During formal rulemaking, an attorney for a regulated entity met staff at a restaurant to discuss the status and merits of the rule. Will the district court likely rule that the ex parte communications were prohibited?

During formal rulemaking, an attorney for a regulated entity met staff at a restaurant to discuss the status and merits of the rule. Will the district court likely rule that the ex parte communications were prohibited?

• A. Yes, because status inquiries cannot be used to discuss merits.
• B. Yes, because the meeting occurred offsite.
• C. No, because status inquiries are allowed in formal rulemaking.
• D. No, because the communications were not about the merits.

Answer: (A)

In formal rulemaking, ex parte contacts with agency staff about the merits of the rule are not allowed. The only permissible off-the-record discussions are strictly procedural, such as questions about the status or timing of the proceedings. If the meeting touches on both status and merits, it crosses the line: merits discussions cannot occur in ex parte contacts. In this scenario, the attorney met with staff to discuss both the status and the merits of the rule. That means the conversation included merits discussions, which makes the ex parte communication prohibited. The location of the meeting (offsite) doesn’t change the rule—the substance matters, not where it happened.

In formal rulemaking, ex parte contacts with agency staff about the merits of the rule are not allowed. The only permissible off-the-record discussions are strictly procedural, such as questions about the status or timing of the proceedings. If the meeting touches on both status and merits, it crosses the line: merits discussions cannot occur in ex parte contacts.

In this scenario, the attorney met with staff to discuss both the status and the merits of the rule. That means the conversation included merits discussions, which makes the ex parte communication prohibited. The location of the meeting (offsite) doesn’t change the rule—the substance matters, not where it happened.