewing agency FOIA policies, procedures 

and compliance with FOIA; and making 

recommendations to Congress and the 

President to improve the administration of 

FOIA. 

The Administrative Conference undertook 

a study in 2013 to examine the issues and 

other case characteristics that most 

commonly lead to litigated FOIA disputes, 

and to consider whether particular types of 

ADR approaches are likely to be especially 

effective in resolving identified types of 

FOIA cases or issues in an efficient and 

effective manner short of litigation. The 

current study reviewed FOIA cases closed in 

federal district courts in fiscal years 2010 

through 2013 in order to categorize the bases 

for the most common types of FOIA lawsuits. 

Review of cases was supplemented by other 

case data and interviews with individuals 

whose experience with the FOIA process 

could give an understanding of the varying 

dimensions and perspectives of that process. 

The Conference’s study found wide 

variation in the form and substance of FOIA 

disputes between requesters and agencies, in 

the motivation, resources, and sophistication 

of requesters, and in the missions and the 

level of interest in agency records. The 

interplay of these variables has led to the 

conclusion that no simple formula for linking 

a particular set of case characteristics with 

particular ADR approaches is likely to be 

very fruitful. Instead, it appears that the most 

important targeting should be directed 

toward the dispute resolution mechanism 

itself. It is vital that OGIS, a mechanism 

external to the agencies that is open to all 

issues, all requesters, and all agencies, have 

appropriate FOIA dispute resolution 

authority, expertise, and resources. 

In practice, OGIS’s caseload is determined 

by whoever happens to contact OGIS, 

typically by telephone or e-mail inquiries, 

some of which come from individuals who 

have never filed a FOIA request. Often such 

individuals seek only modest help, such as 

where to file or what form to use to obtain 

the desired records or information. Many of 

these inquiries are handled routinely on the 

day they are received. OGIS classifies such 

contacts as ‘‘Quick Hits.’’ This service, along 

with the informational resources on the OGIS 

website, is frequently sufficient to assist the 

least sophisticated users of FOIA and should 

be continued. This is a low cost/high value 

function that has instant payoff for a broad 

constituency. 

OGIS Caseload 

Although many inquiries to OGIS are 

routine in nature, others are not. Also, the 

issues involved in an inquiry sometimes turn 

out to be more complicated than initially 

realized. In such cases, OGIS will gather 

information from the requester and make a 

preliminary assessment of the case, to decide 

whether it seems appropriate for an OGIS 

contact with the relevant agency to find out 

the status of the case and whether the agency 

has taken a position. Since the statute does 

not place any duty on the agency to 

participate in the OGIS mediation process, 

OGIS depends on agency cooperation. The 

relatively small fraction of agency denials 

that are appealed to the courts, together with 

agency success rates in FOIA litigation, may 

serve as a disincentive to agencies to 

participate meaningfully in a dispute 

resolution process at this point. 

Although the Office of Information Policy 

(OIP) in the Department of Justice (DOJ) 

historically considered itself to have a role as 

‘‘FOIA ombudsman,’’ the legislation that 

created OGIS clearly assigned a mediation 

role to OGIS and, in effect, a ‘‘FOIA 

ombudsman’’ responsibility.6 Underlying 

this policy decision was the fact that DOJ, 

including OIP, historically had both a FOIA 

compliance promotion function and a 

responsibility to represent agencies in 

lawsuits arising under FOIA. Under the 

OPEN Government Act of 2007, OGIS has 

statutory responsibility to promote 

compliance but possesses no agency 

representation responsibilities. 

OGIS has implemented its ombudsman 

responsibility through facilitating 

communications between a requester and the 

agency, helping the parties address factors 

contributing to delay, or actually engaging in 

a mediating process to achieve a resolution 

satisfactory to both sides. The 

recommendations addressed to OGIS that 

follow are intended to optimize the use of its 

resources. OGIS encourages requesters to 

complete the agency administrative appeal 

process prior to significant OGIS engagement, 

so as to give the agency an opportunity to 

reconsider its initial decision to deny a 

request. Whether or not a requester has 

exhausted the agency appeal process, if the 

unresolved portions of the request appear 

meritorious, OGIS assistance should focus on 

enabling the requester and the agency to 

engage in a discussion that resolves the 

dispute or deters litigation, either through 

reconsideration of the agency position or 

through the agency providing a fuller, more 

informative explanation for its position. 

The OPEN Government Act of 2007, in 

addition to authorizing OGIS to provide 

mediation services to resolve FOIA disputes, 

provided that OGIS, at its discretion, may 

offer advisory opinions if mediation has not 

resolved the dispute.7 However, OGIS has 

not yet chosen to exercise this authority.8

The statutory linkage of OGIS advisory 

opinions to its mediation function is not 

ideal because a requester’s or an agency’s 

anticipation of OGIS’s taking a public 

position in a particular case in which OGIS 

seeks to serve as a neutral mediator may 

discourage parties from participating in 

mediation. It therefore is important for OGIS 

to distinguish between expressing views on 

systemic issues or identifying broad trends or 

patterns and issuing advisory opinions that 

address the facts of individual cases it has 

sought to mediate. In appropriate cases, 

issuance of an advisory opinion may forestall 

potential litigation, and OGIS should make 

the parties aware of this authority.9 Factors 

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issue advisory opinions, formal or informal. By 

issuing advisory opinions, OGIS does not intend to 

undertake a policymaking or an adjudicative role 

within the FOIA process, but instead will 

illuminate novel issues and promote sound 

practices with regard to compliance with FOIA.’’ 

Available at https://ogis.archives.gov/about-ogis/

ogis-reports/the-first-year/the-ogis-mission.htm. 

10See United States v. Mead Corp., 533 U.S. 218 

(2001) (holding that a court may find persuasive, to 

some degree, the reasoning of an agency position 

that itself is not entitled to judicial deference under 

Chevron U.S.A. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984)). 

11OGIS has described its relationship with 

agency FOIA Public Liaisons as follows: 

While the OPEN Government Act’s definition of 

a [FOIA Public Liaison (FPL)] is simple and 

straightforward, we know that the reality of their 

positions is anything but. Some agencies have 

created new FPL positions that are completely 

dedicated to assisting requesters and resolving 

disputes. Other agencies—many of them smaller 

agencies—added the FPL tasks listed in the Act to 

the already-full plate of someone within the FOIA 

shop. We’ve also found that FPLs have a variety of 

approaches to their job, including everything from 

agitating for change within agencies to reiterating 

the party line. 

http://blogs.archives.gov/foiablog/2011/06/09/

whats-a-foia-public-liaison. 

12OGIS itself has recommended such notice in 

the following form: 

As part of the 2007 FOIA amendments, the Office 

of Government Information Services (OGIS) was 

created to offer mediation services to resolve 

disputes between FOIA requesters and Federal 

agencies as a non-exclusive alternative to litigation. 

