Contacts Between the Office of Management and Budget and

Executive Agencies Under Executive Order No. 12,291

Agencies are not precluded from receiving, in the context of informal rulemaking, views 

or information outside the usual channels for public comment, notw ithstanding the ex

parte contacts doctrine developed in the D.C. Circuit, and the Office of M anagement 

and Budget (OM B) is under no duty to refrain from comm unicating with rulemaking 

agencies pursuant to its implementation o f Executive O rder No. 12,291.

The Administrative Procedure A ct’s provisions for judicial review and public participation in informal rulemaking may be construed to imply an agency obligation to disclose 

communications from outside the agency, including communications which occur after 

the publication o f proposed rulemaking. Therefore, in order to reduce the danger o f 

reversal, such comm unication should be included in the administrative file and the 

record for judicial review, at least to the extent that they are factual as opposed to 

deliberative in nature.

A rulemaking agency need not disclose substantive comm unications from O M B or other 

federal agencies which form part of its deliberative process; how ever, the deliberative 

process does not extend to the legal or policy views o f persons outside o f executive or 

independent agencies, even when they are transmitted by an agency acting as a conduit 

for the third party.

April 24, 1981

MEMORANDUM OPINION FOR TH E DIRECTOR, 

OFFICE OF M ANAGEM ENT AND BUDGET

Your Office has requested the views of this Office regarding the 

legality of contacts which may occur between you and your staff and 

officials of executive agencies in the implementation of Executive Order 

No. 12,291, 3 C.F.R. 127 (1982) (Order). The Order generally requires 

these agencies to maximize the benefits and minimize the costs of 

regulations promulgated following informal rulemaking proceedings. 

Your Office is charged with ensuring compliance with these requirements by engaging in prepublication review of proposed and final rules 

and preliminary and final Regulatory Impact Analyses (RIA). In performing this oversight role, you and your staff will presumably communicate on a regular basis with agency officials regarding the substance 

of proposed regulations. You might also wish to transmit to these 

agencies information or arguments received from other federal agencies 

or from non-federal parties. Some or all of these contacts might be

107
challenged, under the so-called “ex parte contacts” doctrine developed 

in the D.C. Circuit.1

We conclude that neither the ex parte contacts doctrine nor other 

generally applicable provisions of law impose any duties on you or 

your staff to refrain from communicating with rulemaking agencies. 

The law is uncertain as to whether rulemaking agencies must disclose 

communications from your Office which occur after publication of a 

notice of proposed rulemaking. In order to reduce the danger of reversal, we believe that rulemaking agencies should include in the administrative file and the record for judicial review: (1) oral or written 

information from your Office of a purely factual nature; and (2) oral or 

written material received from an interested party outside the federal 

government which influences the views your Office expresses to the 

agency. Your Office could assist rulemaking agencies in complying 

with these recommendations by following procedures similar to those 

described herein.

I. Ex Parte Contacts Doctrine

The D.C. Circuit has thrice addressed the question of ex parte contacts in informal rulemaking. In Home Box Office, Inc. v. FCC, 567 

F.2d 9 (D.C. Cir) (per curiam), cert, denied, 434 U.S. 829 (1977), interested private parties engaged in wide-spread, off-the-record communications with FCC Commissioners and staff regarding a proposed cable 

television rule. The court condemned the comments on several 

grounds, including the D ue Process Clause, the judicial review requirements of the Administrative Procedure Act (APA), and what the court 

perceived to be a general need to ensure rationality and fairness in 

agency decision processes. In a broadly worded dictum, the court 

stated that such communications would be improper even if the FCC 

disclosed them in the administrative file in time to allow public comment and judicial review. The court also said that such comments 

would be permissible prior to publication of a notice of proposed 

rulemaking. 567 F.2d at 59.

In Action for Children’s Television v. FCC, 564 F.2d 458 (D.C. Cir. 

1977), a different panel of the D.C. Circuit refused to apply Home Box

Office retroactively. In dictum, the panel severely criticized the Home

Box Office rationale and expressed its view that the doctrine should be

1 Sangamon Valley Television Corp. v. United States, 269 F.2d 221 (D.C Cir. 1959); Home Box Office,

Inc. v. FCC, 567 F.2d 9 (per curiam) (D.C. Cir.), cert denied, 434 U.S. 829 (1977); Action for Children's

Television v. FCC, 564 F.2d 458 (D.C. Cir. 1977); United States Lines, Inc. v. FMC, 584 F.2d 519 (D.C. 

