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1 [1] (March 30, 2023)

handle is hein.crs/govelch0001 and id is 1 raw text is: Congressional Research Service Informing the Iegitive diebate since 1914 0 March 30, 2023 Communications Between Congress and Federal Agencies During the Rulemaking Process Congress often delegates legislative authority to federal agencies in statute. Using that authority, agencies issue regulations to implement legislative objectives and programs. Regulations carry the force and effect of law and are often where the details of federal programs and requirements are established. Thus, regulations can have substantial implications for policy implementation. In light of the legal and policy importance of federal regulations, congressional committees and individual Members often monitor how an agency implements delegated authority. For example, during the course of an agency rulemaking, Congress may seek information about the status or content of a particular proposed rule. Agencies, however, are sometimes unwilling to share that information. Two justifications are often given for this reluctance: a desire to avoid written or oral off-the-record communications, which are sometimes referred to as ex parte communications, and a desire to protect the confidentiality of internal communications that reflect agency deliberations. This In Focus discusses the legal principles and practical hurdles that sometimes inhibit the flow of information from federal agencies to Congress during the rulemaking process. It does not address formal oversight mechanisms Congress has for requesting or requiring information from federal agencies, such as Congress's subpoena power. Con gressionaD Communications During the Rulemaking Process The Supreme Court held in INS v. Chadha, 462 U.S. 919 (1983), that once Congress delegates authority to an agency, that authority may not be altered or revoked except through a subsequent legislative enactment. However, in its delegations of authority, Congress often gives agencies significant discretion to choose from a range of policy options. Over the course of an agency's rulemaking process, therefore, opportunities may exist for Congress and the public to steer the agency in a particular direction. In seeking to exert influence over agency rulemaking proceedings, Congress has substantial tools at its disposal. Oversight is one such tool, and it can include not only formal hearings and investigations but also informal communications between the agency and lawmakers. Federal laws including the Administrative Procedure Act (APA) do not prohibit Members or congressional staff from attempting to influence ongoing agency rulemakings by communicating their views and preferences directly to the agency. Courts have said that such action is both expected as part of the Member's representational duties and generally viewed as entirely proper. Sierra Club v. Costle, 657 F.2d 298, 409 (D.C. Cir. 1981). This is true even with respect to ex parte communications made during the rulemaking process. The APA generally prohibits ex parte communications with anyone outside the agency, including Members of Congress, in formal agency rulemakings and adjudications. However, there is no such prohibition on ex parte communications during traditional notice-and-comment (also known as informal) rulemaking, the method most often used to promulgate federal regulations. Although legally permitted, there are reasons why an agency may be reluctant to engage in ex parte communications during notice-and-comment rulemaking, including with Members of Congress. First, if a rule was developed (or was perceived to have been developed) outside of the rulemaking process, the public's confidence in the rule and the rulemaking process could be compromised. Second, under modern administrative practice, an agency generally builds a rulemaking record, which contains public comments, scientific studies, notices, and other materials the agency relied on to make its decision. Among other potential benefits, this record assists courts with judicial review of agency rules. In light of the current practices involving rulemaking records, agencies may be particularly hesitant to engage in off-the-record communications-lest a reviewing court decide that the agency's decision was wholly or in part reliant on information it did not include in the record. If a court were to make such a finding, it could vacate the rule. In an attempt to balance the potential benefits from additional input against these concerns, agencies may have formal or informal policies governing their ex parte communications. For example, some agencies require summaries of any ex parte communications, including those received from Congress, and require these summaries to be placed into the public rulemaking records associated with the agency rules. Improper Influence While Members are generally free to voice their views on a rule directly to the agency, there may be rare instances in which a Member's attempts to influence an agency rulemaking could create legal concerns. Courts have suggested that an agency rule could be jeopardized if a Member attempts to impose extraneous or improper pressure upon an agency and if it can be proved that the agency's rulemaking was in fact affected by that pressure. See, e.g., D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1237 (D.C. Cir. 1972).

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