Using OGIS services does not affect your right to 

pursue litigation. 

Available at https://ogis.archives.gov/about-ogis/

working-with-ogis/Standard-OGIS-Language-forAgencies.htm. OIP also has encouraged agencies to 

follow this practice. Available at http://www.

justice.gov/oip/foiapost/2010foiapost21.htm. 

such as potential breadth of application and 

frequency of occurrence of an issue, along 

with consideration of caseload 

manageability, should be among the primary, 

though not the exclusive, determinants for 

OGIS in deciding whether or not to initiate 

the advisory opinion process. An OGIS 

advisory opinion might receive judicial 

consideration in a FOIA suit in which the 

advisory opinion is before a court, whether 

in the dispute which led to the opinion or 

another in which that issue is raised.10

Role of FOIA Public Liaisons 

The FOIA Public Liaison role in each 

agency was created by the OPEN Government 

Act of 2007 specifically to foster assistance 

to FOIA requesters. Preventing or resolving 

FOIA disputes within agencies through the 

work of Public Liaisons advances the goals of 

the Act and can relieve the dispute resolution 

burden of both OGIS and the courts. These 

agency officials should be given adequate 

authority and support from agency 

leadership for carrying out their statutory 

dispute resolution function, including 

appropriate training. 

Agency FOIA Public Liaisons, under the 

direction of their Chief FOIA Officers, should 

be encouraged to seek OGIS mediation or 

facilitation services at any stage in the 

processing of a request when it appears to the 

agency that OGIS engagement may aid in the 

resolution of a request. In such cases, if the 

requester agrees to participate, OGIS should 

make its services available whether or not the 

appeals process has been exhausted or any 

applicable time limit has expired. This 

opportunity for agency engagement of OGIS 

recognizes that (a) once an agency has made 

a final determination on a request it is less 

likely than a requester to seek OGIS 

assistance, and (b) agency-sought OGIS 

engagement may provide one of the most 

fruitful settings in which to obtain an 

informal resolution.11 Whether or not an 

agency chooses to seek OGIS assistance, each 

agency, in any appeal determination letter in 

which a request is denied in whole or in part, 

should notify the requester of the availability 

of OGIS mediation or facilitation services as 

a non-exclusive alternative to litigation.12

Congress and the Executive Branch should 

recognize the largely distinct dispute 

resolution and compliance promotion roles 

of OGIS, agency Chief FOIA Officers, and the 

Department of Justice, as a collective set of 

administrative mechanisms sharing the goal 

of avoiding unnecessary FOIA litigation. 

Recommendation 

Recommendations to the Office of 

Government Information Services (OGIS) 

1. OGIS, a part of the National Archives 

and Records Administration, should 

continue to provide its ‘‘Quick Hit’’ service 

and the informational resources on its 

website, as principal means of assisting the 

least sophisticated users of the Freedom of 

Information Act (FOIA). 

2. Requesters may appropriately seek 

assistance from OGIS at any stage of the 

FOIA process. However, because the 

opportunity for a FOIA appeal within the 

agency is an important component of the 

process, OGIS should continue to encourage 

requesters to complete that step prior to 

significant OGIS engagement. 

3. OGIS should continue to provide both 

facilitation and mediation assistance to 

requesters and agencies, depending on the 

nature of the issues in dispute. 

(a) For delay issues, OGIS assistance 

should focus on practical steps that, with 

agency cooperation, might facilitate 

processing of the request. 

(b) For substantive issues, whether or not 

the requester has exhausted the agency 

appeal process, if the unresolved portions of 

the request appear meritorious, OGIS 

assistance should focus on enabling the 

requester and the agency to engage in a 

discussion that resolves the dispute without 

litigation, either through agency 

reconsideration of its position or through 

provision of a more informative explanation 

of the agency’s decision. 

4. In appropriate situations, OGIS should 

make use of its statutory, discretionary 

authority to issue advisory opinions. In 

implementing this authority, OGIS should 

distinguish between issuance of an advisory 

opinion in connection with (a) a systemic 

issue or identification of a broad trend or 

pattern, and (b) application of FOIA to the 

facts of an individual case, for which OGIS 

taking a position on an issue could be 

perceived to undercut its ability to act as a 

neutral mediator. Factors such as potential 

breadth of application, frequency of 

occurrence of an issue, and caseload 

manageability should be among the primary, 

though not the exclusive, determinants for 

OGIS’s decision whether to initiate the 

advisory opinion process. 

5. To the extent that agency and OGIS 

resources permit, OGIS should consider ways 

to acquire better data from both agencies and 

requesters on the kinds of issues that have 

led to recurring or protracted FOIA disputes. 

Such efforts may include working with 

agencies and others to create a database of 

consistent information on litigated issues. It 

may also be useful for OGIS to contact former 

litigants to gain a better understanding of 

their awareness and usage of OGIS or other 

sources of dispute resolution services. 

Recommendations to Agencies 

6. All agencies, acting in a spirit of 

cooperation, should affirmatively seek to 

prevent or resolve FOIA disputes to the 

greatest extent possible. In addition, all 

agencies, through their FOIA Public Liaisons 

under the direction of their Chief FOIA 

Officers, should seek OGIS mediation or 

facilitation services at any stage in the 

processing of a request when it appears to the 

agency that OGIS engagement may aid in the 

resolution of that request. As early in the 

dispute resolution process as possible, the 

agency should provide the requester and 

OGIS with sufficient detail about its position 

to enable the requester to make a 

knowledgeable decision on whether to 

pursue the request further. 

7. All agencies, in any appeal 

determination letter in which a request is 

denied in whole or in part, should notify the 

requester of the availability of OGIS 

mediation or facilitation services as a nonexclusive alternative to litigation. Agency 

websites and FOIA regulations should call 

attention to the dispute resolution services 

available from OGIS. 

8. All agencies should take steps to 

maximize the effectiveness of their FOIA 

Public Liaisons in fulfilling the dispute 

resolution function that the Act assigns to 

Public Liaisons. Agency websites, as well as 

initial response letters to FOIA requests, 

should call attention to the problem 

resolution assistance available from Public 

Liaisons. In addition, agency leadership 

should provide adequate authority and 

support to Public Liaisons and should ensure 

they receive necessary training, including in 

dispute resolution, and are made aware of the 

services offered by OGIS. 

9. Upon request by the Director of OGIS, 

all agencies should cooperate fully with 

OGIS efforts to mediate or otherwise facilitate 

the resolution of individual FOIA disputes. 

Similarly, agencies should cooperate with 

efforts by OGIS to obtain consistent and 

comparable data relating to FOIA litigation, 

to the extent permitted by law and agency 

resources. 

Administrative Conference Recommendation 

2014–2 

Government in the Sunshine Act 

Adopted June 5, 2014 

In the late 1960s and 1970s, in the wake 

of increasing public vigilance concerning the 

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1Pub. L. No. 94–409, 90 Stat. 1241 (1976) (5 

U.S.C. § 552b (2006)). 2 5 U.S.C. § 552b. 

