Section 1. Ex Parte Communications
Ex parte communication is any contact between the FAA and a party outside the government related to a specific rulemaking proceeding, before that particular proceeding is finalized. A rulemaking proceeding does not close until all received comments have been addressed, and a final rule is published. “Ex parte" is a Latin term that is interpreted to mean “one sided," and indicates that not all parties to an issue were present when it was discussed. Because some interested persons, including the general public, are excluded from an ex parte communication, such a contact may give, or appear to give, an unfair advantage to one party.
Written comments submitted to the docket are not considered ex parte contacts because they are available for inspection by all members of the public.
Whether ex parte contacts are initiated by the FAA or by a member of the public (including affected industry), they are improper if they affect the basic openness and fairness of the decision making process. Because of this possibility and because of the possible appearance of impropriety, the FAA's policy on ex parte contacts is very strict. This policy, however, does not significantly restrict the gathering of information needed to make an intelligent decision.
The FAA encourages full public participation in rulemaking and nonrulemaking actions. This policy allows for appropriate ex parte contacts when necessary to ensure adequate public comment. Persons directly responsible for the rulemaking/nonrulemaking action should, in addition to providing the public the opportunity to respond in writing to proposed actions and/or to appear and be heard at a hearing, undertake such contacts with the public as will be helpful in resolving questions of substance and justification. Responsible persons should be receptive to proper contacts from members of the public who are affected by, or interested in, the proposed action. Contact with the public to obtain current information needed for rulemaking/nonrulemaking actions or to clarify written comments is permissible.
While this policy recognizes the importance of ex parte contacts, it also contains a strict mandate to disclose these contacts. Specifically, the FAA has an obligation to conduct its rulemaking activities in a public manner, whereby interested members of the public are afforded adequate knowledge of such contacts. This is necessary to ensure all interested members of the public are afforded the opportunity to make their views known to the FAA. Without such disclosure, other interested members of the public and the FAA may be deprived of informed and valuable comments.
The kind of ex parte contacts permitted and the procedures to be followed depend on when the contact occurs. Under some circumstances, an ex parte contact could affect the basic openness and fairness of the rulemaking process. Even the appearance of impropriety can affect public confidence in the process. Any questions regarding the following authorized contacts should be addressed by the Office of the Chief Counsel.
- Before the issuance of any rulemaking and/or nonrulemaking action, ex parte contacts are authorized when needed to obtain technical and economic information. Each contact that influenced the specific effort must be included in a report discussing each contact or group of related contacts. This report must be placed in the project's docket/case file.
- During the comment period, ex parte contacts are strongly discouraged, since requests for information can be submitted in writing or at a public meeting. The only information that should be released is that contained in the proposed rule and any other information made generally available during a public meeting. Information, such as facts not presented in the rulemaking/nonrulemaking notification or at a public meeting, or the agency's preliminary thinking on the final rule, should not be discussed. Persons who contact the agency by telephone or in person seeking to discuss the proposal should be advised that the proper avenue of communication during the comment period is by written comment submitted to the docket. When the agency determines that it would be helpful to meet with a person or group during the comment period, the meeting must be announced in the Federal Register and all interested persons must be invited.
- In a formal public hearing, the testimony is usually recorded and the transcript added to the docket. Summaries of all substantive oral communications and copies of materials provided that could affect the agency position must be placed in the docket. Individuals who have made oral comments at meetings should be encouraged to also submit those comments to the docket in writing.
- Persons who contact the agency simply to obtain information regarding the proposal may be provided with information that has already been made available to the general public. No record of such a contact is required.
- Once the comment period has closed, subsequently received written communications should also be placed in the docket. Inform those who wish to submit such “late filed" comments (in accordance with Part 11), their comments will be given consideration to the extent that they cause no undue expense or delay.
- If the agency determines that it would be helpful to meet with a person or group after the close of the comment period, the meeting must be announced in the Federal Register. Moreover, consideration should be given to reopening the comment period. Substantive oral communications other than formal meetings are discouraged. If it is discovered that such a contact has occurred, a summary of the contact must be placed in the docket if it could be perceived as influencing the rulemaking process. Such a summary must be accompanied by copies of any material distributed during meetings between the FAA and interested parties.
- Contacts after the close of the comment period should be avoided. However, if an ex parte communication occurs that could substantially influence the rulemaking after the comment period has closed, it is the FAA's policy to consider reopening the comment period. Important information should not be disregarded simply because it was late. However, because contacts after the close of the comment period may result in reopening the comment period, they should be avoided. Written comments received after the closing date do not require reopening the comment period unless the agency is substantially and specifically influenced by the comment.
A record of a contact or series of contacts need only be made when it is determined that the contact influenced the agency's action. The record of a contact or series of contacts may be made at any time after the contact, but must be made before issuance of the final action. The record of ex parte contacts need not be a verbatim transcript of the communication. However, a mere recitation that on a stated day a meeting or telephone conversation was held with listed persons to discuss a named general subject is inadequate. The report of the meeting or contact should contain at a minimum:
- The date and time of the meeting or conversation.
- A list of the participants.
- A summary of the discussion (more than a simple list of the subjects discussed).
- A specific statement of any commitments made by any FAA personnel. A copy of any documents discussed should be attached to the record. Any questions on the preparation of the record should be directed to the Office of the Chief Counsel.
Questions concerning the propriety of ex parte contacts, or the actions to be taken after such contacts, should be directed to the Office of the Chief Counsel. Ex parte contacts must be handled correctly to prevent unwarranted delay and legal challenge.
The agency policy is to not provide outside parties the texts of rulemaking/nonrulemaking documents before official release. Such disclosures may give the appearance that the agency is seeking outside party approval and may give an advantage to some parties over other members of the public. There is one exception to this policy. It may be necessary to discuss possible specific regulatory provisions under consideration to obtain information on technical, operational, and economic impacts needed for agency deliberations. Avoid discussion of specific language unless needed information cannot be obtained without discussion of the precise technical language to be used. When necessary, limit discussion and disclosure to the minimum amount of rule text necessary to accomplish the task. Preamble text is not to be distributed before publication.
For additional information on ex parte communications, see the following:
- DOT Order 2100.2, Policies for Public Contacts in Rulemaking.
- Appendix 1 to Title 14 CFR Part 11, Oral Communications with the Public During Rulemaking.