What action should a federal agency take when an ex parte communication related to a formal rulemaking is revealed in the record, especially if it discusses merits rather than just status?

What action should a federal agency take when an ex parte communication related to a formal rulemaking is revealed in the record, especially if it discusses merits rather than just status?

• A. Ignore the communication as irrelevant to the record.
• B. Disclose the communication and permit equal opportunity for response in the record.
• C. Strike the communicating party from the record.
• D. Automatically reopen the rulemaking to consider new arguments.

Answer: (B)

In formal rulemaking, the record must be complete, fair, and open to challenge by all interested parties. When an ex parte communication that discusses the merits of the rule is revealed in the record, it could tilt the decision if others don’t have a chance to see and respond to it. The proper remedy is to disclose that communication and give all participants an equal opportunity to respond within the record, so the agency can evaluate the merits with a fully informed, balanced record. Ignoring it would undermine due process by letting undisclosed arguments influence the outcome. Striking the communicating party or automatically reopening the rulemaking aren’t the standard responses to this situation; disclosure with an opportunity to respond preserves fairness and integrity of the process.

In formal rulemaking, the record must be complete, fair, and open to challenge by all interested parties. When an ex parte communication that discusses the merits of the rule is revealed in the record, it could tilt the decision if others don’t have a chance to see and respond to it. The proper remedy is to disclose that communication and give all participants an equal opportunity to respond within the record, so the agency can evaluate the merits with a fully informed, balanced record.

Ignoring it would undermine due process by letting undisclosed arguments influence the outcome. Striking the communicating party or automatically reopening the rulemaking aren’t the standard responses to this situation; disclosure with an opportunity to respond preserves fairness and integrity of the process.