3There are approximately 70 such agencies in the 

federal government. Richard K. Berg, Stephen H. 

Klitzman, & Gary J. Edles, An Interpretive Guide to 

the Government in the Sunshine Act 259–63 (2d ed. 

2005); David E. Lewis & Jennifer L. Selin, 

Sourcebook of United States Executive Agencies 

127 (ACUS 1st ed., 2d printing 2013). 

4 5 U.S.C. § 552b(c). 

5See id. § 552b(a)(2) (defining ‘‘meeting’’ as any 

gathering featuring deliberations of ‘‘at least the 

number of individual agency members required to 

take action on behalf of the agency’’); see also S. 

Rep. No. 94–354, at 19 (1975). 6Commc’ns Sys., Inc. v. Fed. Commc’ns Comm’n, 

595 F.2d 797, 798–99, 801 (D.C. Cir. 1978). 

7Reeve T. Bull, The Government in the Sunshine 

Act in the 21st Century 57 (Mar. 10, 2014) (citing 

research conducted by Professor Bernard Bell), 

available at http://acus.gov/report/final-SunshineAct-report. 

8 Id. at 25. 

9 Id. at 19–20. 

10 Administrative Conference of the United 

States, Recommendation 84–3, ¶ 2, 49 Fed. Reg. 

29,942 (July 25, 1984). 

11 Administrative Conference of the United 

States, Report and Recommendation by the Special 

Committee to Review the Government in the 

Sunshine Act, 49 Admin. L. Rev. 421, 427 (1997) 

(the meeting summary ‘‘would indicate the date, 

time, participants, [and] subject matters discussed, 

and [would contain] a review of the nature of the 

discussion’’). 

12 Id. at 427–28. In 1984, the Administrative 

Conference similarly recommended that Congress 

‘‘should consider whether the present restrictions 

on closing agency meetings are advisable’’ and 

examine statutory changes that might promote 

greater collegiality among board and commission 

members without materially undermining 

governmental transparency. Administrative 

Conference of the United States, Recommendation 

84–3, Improvements in the Administration of the 

Government in the Sunshine Act, 49 Fed. Reg. 

29,942 (July 25, 1984). 

13 A pilot program along the lines of the 1995 

recommendation permitting one or more agencies to 

hold private meetings would provide empirical 

evidence concerning whether such a policy change 

would promote collegiality without undermining 

the Act’s overarching purpose of promoting 

transparency. The research for the instant 

recommendation in no way suggested that such a 

pilot program would be infeasible or undesirable, 

and, if some agencies are interested in participating, 

Congress may wish to authorize such a program and 

track the results to determine whether to expand it 

to all covered agencies. The Conference remains 

interested in revisiting the 1995 proposal, and, if 

adopted, the pilot program would ideally include 

multiple agencies, given that the dynamics vary 

from agency to agency. 

14 For instance, several agency officials expressed 

uncertainty concerning the ability of members to 

hold preliminary discussions or to conduct 

‘‘brainstorming’’ sessions and voiced concern that 

the Act may impede collegiality. See Bull, supra 

note 7, at 52–55, 64–67. The obligations of the 

Sunshine Act present special challenges for 

agencies having three members, either from their 

structure or from vacancies, insofar as any 

substantive discussion amongst two members of the 

agency can trigger the Act. 

15 Id. at 17, 19–22. In light of the absence of 

applicable caselaw, this recommendation does not 

address the lawfulness of email and other electronic 

exchanges amongst board or commission members 

under the Sunshine Act. 

16 Id. at 19–20. 

17 Recommendation 4 urges agencies to consider 

providing webcasts or audiocasts of open meetings. 

In so doing, they should ensure that they achieve 

full compliance with the Section 508 Amendment 

to the Rehabilitation Act of 1973, which requires 

that electronically furnished information promote 

access to persons with disabilities. 29 U.S.C. § 794d. 

For example, the Department of Homeland Security 

has developed a webcasting forum, the Homeland 

Security Information Network, that allows agencies 

to webcast meetings and provides simultaneous 

captioning so as to ensure access for persons with 

hearing impairments. Bull, supra note 7, at 33–34. 

Agencies should explore the use of new 

technologies to provide ready access to meeting 

materials for individuals who otherwise might be 

geographically constrained from participating in the 

agencies’ work. 

18 Recommendation 5 encourages agencies to post 

online any transcripts or meeting minutes prepared 

by or for the agencies. The Administrative 

Conference takes no position on whether agencies 

should reserve the right to post a transcript online 

whenever they contract with a private entity to 

prepare a transcript for an open meeting. In 

connection with Recommendation 6, the 

Conference notes that, consistent with the Freedom 

of Information Act and Government in the Sunshine 

Act, agencies need not disclose information 

protected by other statutes. 5 U.S.C. §§ 552(b)(3), 

552b(c)(3). 

