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Ruckelshaus Takes Steps to Improve Flow of Agency Information [Fishbowl Policy]
William D. Ruckelshaus, Administrator of the U.S. Environmental Protection Agency, today set forth a number of operating principles to carry out his pledge that EPA will operate "in a fishbowl."
In addition, his legal staff has established a recusal system to assure his avoiding conflicts of interest and the appearance of conflicts of interest in the performance of his duties. Agency matters in which he excuses (recuses) himself from taking part will be made available to the public.
In a memorandum to all employees, the Administrator said, "When I recently appeared before the Senate Committee on Environment and Public Works, I promised that EPA would operate 'in a fishbowl.' I said, 'We will attempt to communicate with everyone from the environmentalists to those we regulate and we will do so as openly as possible.'"
Ruckelshaus said he thought it was critical to set out for the guidance of all EPA employees a set of basic principles to guide their communications with the public.
Ruckelshaus' letter covers four areas: general principles, appointment calendars, litigation and formal adjudication, and rulemaking proceedings. They call for:
EPA will provide, in all its programs, for the fullest possible public participation in decision-making. This requires not only that EPA employees remain open and accessible to those representing all points of view, but also that EPA employees responsible for decisions take affirmative steps in an open manner to seek out the views of those who will be affected by the decisions. EPA will not accord privileged status to any special interest group, nor will it accept any recommendation without careful critical examination.
He added that the guidelines would be disseminated to the public for its comments. "While this is not a formal solicitation of views, we will have a 30-day waiting period in which to receive the opinions of the public. We want to get feedback from the public because of the high and continuing degree of interest in how the agency deals with the regulated community and other affected parties."
Ruckelshaus pointed out that the principles are general in nature "because you can't cover every eventuality." But he said that even while awaiting public comment which could lead to modifications, these guidelines will be in effect as agency policy.
"In order to make the public fully aware of any contacts with interested persons," Ruckelshaus wrote, "I have directed that a copy of my appointment calendar for each week be placed in the Office of Public Affairs and made available to the public at the end of the week." He added that all other key EPA officials will make their appointment calendars available in a similar manner.
Litigation and formal adjudication
All communication with parties in litigation must be through the attorneys assigned to the case. Program personnel who receive inquiries from parties in matters under litigation should immediately notify the assigned attorney, and should refer the caller to that attorney. Formal adjudications, such as pesticide cancellation proceedings, are governed by specific requirements to which Ruckelshaus said he would adhere and which he expected all EPA employees to meet. All adjudicatory rules governing ex parte (the interest of one party only) communications will be made available to all EPA employees and to the assure a policy of openness and candor.
EPA employees must ensure that the basis for the agency's decisions appear in the record. Ruckelshaus instructed employees to be certain that all written comments received from persons outside the agency be entered in the rulemaking docket, and that a memorandum summarizing any significant new factual information likely to affect the final decision received during a meeting or other conversations be placed in the rulemaking docket.
"You are encourages to reach out as broadly as possible for views to assist you in arriving at final rules," Ruckelshaus said. "However, you should do so in a manner that ensures, as far as practicable, that final decisions are not taken on the basis of information which has not been disclosed to members of the public in a timely manner."
To avoid conflicts of interest or the appearance of them, a system has been established in which agency officials will use a recusal form to warn the Administrator of issues from which he should excuse himself.
Ruckelhaus has provided a list of companies in which he is in the process of divesting his financial interests as well as a list of various public institutions with which he has been associated as guidance in determining areas where conflicts of interest could exist. (List attached.)
Gerald H. Yamada, Deputy General Counsel and the agency's chief ethics officer, said that the Administrator must, in instances where he still has a financial involvement, excuse himself. These instances are mandatory recusals covered by statute, Yamada said.
There also are discretionary recusals in which the Administrator will recuse himself because of the appearance of an impropriety or conflict of interest. Ruckelshaus' associations with public institutions, such as the Bo-Energy Council as an example, would fall into this discretionary category, Yamada said.
Some issues will be decided on a case-by-case basis. Once program officials have provided advice in discretionary matters, a final decision will be made by the Administrator, with the advice of Yamada. In a memorandum on the subject, it was note that specific procedures must be followed to identify and track matters involving rulemaking, correspondence, litigation and enforcement, formal adjudication, policy statements, grants and contracts.
The memo on recusal to agency officials states, "When Mr. Ruckelshaus has recused himself from participating in any particular matter, your office is not the send him any written material or give him any briefings on such matters. His recusals will be made available to the public."
Yamada said the recusal system, however, does not mean that the Administrator will not be kept informed of everything that is going on at the agency. "He has to be made aware of what is happening, even if he can't participate in some of these matters," Yamada pointed out.
In developing the guidance principles he announced today, Ruckelshaus has his staff meet with staff members of the Administrative Conference of the United States, an independent agency that develops improvements to legal procedures used by federal agencies in administering their programs. The principles are based on recommendations made by this group and EPA's Office of General Counsel.
Attachment A lists those firms in which Mr. Ruckelshaus has a financial interest and is in the process of divesting himself of his financial involvement.
Attachment B is a list of public institutions with which Mr. Ruckelshaus has been associated. There may be instances involving some of these groups in which Mr. Ruckelshaus may decide to recuse himself because of the appearance of a conflict of interest.
