In a formal rulemaking, is an attorney's inquiry about the status of the rulemaking considered a prohibited ex parte communication?

In a formal rulemaking, is an attorney's inquiry about the status of the rulemaking considered a prohibited ex parte communication?

• A. Yes, because any communication about ongoing rulemaking with the Administrator is prohibited ex parte.
• B. No, because ex parte rules apply only to evidence and merits, not status inquiries.
• C. No, because the APA does not prohibit requests for status reports on matters covered by the Act.
• D. Yes, because it occurred after the conclusion of the rulemaking.

Answer: (C)

In formal rulemaking, the rules against ex parte communications target attempts to influence the agency’s on-the-record decision with new evidence or arguments, not everyday administrative updates about the process. Asking for a status report is a neutral, informational request that does not advocate a position or introduce new merits for consideration. Therefore, it is not treated as a prohibited ex parte communication. The APA does not prohibit requests for status reports on matters covered by the Act; such inquiries simply seek information about where the process stands. If the inquiry were used to press a position or relay new evidence or arguments, that could raise ex parte concerns, but a plain status check is allowed. Other options overstate or misplace the restriction: ex parte rules aren’t limited to “evidence and merits” in a way that would bar status questions, and timing after a conclusion doesn’t create a new prohibition for ongoing communications in the rulemaking context.

In formal rulemaking, the rules against ex parte communications target attempts to influence the agency’s on-the-record decision with new evidence or arguments, not everyday administrative updates about the process. Asking for a status report is a neutral, informational request that does not advocate a position or introduce new merits for consideration. Therefore, it is not treated as a prohibited ex parte communication.

The APA does not prohibit requests for status reports on matters covered by the Act; such inquiries simply seek information about where the process stands. If the inquiry were used to press a position or relay new evidence or arguments, that could raise ex parte concerns, but a plain status check is allowed.

Other options overstate or misplace the restriction: ex parte rules aren’t limited to “evidence and merits” in a way that would bar status questions, and timing after a conclusion doesn’t create a new prohibition for ongoing communications in the rulemaking context.