activities of government sparked by the 

Vietnam War and Watergate, Congress passed 

and the President signed a series of 

transparency laws designed to promote 

greater accountability and transparency in 

government decisionmaking. The 

Government in the Sunshine Act, enacted in 

1976, focused specifically on the 

transparency of meetings of multi-member 

agencies.1 For any meeting involving a 

quorum of board or commission members, 

the agency must announce the event at least 

seven days in advance in the Federal Register 

and, with certain exceptions, permit 

attendance by interested members of the 

public.2

Notwithstanding its broad title, the 

Government in the Sunshine Act applies 

only to agencies that are headed by a group 

of board or commission members rather than 

an individual chairperson.3 In addition to the 

Act’s enumerated exceptions,4 there are 

many ways of conducting business that fall 

outside its ambit. Specifically, any 

discussion among a group of agency members 

smaller than a quorum does not trigger the 

Act.5 The Act also does not apply when 

members communicate with one another and 

reach a decision via the exchange of written 

documents, a procedure known as 

‘‘notational voting.’’ 6

The research conducted for the project 

shows that some boards and commissions 

dispose of a significant amount of business 

via means that are not subject to the 

Sunshine Act, relying especially heavily 

upon notational voting. For instance, of 32 

agencies surveyed in connection with that 

research, 14 (approximately 40%) reported 

that they disposed of more than 75% of 

matters using that procedure, though the 

frequency with which it is used varies 

significantly from agency to agency.7 As a 

consequence, many government transparency 

advocates have argued that some agencies 

undermine the spirit of the Sunshine Act by 

relying excessively on methods of conducting 

business that fall outside of its scope.8 Many 

agencies, in turn, contend that they could not 

operate efficiently were they required to 

reach all substantive decisions in full agency 

meetings, especially those conducted in 

public.9

The Administrative Conference has 

addressed the Sunshine Act on two 

occasions, issuing recommendations 

designed to address concerns relating to the 

Act’s negative effects on collegial interactions 

among board and commission members, on 

the one hand, and to agencies’ overreliance 

upon means of conducting business that fall 

outside the Act’s scope, on the other. In 1984, 

the Conference recommended that ‘‘agency 

members be permitted some opportunity to 

discuss the broad outlines of agency policies 

and priorities . . . in closed meetings, when 

the discussions are preliminary in nature or 

pertain to matters . . . which are to be 

considered in a public forum prior to final 

action.’’ 10 In 1995, a special committee 

convened by the Conference recommended 

that Congress establish a pilot program 

(lasting from five to seven years) that would 

allow members to meet privately so long as 

they provide a detailed summary of the 

meeting no later than five days after it has 

occurred.11 In exchange, pilot program 

participants would agree to refrain from 

using notational voting on ‘‘important 

substantive matters,’’ instead addressing 

those issues in open meetings, and would 

‘‘hold open public meetings, to the extent 

practicable, at regular intervals, at which it 

would be in order for members to address 

issues discussed in private sessions or items 

disposed of by notation.’’ 12 Due to the 

temporary closure of the Administrative 

Conference shortly after the special 

committee issued its report, this 

recommendation was never forwarded to the 

full Assembly for consideration in Plenary 

Session.13

In the surveys conducted for this project, 

although agency officials express many of the 

same frustrations with the operation of the 

Sunshine Act that they voiced in the prior 

Administrative Conference studies,14 they 

indicated that they generally are able to 

conduct business under the existing 

regime.15 Though governmental transparency 

advocates would prefer that agencies render 

more of their decisionmaking in open 

meetings, curtailing or eliminating the use of 

notational voting in all circumstances would 

prove disruptive to agencies’ ability to 

function effectively.16 At the same time, 

agencies can achieve greater transparency 

within the existing framework by apprising 

the public of their decisionmaking 

procedures and providing notice of business 

transacted outside of open meetings. In 

particular, agencies can exploit technological 

advances in order to disseminate information 

widely without incurring unreasonable 

costs.17 This recommendation highlights a 

number of best practices undertaken by 

agencies covered by the Act and encourages 

other agencies to consider these innovations 

and implement them as appropriate, while 

preserving agency discretion to tailor the 

proposals to fit the needs of their individual 

programs.18

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1Administrative Conference of the United States, 

Recommendation 92–2, Agency Policy Statements, 

57 Fed. Reg. 30101, 30103–04 (July 8, 1992). 

2See Kevin M. Stack, Guidance in the rulemaking 

process: evaluating preambles, regulatory text, and 

freestanding documents as vehicles for regulatory 

guidance at 2 (May 16, 2014) (Final Report to the 

Administrative Conference of the U.S.), available at 

http://www.acus.gov/sites/default/files/documents/

Guidance%20in%20the%20Rulemaking%20

Process%20Revised%20Draft%20Report%205_16_

14%20ks%20final.pdf [hereinafter Stack Report]. 

3 5 U.S.C. § 553(c) (2012). 

4See Stack Report, supra note 2. 

5The underlying study and this Recommendation 

address preambles to final rules, not preambles to 

other documents such as a notice of proposed 

rulemaking (NPRM). However, some of the 

recommendations herein may nonetheless have 

some application to preambles to NPRMs. 

6Administrative Conference of the United States, 

Recommendation 76–5, Interpretive Rules of 

General Applicability and Statements of General 

Policy, 41 Fed. Reg. 56767, 56769–70 (Dec. 30, 

1976). 

7Recommendation 92–2, supra note 1, at 30103– 

04. 

8Office of Management and Budget, Final 

Bulletin for Agency Good Guidance Practices, 72 

Fed. Reg. 3432, 3439 (Jan. 25, 2007), available at 

http://www.gpo.gov/fdsys/pkg/FR-2007-01-25/pdf/

E7-1066.pdf. 

Recommendation 

1. Each covered agency should develop 

and publicly release a succinct advisory 

document that discusses the mechanisms for 

attending and participating in open meetings 

and discloses the agency’s procedures for 

closing meetings and the Sunshine Act 

exceptions upon which the agency typically 

relies. It should also describe the types of 

business the agency typically conducts 

outside of open meetings (including business 

conducted via notational voting) and how the 

results are revealed to the public. Each such 

agency should post a copy of this document 

on its Web site and in other places at which 

it can be accessed by interested members of 

the public. 

2. For open meetings, covered agencies 

should post a meeting agenda on their Web 

sites as far in advance of the meeting as 

possible. Except for documents that may be 

exempt from disclosure under the Freedom 

of Information Act, agencies should also post 

in advance all documents to be considered 

during the meeting. When an agency cannot 

post non-exempt meeting documents in 

advance, it should do so not later than the 

start of the meeting or in a timely manner 

after the meeting has occurred. 

3. Covered agencies should create email 

listservs, RSS feeds, or other electronic 

distribution mechanisms so as to provide 

timely notification for interested stakeholders 

and members of the public and an 

opportunity to receive meeting notices and 

other announcements relevant to upcoming 

meetings subject to the Sunshine Act. 

4. Covered agencies should consider 

providing webcasts or audiocasts of open 

meetings. Such agencies should consider 

providing real-time streaming video of open 

meetings, if practicable, and in any event, 

should consider providing a webcast after the 

meeting has occurred that will be archived 

on the agency Web site for a reasonable 

period of time. 

5. For all open meetings for which meeting 

minutes or transcripts are prepared by or for 

the covered agencies in the ordinary course 

of business, such agencies should endeavor 

to post these documents online in a timely 

manner after the meeting. 

6. Except for information that may be 

exempt from disclosure under the Freedom 

of Information Act or the Government in the 

Sunshine Act, covered agencies should 

provide a summary description of business 

disposed of in closed meetings or via 

notational voting. The description should 

provide a brief summary of ultimate 

conclusions that the agency reached (e.g., the 

results of votes taken via notation procedure) 

but need not describe individual statements 

made during such meetings or other 

predecisional elements of the preceding 

discussions. 

Administrative Conference Recommendation 

2014–3 

Guidance in the Rulemaking Process 

Adopted June 6, 2014 

Over the past two decades, the use of 

guidance—nonbinding statements of 

interpretation, policy, and advice about 

implementation—by administrative agencies 

has prompted significant interest from 

Congress, executive branch officials, agency 

officials, and commentators. Most of this 

attention has been directed to ‘‘guidance 

documents,’’ freestanding, nonbinding 

statements of policy and interpretation 

issued by agencies. While such guidance is 

often helpful to the public and is normally 

to be encouraged, commentators and the 

Administrative Conference have expressed 

concern that agencies too often rely on 

guidance in ways that circumvent the noticeand-comment rulemaking process.1 The longstanding debate about guidance and its 

relationship to notice-and-comment 

rulemaking has, however, largely overlooked 

consideration of the function and varieties of 

contemporaneous guidance—that is, 

guidance that agencies provide about the 

meaning and purpose of their rules at the 

time those rules are issued.2

Contemporaneous guidance appears in 

three main forms. First, agencies provide 

guidance about the meaning and application 

of their rules in explanatory ‘‘statement[s] of 

their basis and purpose,’’ 3 statements that 

constitute the bulk of the ‘‘preambles’’ issued 

with final rules. Second, agencies sometimes 

provide guidance in the regulatory text itself, 

in the form of notes and examples, and more 

general guidance in appendices that appear 

in the Code of Federal Regulations (CFR). 

