```

[Federal Register Volume 79, Number 122 (Wednesday, June 25, 2014)]
[Notices]
[Pages 35988-35995]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14878]

========================================================================
Notices
                                                Federal Register
________________________________________________________________________

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.

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

[[Page 35988]]

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

Adoption of Recommendations

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

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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

[[Page 35989]]

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 non-compliant 
agency FOIA determinations are not taken to court by requesters, 
primarily for reasons of cost and delay that inhere in federal court 
litigation.
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    \1\ 5 U.S.C. Sec.  552, as amended.
    \2\ Openness Promotes Effectiveness in our National [OPEN] 
Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524 
(codified at 5 U.S.C. Sec.  552), Sec.  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).
    \3\ The 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.
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    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\
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    \4\ See ACUS Statement 12, 52 Fed. Reg. 23,636 (June 
24, 1987).
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    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.
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    \5\ OPEN Government Act of 2007, supra note 2, 5 U.S.C. Sec.  
552(a)(6)(B)(ii).
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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.
---------------------------------------------------------------------------

    \6\ However, the legislation (OPEN Government Act of 2007, supra 
note 2) does not use the term ``FOIA ombudsman.''
---------------------------------------------------------------------------

    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

[[Page 35990]]

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\
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    \7\ 5 U.S.C. Sec.  552(h)(3).
    \8\ Although 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.''
    \9\ OGIS has described its advisory opinion authority as 
follows: ``OGIS also is authorized to 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.
    \10\ See 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)).
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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\
---------------------------------------------------------------------------

    \11\ OGIS 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.
    \12\ OGIS 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-for-Agencies.htm. OIP also has 
encouraged agencies to follow this practice. Available at http://www.justice.gov/oip/foiapost/2010foiapost21.htm.
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    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 
non-exclusive 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

[[Page 35991]]

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\
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    \1\ Pub. L. No. 94-409, 90 Stat. 1241 (1976) (5 U.S.C. Sec.  
552b (2006)).
    \2\ 5 U.S.C. Sec.  552b.
---------------------------------------------------------------------------

    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\
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    \3\ There 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. Sec.  552b(c).
    \5\ See id. Sec.  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).
    \6\ Commc'ns Sys., Inc. v. Fed. Commc'ns Comm'n, 595 F.2d 797, 
798-99, 801 (D.C. Cir. 1978).
---------------------------------------------------------------------------

    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\
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    \7\ Reeve 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-Sunshine-Act-report.
    \8\ Id. at 25.
    \9\ Id. at 19-20.
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    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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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    \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. Sec.  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. Sec. Sec.  552(b)(3), 
552b(c)(3).

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[[Page 35992]]

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 notice-and-comment rulemaking process.\1\ The 
long-standing 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\
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    \1\ Administrative Conference of the United States, 
Recommendation 92-2, Agency Policy Statements, 57 Fed. Reg. 30101, 
30103-04 (July 8, 1992).
    \2\ See 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%20Process%20Revised%20Draft%20Report%205_16_14%20ks%20final.pdf [hereinafter Stack Report].
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    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.
---------------------------------------------------------------------------

    \3\ 5 U.S.C. Sec.  553(c) (2012).
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    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.
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    \4\ See Stack Report, supra note 2.
    \5\ The 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.
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    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 
notice-and-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-
and-comment 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.
---------------------------------------------------------------------------

    \6\ Administrative 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).
    \7\ Recommendation 92-2, supra note 1, at 30103-04.
    \8\ Office 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.
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    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

[[Page 35993]]

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.
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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).
---------------------------------------------------------------------------

    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\
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    \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).
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    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.
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    \11\ See Pub. L. No. 104-121, 110 Stat. 873, codified at 5 
U.S.C. Sec.  601 nt., Sec.  212 (2012) (requiring the production of 
compliance guides whenever the agency must produce a regulatory 
flexibility analysis under 5 U.S.C. Sec.  605(b), and quoting Sec.  
605(b)).
    \12\ Id. Sec.  212(a)(2(A).
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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 section-by-section analysis in the preamble in which 
the organization of the preambular discussion corresponds to the 
organization of the final rules themselves. Such section-by-section 
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. Sec.  
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. Sec. Sec.  556 and 557,\2\ 5 U.S.C. Sec.  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\
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    \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.
    \2\ See 5 U.S.C. Sec.  557(d).
    \3\ Home 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).
---------------------------------------------------------------------------

    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

[[Page 35994]]

framework established by 5 U.S.C. Sec.  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.
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    \4\ Recommendation 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.
    \5\ See Admin. Conf. of the United States, Recommendation 77-3, 
Ex Parte Communications in Informal Rulemaking Proceedings, 42 Fed. 
Reg. 54,253 (Oct. 5, 1977).
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    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\
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    \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. Sec.  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.
---------------------------------------------------------------------------

    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 privately-
submitted 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.
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    \7\ Recognizing 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-initiative-memo-1995. This memorandum, which has never 
been revoked, continues to inform agency practice.
    \8\ See id.
    \9\ The 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).
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    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.
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    \10\ Sierra 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.
    \11\ See 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).
    \12\ See 5 U.S.C. Sec.  557(d).
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Recommendation

``Ex Parte'' Policies

    1. Each agency that conducts informal rulemaking under 5 U.S.C. 
Sec.  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.

[[Page 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 ``quasi-adjudicatory'' 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
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