Which statement accurately describes ex parte communications in informal rulemaking?

Which statement accurately describes ex parte communications in informal rulemaking?

• A. They are prohibited ex parte communications.
• B. They must be submitted in writing.
• C. They are not prohibited ex parte communications.
• D. They void the rulemaking.

Answer: (C)

In informal rulemaking, ex parte communications are allowed. The important point is transparency: such private briefings or discussions can happen, but they must be disclosed and made part of the rulemaking record so the public can see what influence they may have had. The agency must base its final rule on the record as a whole, including any disclosed ex parte communications, rather than on undisclosed private discussions. That is why the statement that ex parte communications are not prohibited best describes the rule. The other options misstate the rule by implying a ban, a requirement to submit only in writing, or that any ex parte contact would void the rulemaking.

In informal rulemaking, ex parte communications are allowed. The important point is transparency: such private briefings or discussions can happen, but they must be disclosed and made part of the rulemaking record so the public can see what influence they may have had. The agency must base its final rule on the record as a whole, including any disclosed ex parte communications, rather than on undisclosed private discussions. That is why the statement that ex parte communications are not prohibited best describes the rule. The other options misstate the rule by implying a ban, a requirement to submit only in writing, or that any ex parte contact would void the rulemaking.