In a formal rulemaking, a lobbyist for a regulated entity visits the Agency Administrator to discuss the status of the rulemaking and briefly expresses concerns. The press later reports the meeting as a prohibited ex parte communication. Is the discussion likely a prohibited ex parte communication?

In a formal rulemaking, a lobbyist for a regulated entity visits the Agency Administrator to discuss the status of the rulemaking and briefly expresses concerns. The press later reports the meeting as a prohibited ex parte communication. Is the discussion likely a prohibited ex parte communication?

• A. No, because requests for status reports are allowed under the APA.
• B. No, because the lobbyist and Agency Administrator are friends and the discussion was brief.
• C. Yes, because ex parte communications are categorically prohibited in rulemaking.
• D. Yes, because, even though status reports are allowed, using a status request as a pretext to influence the outcome is prohibited.

Answer: (D)

In formal rulemaking, ex parte communications with the decision-maker are not allowed when their purpose is to influence the outcome. Status updates themselves aren’t automatically forbidden, and agencies may receive neutral information and place it in the record. The key issue is whether the discussion is being used as a pretext to sway the final rule. Here, a lobbyist visits the Agency Administrator to discuss the rule’s status and briefly expresses concerns; if that brief discussion is intended to press for a particular result, it becomes an ex parte communication aimed at influence. The press labeling it as prohibited ex parte communication makes sense because the line between a neutral status inquiry and an attempt to shape the decision is crossed. So the correct idea is that even though status inquiries can be allowed, using one as a vehicle to influence the outcome is prohibited. The other choices miss this nuance by treating status talks as always harmless, protected by friendship, or categorically prohibited without recognizing permissible informational interactions and disclosure requirements.

In formal rulemaking, ex parte communications with the decision-maker are not allowed when their purpose is to influence the outcome. Status updates themselves aren’t automatically forbidden, and agencies may receive neutral information and place it in the record. The key issue is whether the discussion is being used as a pretext to sway the final rule. Here, a lobbyist visits the Agency Administrator to discuss the rule’s status and briefly expresses concerns; if that brief discussion is intended to press for a particular result, it becomes an ex parte communication aimed at influence. The press labeling it as prohibited ex parte communication makes sense because the line between a neutral status inquiry and an attempt to shape the decision is crossed. So the correct idea is that even though status inquiries can be allowed, using one as a vehicle to influence the outcome is prohibited. The other choices miss this nuance by treating status talks as always harmless, protected by friendship, or categorically prohibited without recognizing permissible informational interactions and disclosure requirements.