During a formal rulemaking proceeding, industry representatives asked the Agency Administrator about the status of the rulemaking. Is this meeting a prohibited ex parte communication?

During a formal rulemaking proceeding, industry representatives asked the Agency Administrator about the status of the rulemaking. Is this meeting a prohibited ex parte communication?

• A. No, because the Administrative Procedure Act does not prohibit requests for status reports during rulemaking proceedings.
• B. No, because the federal court does not have jurisdiction over such inquiries.
• C. Yes, because discussing timing constitutes an improper ex parte communication.
• D. Yes, because any contact about an ongoing rulemaking is prohibited.

Answer: (A)

Ex parte rules in rulemaking focus on whether a private contact tries to introduce new information or arguments about the rule outside the formal record. Asking for a status update on the rulemaking is a purely procedural inquiry about timing, not a push to change the substance or present new evidence. Therefore it does not constitute an improper ex parte communication. That’s why the best answer is that such a meeting isn’t prohibited—it’s not the type of advocacy or new information that ex parte rules are designed to bar. If the inquiry started presenting new data or arguments about the rule, the analysis would be different, but a timing question remains procedural.

Ex parte rules in rulemaking focus on whether a private contact tries to introduce new information or arguments about the rule outside the formal record. Asking for a status update on the rulemaking is a purely procedural inquiry about timing, not a push to change the substance or present new evidence. Therefore it does not constitute an improper ex parte communication.

That’s why the best answer is that such a meeting isn’t prohibited—it’s not the type of advocacy or new information that ex parte rules are designed to bar. If the inquiry started presenting new data or arguments about the rule, the analysis would be different, but a timing question remains procedural.