Cir. 1978); Hercules. Inc. v. EPA, 598 F.2d 91 (D.C. Cir. 1978); National Small Shipments Traffic

Conference, Inc. v. ICC, 590 F.2d 345 (D.C. Cir. 1978); United Steelworkers o f America v. Marshall, 647 

F.2d 1189 (D.C. Cir. 1980), cert denied sub nom. Lead Industries Ass'n v. Donovan, 453 U.S 913 (1981).

While other circuits have not taken a clear position on ex parte contacts, the D.C. Circuit cases are 

particularly significant because so many federal regulatory actions are reviewed there and because, as 

a practical matter, the D.C. Circuit is often the court of last resort in light of the Supreme Court's 

limited docket.

108
limited to a narrow class of cases involving competing private claims to 

a valuable privilege. Id. at 477.

In United Steelworkers o f America v. Marshall, 647 F.2d 1189 (D.C. 

Cir. 1980), cert, denied sub nom. Lead Industries Ass'n v. Donovan, 453 

U.S. 913 (1981), the D.C. Circuit limited the ex parte contacts doctrine 

in the context of intra-agency communications. While formulating a 

final rule regulating workplace exposure to airborne lead, the Assistant 

Secretary of Labor consulted closely with a staff attorney who argued 

for the agency staffs proposed standard. The Assistant Secretary also 

commissioned private consultants to review and analyze the record, and 

partly relied on these studies in formulating a final rule. The Court, per

Chief Judge Wright, held that these off-the-record intra-agency communications were permissible, even if slanted towards a particular viewpoint,2 if they were part of the “deliberative process,” a concept 

closely analogous to the deliberative process exemption under the Freedom of Information Act (FOIA).3

The doctrine developed in Home Box Office involves three distinct 

requirements: (1) a flat prohibition on agency receipt of views and 

information outside the usual channels for public comment; (2) a requirement that such views and information, if received, be memorialized and placed in the administrative file for public comment; and (3) a 

duty to place such views and information in the record for judicial 

review. In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 

519 (1978), the Supreme Court severely undermined the Home Box

Office doctrine. It held that, absent exceptional circumstances, a reviewing court may not impose special rulemaking procedures beyond those 

set forth in the APA.

We believe that Vermont Yankee is inconsistent with D.C. Circuit’s 

flat ban on agency receipt of views or information outside the usual 

channels for public comment. This purely procedural prohibition finds 

no support whatever in the text or the legislative history of the APA. 

The APA contains no prohibition on such contacts in informal rulemaking, although it has always prohibited them in adjudication,4 and a 

recent amendment provides penalties and remedies when they occur in 

adjudication or formal rulemaking.5 Early versions of that amendment 

prohibited such contacts in informal rulemaking as well,6 but the provi2 Compare Association o f National Advertisers, Inc. v . FTC, 627 F.2d 1151 (D.C. Cir 1979) (disqualification for bias).

3 5 U.S.C § 552(b)(5) (1976).

4 5 U.S.C § 554(d) (1976).

5Government in the Sunshine Act, 5*U.S C § 557(d) (1976).

*See S. 260, 93d Cong., 1st Sess 119 Cong. Rec. 647-51 (1973); H.R. 10000, 93d Cong., 1st Sess. 

119 Cong. Rec 28,205 (1973); Hearings on Government in the Sunshine Before the Subcomm on

Reorganization, Research, and International Organizations of the Senate Comm, on Government Operations, 93d C ong, 2d Sess. 189-254 (1974); Senate Comm, on Government Operations, 93d Cong., 2d 

Sess., Government in the Sunshine: Response to Subcomm. Questionnaire (Comm. Print 1974).

109
sion was deleted with the intention of leaving informal rulemaking 

unaffected.7 We believe this history to be strong evidence that there is 

no basis for imposition by a court of a flat prohibition on agency 

receipt of views or information outside the ordinary channels. You and 

your staff may freely contact agencies regarding the substance of proposed regulations, and m ay do so by way of telephone calls, meetings, 

or other forms of communication unavailable to members of the public.

It is unclear whether the two other requirements of Home Box

Office—that the substance of contacts be placed in the administrative 

file and the record for judicial review—can survive Vermont Yankee.