Third, when agencies promulgate their 

regulations, they sometimes also issue 

freestanding guidance documents. 

Contemporaneous guidance furthers the legal 

value of notice; it furnishes the public and 

regulated entities with the agency’s 

understanding of its regulations at the time 

of issuance, as opposed to later in time or in 

the context of an enforcement proceeding. 

The Administrative Conference 

commissioned a study of agencies’ current 

practices in providing contemporaneous 

guidance and the law applicable to this form 

of guidance.4 This Recommendation and the 

underlying report identify a set of best 

practices for agencies in providing guidance 

in preambles to final rules,5 as well as some 

problems in agencies’ current practices in 

providing contemporaneous guidance. The 

report also describes the law applicable to 

guidance provided in preambles to final 

rules, regulatory text, and separate guidance 

documents. 

This Recommendation builds upon two 

prior Conference recommendations with 

regard to the use of guidance by agencies. 

Administrative Conference Recommendation 

76–5, Interpretive Rules of General 

Applicability and Statements of General 

Policy,6 identified the benefits of providing 

notice and an opportunity to comment prior 

to the agency’s adoption of guidance 

(sometimes called ‘‘non-legislative’’ rules) for 

both an agency and potentially affected 

parties. In Recommendation 92–2, Agency 

Policy Statements, the Conference advised 

agencies to impose binding standards or 

obligations only through use of the legislative 

rulemaking procedures of the Administrative 

Procedure Act (APA), typically the noticeand-comment process, and reiterated the 

importance of allowing parties an 

opportunity to challenge the wisdom of the 

policy statement prior to its application.7 The 

Office of Management and Budget’s Final 

Bulletin for Agency Good Guidance Practices 

(OMB’s Good Guidance Bulletin),8 adopted in 

2007, reflects the concerns identified in these 

prior recommendations; the Bulletin obliges 

covered agencies to provide a means for 

public feedback on significant guidance 

documents and to undertake notice-andcomment procedures before issuing 

economically significant guidance, among 

other things. Neither of the Conference’s 

prior recommendations nor OMB’s Good 

Guidance Bulletin specifically addresses the 

guidance that agencies provide in preambles 

to final rules or in text that appears in the 

CFR. 

This Recommendation addresses a number 

of issues regarding agencies’ current practices 

by isolating ways in which agencies’ 

presentation and drafting of preambles can be 

improved so that guidance contained therein 

is more helpful and more accessible. First, 

some preambles do not include the issuing 

agency’s statement of the purposes of the 

rules adopted in light of the statute’s 

objectives. That absence reduces the 

usefulness of these statements in providing 

even the most basic guidance about the 

meaning and applicability of the rules. It also 

ignores the APA’s requirement that agencies 

accompany a final rule with a statement of 

the rule’s ‘‘basis and purpose.’’ Second, the 

length of preambles to many major rules 

makes locating preambular guidance 

difficult, particularly where a preamble is 

written as narrative discussion without clear 

structure. Third, in their preambles to final 

rules, many agencies incorporate or rely 

upon discussions of the basis and purpose of 

the rule provided in the notice of proposed 

rulemaking or other prior notices. This 

practice can save time and costs for agencies 

in preparing preambles, but it also requires 

affected parties to integrate two or more 

agency treatments of the rule’s basis and 

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9 See, e.g., http://www.consumerfinance.gov/

eregulations/1005 (visited April 15, 2014) 

(providing a copy of 12 CFR Part 1004 with 

hyperlinks to section-by-section analysis from 

regulatory preamble and other navigation tools and 

links). 

10 See OMB’s Good Guidance Bulletin, supra note 

8, at 3440 (directing agencies not to use mandatory 

language in guidance documents); Recommendation 

92–2, supra note 1, at 30103–04 (advising against 

making binding statements in policy statements). 

11 See Pub. L. No. 104–121, 110 Stat. 873, 

codified at 5 U.S.C. § 601 nt., § 212 (2012) (requiring 

the production of compliance guides whenever the 

agency must produce a regulatory flexibility 

analysis under 5 U.S.C. § 605(b), and quoting 

§ 605(b)). 

12 Id. § 212(a)(2(A). 

1 In the judicial context, ‘‘ex parte’’ contacts are 

those that are related to the subject of a lawsuit and 

occur between just one of the parties involved and 

the presiding judge, usually ‘‘without notice to or 

argument from the adverse party.’’ Black’s Law 

Dictionary (9th ed. 2009). Unless otherwise 

authorized by law, such contacts are generally 

viewed as highly unethical. 

2See 5 U.S.C. § 557(d). 

3Home Box Office, Inc. v. Federal Commc’ns 

Comm’n, 567 F.2d 9, 57 (D.C. Cir. 1977); see also 

Sierra Club v. Costle, 657 F.2d 298, 400–01 (D.C. 

Cir. 1981). 

4Recommendation 77–3 emerged from a select 

committee the Conference convened in response to 

the D.C. Circuit’s groundbreaking decision in Home 

Box Office. See Nathaniel L. Nathanson, Report to 

the Select Committee on Ex Parte Communications 

in Informal Rulemaking Proceedings, 30 Admin. L. 

Rev. 377, 377 (1978). Following the 

recommendation’s adoption, the Supreme Court 

decided Vermont Yankee Nuclear Power Corp. v. 

Natural Resources Defense Council, Inc., 435 U.S. 

519, 524 (1978), admonishing federal courts not to 

impose on administrative agencies procedural 

requirements beyond those contained in the APA. 

See Nathanson, 30 Admin L. Rev. at 406–08. 

purpose. Fourth, many agencies do not 

mention preambles on their Web pages and 

in other compilations of guidance, nor do 

they integrate the guidance content of 

preambles into their indices or topical 

treatments of guidance. This does not assist 

the public and regulated entities in 

integrating the guidance provided in 

preambles with other guidance documents. 

Fifth, displaying electronic versions of 

regulations with hyperlinks to relevant 

portions of their preambles and other 

guidance—a practice with which some 

agencies are experimenting 9—could make it 

easier to find this content, and holds promise 

for future innovation. 

