During informal rulemaking, industry representatives met with the Agency Administrator, and a suit was filed alleging an illegal ex parte communication. Is such a meeting a prohibited ex parte communication?

During informal rulemaking, industry representatives met with the Agency Administrator, and a suit was filed alleging an illegal ex parte communication. Is such a meeting a prohibited ex parte communication?

• A. Yes, because any contact with agency staff during informal rulemaking is a prohibited ex parte communication.
• B. Yes, because Agency Administrator had an obligation to avoid ex parte communications.
• C. No, because communications with agency administrators or staff during informal rulemaking proceedings are not prohibited ex parte communications.
• D. No, because informal rulemaking allows unrestricted discussions.

Answer: (C)

In informal rulemaking, ex parte communications are allowed. The notice-and-comment process does not ban meetings between interest groups and the Agency Administrator or staff. What matters is that the final rule rests on the entire public record, including posted notices and public comments, not on private discussions alone. So a meeting like this is not a prohibited ex parte communication. The other options wrongly suggest a blanket prohibition or an unrestricted, unstructured process, which isn’t how informal rulemaking operates.

In informal rulemaking, ex parte communications are allowed. The notice-and-comment process does not ban meetings between interest groups and the Agency Administrator or staff. What matters is that the final rule rests on the entire public record, including posted notices and public comments, not on private discussions alone. So a meeting like this is not a prohibited ex parte communication. The other options wrongly suggest a blanket prohibition or an unrestricted, unstructured process, which isn’t how informal rulemaking operates.