These requirements might possibly be supportable, not as part of an “ex

parte contacts” doctrine, but as implications of the APA ’s provisions for 

judicial review and for public participation in informal rulemaking, a 

question we discuss in the following section. What is clear, however, is 

that the disclosure obligations, if any, lie with the rulemaking agency 

and not with your Office. Your Office is therefore under no legal 

disability with respect to contacts with rulemaking agencies. At most, 

your Office could adopt procedures as a matter of policy to assist the 

agencies in complying w ith our recommendations or with rules fashioned by the agencies themselves to address this issue.8

II. Disclosure Obligations of MnilemmaMiig Agencies

We believe that, at least as a matter of protection against reversal in 

the D.C. Circuit, rulemaking agencies should disclose in the administrative file and the record for judicial review substantive communications 

from your Office to the extent that they are (1) purely factual as 

opposed to deliberative in nature, or (2) received by your Office from a 

source outside of executive or independent agencies. This conclusion is

7 S. Rep. No. 354, 94th Cong., 1st Sess. 35 (1975); 121 Cong. Rec. 35,330 (1975) (remarks of Sen. 

Kennedy).

8Specific “ hybrid rulemaking” statutes may sometimes impose special' rules regarding contacts 

between your Office and rulemaking agencies. The Clean Air A ct Amendments of 1977, for example,

require that written documents compiled during your Office’s review procedures be placed in the

rulemaking docket prior to the promulgation of a final rule. 42 U S.C. § 7607(dX4)(B)(ii) (Supp. Ill

1979). These documents are excluded from the record on judicial review. Id. § 7607(d)(4)(B)(ii). Two 

challenges to interagency participation in Clean A ir Act rulemaking are now pending in the D.C. 

Circuit. Sierra Club v. Costle, Nos. 79-1565 et al.\ American Petroleum Institute v. Costle, Nos. 79-1104 

et a I. In those cases EPA officials m et with other Executive Branch officials to discuss a rule after the 

close of the public comment period; the substance of these meetings was not fully disclosed in the

record for judicial review. The government takes the position that EPA fully complied with the Clean 

Air A ct’s requirements. The cases have been argued and await decision.0

Internal agency regulations, which have the force of law until repealed, may also limit contacts 

with your OfTice during rulemaking. Cf. 47 C.F.R. § 1 (1979) (FCC); 16 C.F.R. § 1012 (1979) (CPSC);

14 C.F.R. § 300.2 (CAB).

°Note: In Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), the court of appeals held that “the 

existence of intra-Executive Branch meetings during the post-comment period . . . violated neither 

the procedures mandated by the Clean Air Act nor due process.” 657 F.2d at 408. In American

Petroleum Institute v. Costle, 665 F.2d 1176 (D.C. Cir. 1981) cert, denied 455 U.S. 1034 (1982), the 

court of appeals refused to consider the plaintiff's objection to E PA ’s post-comment period contacts 

with OMB, on grounds that this objection had not first been raised in the administrative proceedings. 

Ed.

110
based on a combination of possible disclosure requirements in the APA 

and a deliberative process exception. ‘

A. APA Provisions

The APA provides that judicial review of informal rulemaking shall 

be based on the “whole record.” 5 U.S.C. § 706. The Supreme Court 

has never clearly stated what types of material must be included in the 

record for judicial review. Traditionally, informal rulemaking procedures were thought to leave the agency almost complete discretion as 

to what was included in the record; judicial review was correspondingly narrow and deferential. More recently, the Supreme Court has 

stated that judicial review of informal agency action should be “searching and careful,” 9 and that a reviewing court should remand a case to 

the agency if its determination is not “sustainable on the administrative 

record made.” 10 The relatively intensive judicial scrutiny implied by 

these statements seems incompatible with the traditional idea that the 

agency retains complete control over what goes in the record. Lower 

federal courts have expanded on the Supreme Court’s tentative statements by inferring a requirement that the record for judicial review 

contain all material, whether factual, analytical, or argumentative, 

which is substantive in the sense that it might have influenced the 

agency’s decision.11 Finally, the Supreme Court in Vermont Yankee

gave somewhat conflicting signals on the question.12 The Court’s emphasis on the agency’s discretion to structure its own procedures free of 

judicial interference suggests that this discretion should include the 

power to determine the content of the record for judicial review. On 

the other hand, the Court’s remand of the case to the D.C. Circuit for a 

determination of whether the rule was sustainable on the administrative 

record points to a more stringent record requirement.13

The state of the law on this point is, in short, confused. We do not 

believe it to be particularly useful to attempt to predict whether the 

Supreme Court would require that substantive oral or written communications received by the agency be included in the record for judicial 

review. We would, however, recommend that agencies generally adopt

9Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

I0Camp v. Pitts, 411 U.S. 138, 143 (1973) (per curiam).

11See National Courier Ass'n v Board o f Governors, 516 F.2d 1229, 1241 (D .C Cir. 1975). See

generally Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D .C C ir 1973), cert, denied, 417 U.S. 