Until Mr. Ruckelshaus finishes divesting himself of his financial interest in the firms listed on Attachment A, he is prohibited by statute from participating in any particular matter that would involve any of the firms. Once his divestiture is completed, the firms on Attachment A will be moved to the Attachment B list.
Weyerhaeuser Company (pulp and paper manufacturing, logging, wood and plywood products)
Cummins Engine Company, Inc. (diesel engine manufacturing)
Peabody International Corp. (manufacture of solid and hazardous waste cleanup equipment, manufacture of wet and dry scrubbers and electrostatic precipitators)
Nordstrom, Inc. (wearing apparel, shoes)
Pacific Gas Transmission Company (gas transmission)
U.S. West (telephone services holding company)
United Siscoe Mine, Ltd. ((on-shore oil and gas extraction, gold mining)
Geothermal Kinetics, Inc. (a subsidiary of United Siscoe Mines)
SeaFirst Corp. (variety of financial services--mortgage lending, leasing, computers, insurance)
Seattle First National Bank (banking services--a subsidiary of SeaFirst Corp.)
Lincoln National Corp. (insurance services--life, health, property, pension)
AFS International/Intercultural Programs
American Enterprise Institute for Public Policy Research
American Paper Institute
American Refugee Committee
Council for Public Interest Law
Council on Foreign Relations, Inc.
Council on Solar Bio Fuels
Economic Development Council of Puget Sound
Environmental & Energy Study Institute
Environmental Law Institute
Handgun Control, Inc.
Harvard/Monsanto Advisory Board
National Business Council for ERA
National Research Council
National Victims of Crime
Pacific Science Center
Public Agenda Foundation
Resolve (Center for Environmental Conflict Resolution)
Seattle Art Museum
Seattle Chamber of Commerce
Twentieth Century Fund
University of Puget Sound
University of Washington
U.S. Business Commission on the Reconstruction of Lebanon
Weyerhaeuser Company Archives
Weyerhaeuser Company Foundation
SUBJECT: Contacts with Persons Outside the Agency
TO: All EPA Employees
When I recently appeared before the Senate Committee on Environment and Public Works, I promised that EPA would operate "in a fishbowl." I said, "We will attempt to communicate with everyone from the environmentalists to those we regulate and we will do so as openly as possible. " Therefore, I believe it is important to set out for the guidance of all EPA employees a set of basic principles to guide our communications with the public.
In formulating these principles I considered more stringent restrictions on contacts with those outside the Agency than those described below. At my request , my staff met with staff members of the Administrative Conference of the United States to discuss these issues. This organization is an independent agency that develops improvements to the legal procedures by which Federal agencies administer their programs. Based on the recommendations of the staff members of the Administrative Conference and those of the Office of General Counsel, I am convinced that restrictions beyond those set out below would unnecessarily inhibit the free flow of information and views. In adopting these flexible procedures I am relying on EPA employees to use their common sense and good judgment to conduct themselves with the openness and integrity which alone can ensure public trust in the Agency.
EPA will provide, in all its programs, for the fullest possible public participation in decision-making. This requires not only that EPA employees remain open and accessible to those representing all points of view, but also that EPA employees responsible for decisions take affirmative steps to seek out the views of those who will be affected by the decisions. EPA will not accord privileged status to any special interest group, nor will it accept any recommendation without careful examination.
In order to make the public fully aware of my contacts with interested persons, I have directed that a copy of my appointment calendar for each week be placed in the Office of Public Affairs and made available to the public at the end of the week. The Deputy Administrator, and all Assistant Administrators, Associate Administrators, Regional Administrators, and Staff Office Directors shall make their appointment calendars available in a similar manner.
Litigation and Formal Adjudication
EPA is engaged in a wide range of litigation, both enforcement and defensive in nature. All communication with parties in litigation must be through the attorneys assigned to the case. Program personnel who receive inquiries from parties in matters under litigation should immediately notify the assigned attorney, and should refer the caller to that attorney.
Formal adjudications, such as pesticide cancellation proceedings, are governed by specific requirements concerning ex parte communications, which appear in the various EPA rules governing those proceedings. These rules are collected and available in the Office of General Counsel, Room 545, West Tower. I will conduct myself in accordance with these rules, and I expect all EPA employees to do the same.
In either formal or informal rulemaking proceedings under the Administrative Procedures Act, EPA employees must ensure that the basis for the Agency's decision appears in the record. Therefore, be certain (1) that all written comments received from persons outside the Agency (whether during or after the comment period) are entered in the rulemaking docket, and (2) that a memorandum summarizing any significant new factual information or argument likely to affect the final decision received during a meeting or other conversations is placed in the rulemaking docket.
You are encouraged to reach out as broadly as possible for views to assist you in arriving at final rules. However, you should do so in a manner that ensures, as far as practicable, that final decisions are not taken on the basis of information or arguments which have not been disclosed to members of the public in a timely manner. This does not mean that you may not meet with one special interest group without inviting all other interest groups to the same meeting, although all such groups should have an equal opportunity to meet with EPA. It does mean , however, that any oral communication regarding significant new factual information or argument affecting a rule, including a meeting with an interest group, should be summarized in writing and placed in the rulemaking docket for the information of all members of the public.
William D. Ruckelshaus