Chapter 2. Rulemaking/Nonrulemaking Airspace Cases
Section 1. Ex Parte Communications
2-1-1. DEFINITION
An ex parte contact is any communication 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 rise to the
appearance of impropriety.
NOTE-
Written comments submitted to the docket are not
considered ex parte contacts because they are available
for inspection by all members of the public.
2-1-2. SCOPE
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.
2-1-3. POLICY
The FAA encourages full public participation in
rulemaking 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. Contacts
with the public to obtain up-to-date information
needed for the rulemaking action or to clarify written
comments, are also permissible.
2-1-4. DISCLOSURE
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.
2-1-5. PERMITTED CONTACT
The kind of ex parte contacts permitted and the
procedures to be followed depend on when the
contact occurs. Any questions regarding the
following authorized contacts should be addressed by
the Office of the Chief Counsel.
a. 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 shall be included in a report
discussing each contact or group of related contacts.
This report shall be placed in the project's
docket/case file.
b. 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.
c. 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.
d. 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.
e. 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.
f. 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.
g. 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.
2-1-6. RECORDING CONTACTS
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:
a. The date and time of the meeting or
conversation.
b. A list of the participants.
c. A summary of the discussion (more than a
simple list of the subjects discussed).
d. 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.
2-1-7. ADVICE FROM 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.
2-1-8. RELEASE OF RULEMAKING
AND/OR NONRULEMAKING TEXTS
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.
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