A separate but equally important concern 

for preamble drafting is that some agencies 

include statements in preambles to final rules 

that appear to create binding standards or 

obligations as opposed to making those 

statements in the regulatory text. In this 

respect, this Recommendation highlights that 

the prohibition against agencies making 

statements in guidance documents in forms 

that appear to be binding also applies to 

statements in preambles.10

Many agencies have policies on issuing 

guidance documents, but these policies do 

not generally address preambles and other 

forms of contemporaneous guidance. The 

Conference encourages agencies to include 

contemporaneous guidance within these 

policies as a step toward better integrating 

these forms of guidance with other guidance 

materials. This Recommendation also 

highlights that for agencies covered by OMB’s 

Good Guidance Bulletin, the guidance 

content of their preambles should comply 

with the Bulletin. 

Finally, the Small Business Regulatory 

Enforcement Fairness Act of 1996 11 requires 

that when agencies produce small business 

compliance guides, those guides be posted on 

the agency Web site in an ‘‘easily identified 

location.’’ 12 Despite this requirement, these 

guides are often difficult to find on agency 

Web pages. The Recommendation highlights 

this statutory requirement and urges greater 

agency attention to it with the assistance of 

the Small Business Administration. 

Recommendation 

Drafting of Preambles to Final Rules 

1. In the statement of basis and purpose 

accompanying a final rule, agencies should 

address how the rule advances statutory 

objectives. Such discussion should go 

beyond merely repeating the text or title of 

the statute. 

2. Agencies should consider including, 

particularly for lengthy regulations, a sectionby-section analysis in the preamble in which 

the organization of the preambular 

discussion corresponds to the organization of 

the final rules themselves. Such section-bysection analyses should go beyond merely 

repeating the regulatory text discussed. 

3. When agencies incorporate or rely upon 

discussions of a rule’s basis and purpose 

from prior notices, such as from the notice 

of proposed rulemaking, they should be 

mindful that such incorporation and reliance 

may make it more burdensome for readers to 

find all relevant information. 

4. Agencies should not use the preamble as 

a substitute for regulatory language. Agencies 

should avoid use of mandatory language in 

the preambles to final rules, unless an agency 

is using these words to describe a statutory, 

regulatory, or constitutional requirement, or 

the language is addressed to agency staff and 

will not foreclose agency consideration of 

positions advanced by affected parties. Such 

language should be understood to include 

not only mandatory terms such as ‘‘shall,’’ 

‘‘must,’’ ‘‘required,’’ and ‘‘requirement,’’ 

mentioned in the OMB Final Bulletin for 

Agency Good Guidance Practices (OMB’s 

Good Guidance Bulletin), but also any other 

language that appears to impose substantive 

standards or obligations. 

Policies on Guidance and Collections of 

Guidance 

5. Agencies should mention preambles to 

their final rules as sources of guidance in 

their general compilations of guidance and 

on their webpages devoted to guidance. 

Agencies should also consider ways to 

integrate the guidance content of their 

preambles into their general compilations of 

guidance and on their webpages devoted to 

guidance. 

6. To the extent agencies have policies on 

issuing guidance, those policies should 

assess and clearly state how they address the 

guidance content of preambles to their final 

rules. For agencies covered by OMB’s Good 

Guidance Bulletin, their policies should 

address compliance with the Bulletin with 

respect to any significant and economically 

significant guidance included in preambles 

to final rules. 

Electronic Presentation of Regulations 

7. The Office of the Federal Register and 

the Government Printing Office are 

encouraged to work with agencies to develop 

ways to display the Code of Federal 

Regulations in electronic form in order to 

enhance its understanding and use by the 

public, such as developing reliable means of 

directing readers to relevant guidance in 

preambles to rules and to other relevant 

guidance documents. 

Small Entity Compliance Guides 

8. Agencies should reassess how they are 

displaying the small entity compliance 

guides on their websites to ensure that these 

guides are in an ‘‘easily identified location,’’ 

as required by Small Business Regulatory 

Enforcement Fairness Act of 1996. 

9. The Small Business Administration 

should work with agencies to develop 

guidelines for posting small entity 

compliance guides on agency websites in 

ways that make them easily identifiable. 

Administrative Conference Recommendation 

2014–4 

‘‘Ex Parte’’ Communications in Informal 

Rulemaking 

Adopted June 6, 2014 

Informal communications between agency 

personnel and individual members of the 

public have traditionally been an important 

and valuable aspect of informal rulemaking 

proceedings conducted under section 4 of the 

Administrative Procedure Act (APA), 5 

U.S.C. § 553. Borrowing terminology from the 

judicial context, these communications are 

often referred to as ‘‘ex parte’’ contacts.1

Although the APA prohibits ex parte contacts 

in formal adjudications and formal 

rulemakings conducted under the trial-like 

procedures of 5 U.S.C. §§ 556 and 557,2 5 

U.S.C. § 553 imposes no comparable 

restriction in the context of informal 

rulemaking. The term ‘‘ex parte’’ does not 

entirely fit in this non-adversarial context, 

and some agencies do not use it. This 

recommendation uses the term because it is 

commonly used and widely understood in 

connection with informal rulemaking. As 

used in this recommendation, ‘‘ex parte 

communications’’ means: (i) Written or oral 

communications; (ii) regarding the substance 

of an anticipated or ongoing rulemaking; (iii) 

between the agency personnel and interested 

persons; and (iv) that are not placed in the 

rulemaking docket at the time they occur. It 

bears emphasizing that such communications 

‘‘are completely appropriate so long as they 

do not frustrate judicial review or raise 

serious questions of fairness.’’ 3

In Recommendation 77–3,4 the Conference 

expressed the view that a general prohibition 

on ex parte communications in the context of 

informal rulemaking proceedings would be 

undesirable, as it would tend to undermine 

the flexible and non-adversarial procedural 

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5See Admin. Conf. of the United States, 

Recommendation 77–3, Ex Parte Communications 

in Informal Rulemaking Proceedings, 42 Fed. Reg. 

54,253 (Oct. 5, 1977). 

6 In such areas, interested persons may be willing 

to share essential information with the agency only 

through face-to-face, private conversations, and 

agency personnel may be subject to severe penalties 

for not keeping the information shared with them 

confidential. See, e.g., 26 U.S.C. § 6103 (addressing 

confidentiality and disclosure of tax returns and tax 

return information). Of course, agencies may protect 

information from disclosure only to the extent 

permitted or required by law. 

7Recognizing these principles, the Clinton 

Administration directed agencies ‘‘to review all 

. . . administrative ex parte rules and eliminate any 

that restrict communication prior to the publication 

of a proposed rule,’’ with the limited exception of 

‘‘rules requiring the simple disclosure of the time, 

place, purpose, and participants of meetings.’’ See 

Memorandum for Heads of Departments and 

Agencies, Regulatory Reinvention Initiative (Mar. 4, 

1995), available athttp://www.acus.gov/

memorandum/regulatory-reinvention-initiativememo-1995. This memorandum, which has never 

been revoked, continues to inform agency practice. 

