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Ex parte communication (administrative state)

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An ex parte communication, in the context of administrative rulemaking, is a communication during the rulemaking process between a member of the public and a federal agency employee or administrative law judge regarding a proposed agency action. Open and transparent ex parte communications are permitted during the informal rulemaking process to encourage public participation. However, they are prohibited during the hearing phase of formal rulemaking, which is similar to a courtroom proceeding.[1]

Background

Ex parte is a Latin phrase meaning "from one party." In a legal context, an ex parte communication refers to any contact between a party to a legal proceeding and the presiding judge without the knowledge or consent of the other party to the case. Similarly, in the context of administrative rulemaking, an ex parte communication refers to a communication during the administrative rulemaking process between a member of the public and a federal agency employee or administrative law judge regarding a proposed agency action.[2][1]

The Administrative Procedure Act provides the following definition of ex parte communication:

“ '[E]x parte communication' means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter.[3][4] ”

U.S. Code § 553, which governs the informal rulemaking process, does not place limitations on ex parte communications. In fact, according to a recommendation by the Administrative Conference of the United States, open, transparent communication between agency personnel and the general public is encouraged during informal rulemaking in order to facilitate public engagement. On the other hand, formal rulemaking, which is governed by U.S. Code § 556 and § 557, prohibits ex parte communications during the hearing phase, which operates according to rules similar to a court of law.[1]

See also

External links

Footnotes

  1. ↑ 1.0 1.1 1.2 Administrative Conference of the United States, "'Ex Parte' Communications in Informal Rulemaking," accessed August 31, 2017
  2. ↑ Legal Information Institute, "Ex parte," accessed August 31, 2017
  3. ↑ Legal Information Institute, "5 U.S. Code § 551 - Definitions," accessed August 31, 2017
  4. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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