crs_reports: R49483

Congressional Research Service reports with summaries, authors, and topic classifications.

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R49483 Ex Parte Communications in Informal Rulemaking: A Legal Framework 2026-10-08T04:00:00Z 2026-10-10T05:08:38Z Active Reports Benjamin M. Barczewski   Ex parte communications are nonpublic communications between an agency official and either a person outside the government or inside the government but in a different agency to which the public has not been given notice or a chance to respond. Ex parte communications could include oral or written communications, written correspondence submitted to an agency, or meetings between an agency and stakeholders. In the informal rulemaking context, ex parte communications typically refer to written or oral communications that occur outside of the comment period. The Administrative Procedure Act (5 U.S.C. §§ 551–559, 701–706) does not prohibit ex parte communications between an agency and an outside party during informal rulemaking. It also does not prohibit ex parte communications between agencies or between an agency and the President or his advisors. Rather, prohibition or regulation of ex parte communications primarily flows from agency-specific statutes, rules, and guidance. Many agencies, however, have no stated policy on ex parte communications during informal rulemaking. Courts require agencies to include the justification for a rulemaking to be contained in the public rulemaking record. Accordingly, if the ex parte communication forms the basis for the agency’s action, judicial interpretations of the APA would require that communication to be reflected in the record. If the communication is not reflected in the record and the record does not otherwise support the agency’s action, the rule could be subject to vacatur and remand by a court. A small minority of courts have taken a more critical view of ex parte communications, setting out a per se ban on them. Many of those cases, however, have been limited by subsequent decisions to apply to a relatively small number of informal rulemakings that are akin to quasi-judicial proceedings, such as where an agency regulation awards a valuable privilege to a specific person or entity. Despite the general absence of statutory and judicial regulation of ex parte communications, whether and to what extent agencies accept and rely on ex parte communications have generated significant debate. To some, ex parte communications in informal rulemaking can provide agencies with valuable information regarding the views of affected parties and potentially increase the democratic legitimacy of the agency’s policy. To others, they raise concerns that the agency’s ultimate decision was swayed or even determined by nonpublic information that was not subject to scrutiny through the comment process. Even if ultimately not considered by the agency, however, ex parte communications can still create the appearance of undue influence by those with access to agency decisionmakers. Congress could enact a statute determining how agencies should treat ex parte communications, including setting out requirements for publication and further public comment if the circumstances warranted. Congress could also likely ban ex parte communications outright by barring agencies from considering any ex parte communication. https://www.congress.gov/crs_external_products/R/PDF/R49483/R49483.2.pdf https://www.congress.gov/crs_external_products/R/HTML/R49483.html

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