8See id. 

9The Conference recently addressed agency 

comment policies. See Admin. Conf. of the United 

States, Recommendation 2011–2, Rulemaking 

Comments, 76 Fed. Reg. 48,791 (Aug. 9, 2011). 

10Sierra Club, 657 F.2d at 400 (quoting Sangamon 

Valley Television Corp. v. United States, 269 F.2d 

221 (D.C. Cir. 1959)). In such ‘‘quasi-adjudicatory’’ 

rulemakings, due process considerations may 

justify insulating the decisionmaker from ex parte 

contacts. See id. 

11See Admin. Conf. of the United States, 

Recommendation 88–9, Presidential Review of 

Agency Rulemaking, 54 Fed. Reg. 5207 (Feb. 2, 

1989); Admin. Conf. of the United States, 

Recommendation 80–6, Intragovernmental 

Communications in Informal Rulemaking 

Proceedings, 45 Fed. Reg. 86,407 (Dec. 31, 1980). 

12See 5 U.S.C. § 557(d). 

framework established by 5 U.S.C. § 553.5 At 

the same time, the Conference concluded, it 

may be appropriate for agencies to impose 

certain restraints on ex parte 

communications to prevent potential or 

perceived harm to the integrity of informal 

rulemaking proceedings. Although the law 

has evolved since Recommendation 77–3 was 

adopted, these basic principles remain valid. 

Over the past several decades, agencies have 

implemented Recommendation 77–3 by 

experimenting with procedures designed to 

capture the benefits of ex parte 

communications while reducing or 

eliminating their potential harm. This 

recommendation draws on this substantial 

experience to identify best practices for 

managing ex parte communications received 

in connection with informal rulemakings. 

Ex parte communications, which may be 

oral or written, convey a variety of benefits 

to both agencies and the public. Although the 

rulemaking process has largely transitioned 

to electronic platforms in recent years, most 

ex parte contacts continue to take the form 

of oral communications during face-to-face 

meetings. These meetings can facilitate a 

more candid and potentially interactive 

dialogue of key issues and may satisfy the 

natural desire of interested persons to feel 

heard. In addition, if an agency engages in 

rulemaking in an area that implicates 

sensitive information, ex parte 

communications may be an indispensable 

avenue for agencies to obtain the information 

necessary to develop sound, workable 

policies.6

On the other hand, ex parte 

communications can pose several different 

kinds of harm (both real and perceived) to 

the integrity of the rulemaking process. One 

difficulty is that certain people or groups 

may have, or be perceived to have, greater 

access to agency personnel than others. This 

unfairness, whether real or perceived, may be 

exacerbated if agency personnel do not have 

the time and resources to meet with everyone 

who requests a face-to-face meeting. Another 

concern is that agency decisionmakers may 

be influenced by information that is not in 

the public rulemaking docket. The mere 

possibility of non-public information 

affecting rulemaking creates problems of 

perception and undermines confidence in the 

rulemaking process. When it becomes reality, 

it creates different and more serious 

problems. Interested persons may be 

deprived of the opportunity to vet the 

information and reply to it effectively. And 

reviewing courts may be deprived of 

information that is necessary to fully and 

meaningfully evaluate the agency’s final 

action. 

Best practices for preventing the potential 

harms of ex parte communications may vary 

depending on the stage of the rulemaking 

process during which the communications 

occur. Before an agency issues a Notice of 

Proposed Rulemaking (NPRM), few if any 

restrictions on ex parte communications are 

desirable.7 Communications during this early 

stage of the process are less likely to pose the 

harms described above and can help an 

agency gather essential information, craft 

better regulatory proposals, and promote 

consensus building among interested 

persons.8 After an NPRM has been issued 

and during the comment period, there may 

be a heightened expectation that information 

submitted to the agency will be made 

available to the public. Indeed, during this 

time period, an agency’s comment policy and 

its policy addressing ex parte 

communications may both apply.9 Finally, 

once the comment period closes, the dangers 

associated with agency reliance on privatelysubmitted information become more acute. 

Interested persons may be particularly keen 

to discuss with the agency information 

provided in comments by other persons filed 

at or near the close of the comment period. 

Agencies have in some circumstances 

disclosed significant new information 

received through such communications and 

reopened the comment period. This solution 

is not costless, however, and has the 

potential to significantly delay a proceeding. 

This recommendation focuses on how 

agencies can best manage ex parte 

communications in the context of informal 

rulemaking proceedings, including those that 

involve ‘‘quasi-adjudication among 

‘conflicting private claims to valuable 

privilege.’ ’’ 10 It does not address several 

related or peripheral issues. First, it does not 

evaluate formal or hybrid rulemakings or 

proceedings in which agencies voluntarily 

use notice-and-comment procedures to 

develop guidance documents. Second, it does 

not address ex parte communications in the 

executive review process, including before 

the Office of Information and Regulatory 

Affairs (OIRA).11 Third, it does not examine 

interagency communications outside the 

process of executive review. Fourth, it does 

not address intraagency interactions between 

an agency’s staff and its decisionmakers.12

Finally, it does not address unique issues 

that may arise in connection with 

communications between agencies and 

members of Congress, foreign governments, 

or state and local governments. 

Recommendation 

‘‘Ex Parte’’ Policies 

1. Each agency that conducts informal 

rulemaking under 5 U.S.C. § 553 should have 

a written policy explaining how the agency 

handles what this recommendation refers to 

as nongovernmental ‘‘ex parte’’ 

communications, even if the agency does not 

use that term. 

2. Agency ex parte policies should: 

(a) Provide guidance to agency personnel 

on how to respond to requests for private 

meetings to discuss issues related to a 

rulemaking. 

(b) Explain the scope of their coverage, 

which should be limited to communications 

on substantive matters and should exclude 

non-substantive inquiries, such as those 

regarding the status of a rulemaking or the 

agency’s procedures. 

(c) Establish procedures for ensuring that, 

after an NPRM has been issued, the 

occurrence and content of all substantive oral 

communications, whether planned or 

unplanned, are included in the appropriate 

rulemaking docket. 

(d) Establish procedures for ensuring that, 

after an NPRM has been issued, all 

substantive written communications are 

included in the appropriate rulemaking 

docket. 

(e) Explain how the agency will treat 

significant new information submitted to the 

agency after the comment period has closed. 

(f) Identify deadlines for all required or 

requested disclosures of ex parte 

communications. 

(g) Explain how the agency will treat 

sensitive information submitted in an ex 

parte communication. 

(h) Explain how the agency’s ex parte 

communications policy interacts with its 

comment policy. 

3. In formulating policies governing ex 

parte communications in informal 

rulemaking proceedings, agencies should 

consider the following factors: 

(a) The stage of the rulemaking proceeding 

during which oral or written 

communications may be received. 

(b) The need to ensure that access to 

agency personnel is provided in a balanced, 

viewpoint-neutral manner. 