921 (1974); Kennecott Copper Corp. v. EPA, 462 F.2d 846 (D.C. C ir 1972); International Harvester Co.

v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973). C f Greater Boston Television Corp. v. FCC, 444 F.2d 841 

(D.C. C ir 1970), cert, denied, 403 U.S. 923 (1971)

12 Compare S tew art, Vermont Yankee and The Evolution o f Administrative Procedure, 91 H arv. L. 

Rev. 1805 (1978), with Byse, Vermont Yankee and the Evolution o f Administrative Procedure: A Somewhat Different View, 91 Harv. L. Rev 1823 (1978).

13 One com m enter has argued that in light of the adm inistrative record the C ourt should simply 

have affirmed the agency rather than remanding. Breyer, Vermont Yankee and the Courts' Role m the

Nuclear Energy Controversy, 91 H arv L Rev. 1833 (1978).

in
this course to avoid a substantial danger of reversal in the D.C. Circuit 

without any assurance of vindication in the Supreme Court.14

We would also recommend that agencies generally include substantive oral or written communications in the administrative file for public 

comment and criticism, at least when these communications occur 

before the close of public comment.15 A “public comment” requirement 

could be inferred from the A PA ’s provision for review on the whole 

record and its guarantee of an “opportunity to participate in the rule 

making,” 5 U.S.C. § 553(c). On the other hand, such a requirement 

comes perilously close to the type of extra-statutory procedure Vermont

Yankee forbids courts to require of agencies. In addition, the opportunity to comment on evidence in the record seems inconsistent with the 

realities of informal rulemaking, clearly sanctioned by the APA, that 

interested parties can file comments on the last day of the comment 

period and thereby deprive others outside the government of a chance 

to comment unless the agency, in its discretion, chooses to reopen the 

file. The argument for public comment is considerably weaker than the 

case for placing substantive material in the judicial record; our judgment is that the Supreme Court would not impose such a requirement. 

Nevertheless, the D.C. Circuit probably would require public comment, 16 and the prospects of obtaining Supreme Court review of such a 

determination cannot be predicted.

B. Deliberative Process Exception

Notwithstanding these general recommendations, we believe that the 

rulemaking agency need not disclose substantive communications from 

your Office which form part of the agency’s deliberative process. A 

variety of legal doctrines recognize a privilege against compelled disclosure of the federal government’s deliberations. The need for nondisclosure is inherent in the President’s constitutional power to “take 

Care that the Laws be faithfully executed,” 17 by “supervising] the 

guid[ing]” executive agencies in their “construction of the statutes 

under which they act in order to secure that unitary and uniform 

execution of the laws which Art. II of the Constitution evidently 

contemplated in vesting general executive power in the President 

alone.” 18 Similar concerns undergird the constitutionally based privi14 The agency need not engage in unnecessary duplication of material already contained in the 

record, however.

15 A case-by-case analysis may be required to determine whether the administrative file must be 

reopened to allow public comment on communications received after the close of the comment period. 

See Ethyl Corp. v. EPA, 541 F 2d 1 (D.C. Cir.), cert, denied, 426 U.S. 941 (1976).

lGSee Home Box Office, Inc. v. FCC, supra 567 F.2d 9; Ethyl Corp. v. EPA, supra, 541 F.2d 1. Cf.

United States Lines, Inc. v. FMC, 584 F.2d 519 (D.C. Cir. 1978) (informal adjudication).

17 U.S. Const., Art. II, §3 See also U.S. Const., Art. II, §2 (presidential power to require written 

opinions from heads of executive departments).

Myers v United States, 272 U.S. 52, 135 (1926).

112
lege for certain deliberative communications within the Executive 

Branch,19 as well as the rule against probing an administrator’s mind in 

court absent a showing of bad faith or other exceptional circumstances.20 Congress has safeguarded the deliberative process by exempting deliberative documents from disclosure under the FOIA.21 Finally, 

the D.C. Circuit held the ex parte contacts doctrine inapplicable to 

deliberative process communications in United Steelworkers, supra. For 

similar reasons, we believe that oral or written communications which 

are part of the deliberative process need not be disclosed under any 

provisions of the APA.

Deliberative process communications are those designed to aid the 

agency in determining its course based on the facts of record. They 

include analyses of these facts,22 legal and policy arguments,23 and 

factual data that cannot be reasonably segregated from deliberative 

material.24 They do not include oral or written factual data which can 

be reasonably segregated from deliberative material.25 Thus the rulemaking agency need not disclose your Office’s legal and policy arguments and analyses of the facts, but should generally disclose readily 

segregable factual material.

Communications from executive or independent agencies are entitled 

to deliberative process protection. Your Office surely participates in the 

deliberative process when it exercises the power of the President delegated to you to “supervise and guide” the agency by communicating 

factual analyses or legal and policy arguments. We believe the deliberative process is also implicated when your Office acts as a “conduit” for 

views of other executive agencies, since these agencies are part of an 

integrated Executive Branch headed by the President. We reach the 

same conclusion with respect to independent agencies.26 Although 

largely freed of presidential oversight and supervision, these agencies 

are part of a unitary government which seeks as far as possible to 

coordinate its programs and policies.27

,3See United States v Nixon, 418 U.S. 683 (1974).

20See, e.g.. United States v Morgan, 313 U S 409, 422 (1941), National Courier Ass’n v. Board o f

Governors, 516 F.2d at 1241-42.

21 5 U.S.C. § 552(b)(5); see generally N L R B v. Sears. Roebuck & Co.. 421 U.S. 132 (1975).

22 See United Steelworkers o f America v. Marshall, supra, 647 F 2d at 1212 n.20, 1218.

23 See, e.g., N L R B v. Sears, Roebuck & Co., 421 U.S. at 149 (exemption 5 protects attomey-client 

and attorney work-product privileges); EPA v. Mink, 410 U.S. 73, 91 (1973) (exemption 5 protects 

“matters of law, policy or opinion”).

24 See EPA v. Mink, 410 U.S. 73, 88 (1973); United Steelworkers o f America v. Marshall, supra, 647 

F.2d at 1220; Mead Data Central, Inc. v. United States Department o f Air Force, 566 F.2d 242, 260-61 

(D C Cir. 1977).

25 See cases cited in note 24, supra. Also not within the deliberative process are communications 

which the agency adopts as the explanation for its action. See Renegotiation Board v. Grumman

Aircraft Engineering Corp., 421 U.S. 168 (1975); N LR B v Sears, Roebuck & Co., supra, 421 U.S. 132

26 Deliberative process documents transmitted from an independent agency to an Executive Branch 

agency would be exempt from disclosure under FOIA. 5 U.S.C. §§ 552(b)(5), 552(e)

27 Our conclusions in this regard are consistent with Recommendation 80-6 of the Administrative 

Conference of the United States Regarding Executive Branch Communications in Informal Rulemaking Proceedings Administrative Conference of the United States: Recommendations and Reports 27 

(1980).

113
Our view is that the deliberative process does not extend to the legal 

or policy views of persons outside of executive or independent agencies. These persons are not within the overall decision process of the 

rulemaking agency. Their views not being protected by a deliberative 

process exception, the rulemaking agency would be well advised to 

place these views in the administrative file and the record for judicial 

review if the views might affect the agency’s decision. Agencies should 

follow this procedure even if the views are transmitted by an executive 

or independent agency acting as a “conduit” for the third party.

III. ©M® IPrmcedmiirss

As discussed above, your Office is under no legal obligation to limit 

its communications with rulemaking agencies. We also conclude that, as 

a matter of policy, the agencies should include in the administrative file 

and the record for judicial review substantive oral or written communications from your Office which (1) are purely factual in nature, or (2) 

are “conduit” transmissions of views or information from persons outside of executive or independent agencies. Your Office could assist the 

rulemaking agencies in the task of distinguishing what should be disclosed from what may be kept out of the public record, as follows:

(1) Your Office could separate, as far as possible, purely factual 

material from arguments and analyses in oral or written comments it makes to the rulemaking agency under the Order. A 

format could be developed for comments which clearly draws 

this distinction. The agency should generally be entitled to rely 

on your Office’s judgment that the transmitted material is deliberative rather than factual in nature.

(2) With respect to “conduit” communications, the official responsible for commenting to the rulemaking agency could determine whether his views have been influenced by oral or written 

communications received from someone outside of executive or 

independent agencies. If so, your Office could require that the 

third party transmit this material to the rulemaking agency for 

inclusion in the administrative file and the record for judicial 

review. The official may transmit to the rulemaking agency a 

statement of your Office’s views, which need not be disclosed 

except to the extent it includes purely factual material.

Alternatively, or in conjunction with these procedures, your Office 

could seek to ensure that rulemaking agencies follow the advice contained in this memorandum. Agencies could institute a policy of disclosing in the administrative file and the record for judicial review all 

material which your Office identifies as purely factual in nature, as well 

as the identified conduit material transmitted under (2) above. The 

agencies would have to develop procedures for memorializing the non114
deliberative parts of oral communications from your Office. Your 

Office could assist the agencies in following these recommendations by 

rendering informal advice or by more formal instructions.

T h e o d o r e B. O lson

Assistant Attorney General

Office o f Legal Counsel

115