(c) Limitations on agency resources, 

including staff time, that may affect the 

ability of agency personnel to accept requests 

for face-to-face meetings or prepare 

summaries of such meetings. 

(d) The likelihood that protected 

information will be submitted to the agency 

through oral or written ex parte 

communications. 

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Federal Register / Vol. 79, No. 122 / Wednesday, June 25, 2014 / Notices 35995 

(e) The possibility that, even if an agency 

discourages ex parte communications during 

specified stages of the rulemaking process, 

such communications may nonetheless 

occur. 

(f) The potential need to give agency 

personnel guidance about whether or to what 

extent to provide information to persons not 

employed by the agency during a face-to-face 

meeting. 

Communications Before an NPRM Is Issued 

4. Agencies should not impose restrictions 

on ex parte communications before an NPRM 

is issued. 

5. Agencies may, however, disclose, in 

accordance with ¶ 8 of this recommendation, 

the occurrence or content of ex parte 

communications received before an NPRM is 

issued, as follows: 

(a) In the preamble of the later-issued 

NPRM or other rulemaking document; or 

(b) In the appropriate rulemaking docket 

once it is opened. 

Communications After an NPRM Has Been 

Issued 

6. If an agency cannot accommodate all 

requests for in-person meetings after an 

NPRM has been issued, it should consider 

holding a public meeting (which may be 

informal) in lieu of or in addition to 

individual, private meetings. 

7. After an NPRM has been issued, 

agencies should disclose to the public: 

(a) The occurrence of all oral ex parte 

communications, including the identity of 

those involved in the discussion and the date 

and location of the meeting. 

(b) The content of all oral ex parte 

communications through a written summary 

filed in the appropriate rulemaking docket. 

Agencies may either: 

(i) Direct their own personnel to prepare 

and submit the necessary summary; or 

(ii) Request or require private persons to 

prepare and submit the necessary summary 

of meetings in which they have participated, 

although it remains the agency’s 

responsibility to ensure adequate disclosure. 

(c) All written submissions, in the 

appropriate rulemaking docket. 

Additional Considerations after the 

Comment Period Has Closed 

8. 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. 

9. If an agency receives, through an ex 

parte communication, any significant new 

information that its decisionmakers choose to 

consider or rely upon, it should disclose the 

information and consider reopening the 

comment period, to provide the public with 

an opportunity to respond. 

10. When an agency receives a large 

number of requests for ex parte meetings after 

the comment period has closed, it should 

consider using a reply comment period or 

offering other opportunities for receiving 

public input on submitted comments. See 

Admin. Conf. of the United States, 

Recommendation 2011–2, Rulemaking 

Comments ¶ 6, 76 Fed. Reg. 48,791 (Aug. 9, 

2011) (encouraging the use of reply comment 

periods and other methods of receiving 

public input on previously submitted 

comments). 

Quasi-Adjudicatory Rulemakings 

11. If an agency conducts ‘‘quasiadjudicatory’’ rulemakings that involve 

conflicting private claims to a valuable 

privilege, its ex parte communications policy 

should clearly and distinctly articulate the 

principles and procedures applicable in 

those rulemakings. 

12. Agencies should explain whether, how, 

and why they are prohibiting or restricting ex 

parte communications in quasi-adjudicatory 

rulemakings. Agencies may conclude that ex 

parte communications in this context require 

a different approach from the one otherwise 

recommended here. 

13. Agencies should explain and provide a 

rationale for any additional procedures 

applicable to ex parte communications 

received in quasi-adjudicatory rulemakings. 

Accommodating Digital Technology 

14. Agencies should consider how digital 

technology may aid the management or 

disclosure of ex parte communications. For 

example, agencies may be able to use 

technological tools such as video 

teleconferencing as a cost effective way to 

engage with interested persons. 

15. Agencies should avoid using language 

that will inadvertently exclude ex parte 

communications made via digital or other 

new technologies from their policies. 

16. Agencies should state clearly whether 

they consider social media communications 

to be ex parte communications and how they 

plan to treat such communications. Agencies 

should ensure consistency between policies 

governing ex parte communications and the 

use of social media. 

[FR Doc. 2014–14878 Filed 6–24–14; 8:45 am] 

BILLING CODE 6110–01–P 

UNITED STATES AGENCY FOR 

INTERNATIONAL DEVELOPMENT 

Notice of July 9 Advisory Committee 

on Voluntary Foreign Aid Meeting 

AGENCY: United States Agency for 

International Development. 

ACTION: Notice of meeting. 

SUMMARY: Pursuant to the Federal 

Advisory Committee Act, notice is 

hereby given of a meeting of the 

Advisory Committee on Voluntary 

Foreign Aid (ACVFA). 

Date: Wednesday, July 9, 2014. 

Time: 2:00 p.m.–4:00 p.m. 

Location: Horizon Room, Ronald 

Reagan Building. 

Purpose 

The Advisory Committee on 

Voluntary Foreign Aid (ACVFA) brings 

together USAID and private voluntary 

organizations (PVO) officials, 

representatives from universities, 

international nongovernment 

organizations (NGOs), U.S. businesses, 

and government, multilateral, and 

private organizations to foster 

understanding, communication, and 

cooperation in the area of foreign aid. 

Agenda 

USAID Administrator Rajiv Shah will 

make opening remarks, followed by 

panel discussions among ACVFA 

members and USAID leadership on the 

Global Development Lab. The full 

meeting agenda will be forthcoming on 

the ACVFA Web site at http:// 

www.usaid.gov/who-we-are/ 

organization/advisory-committee. 

Stakeholders 

The meeting is free and open to the 

public. Persons wishing to attend 

should register online at http://ow.ly/ 

wlC6G. 

FOR FURTHER INFORMATION CONTACT: 

Jayne Thomisee, 202–712–5506. 

Dated: June 18, 2014. 

Jayne Thomisee, 

Executive Director & Policy Advisor, U.S. 

Agency for International Development. 

[FR Doc. 2014–14836 Filed 6–24–14; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF AGRICULTURE 

Submission for OMB Review; 

Comment Request 

June 19, 2014. 

The Department of Agriculture has 

submitted the following information 

collection requirement(s) to OMB for 

review and clearance under the 

Paperwork Reduction Act of 1995, 

Public Law 104–13. Comments 

regarding (a) whether the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(b) the accuracy of the agency’s estimate 

of burden including the validity of the 

methodology and assumptions used; (c) 

ways to enhance the quality, utility and 

clarity of the information to be 

collected; (d) ways to minimize the 

burden of the collection of information 

on those who are to respond, including 

through the use of appropriate 

automated, electronic, mechanical, or 

other technological collection 

techniques and other forms of 

information technology. 

Comments regarding this information 

collection received by July 25, 2014 will 

be considered. Written comments 

should be addressed to: Desk Officer for 

Agriculture, Office of Information and 

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