Agencies are not precluded from receiving, in the context of informal rulemaking, views or information outside the usual channels for public comment, notwithstanding the ex parte contacts doctrine developed in the D.C. Circuit, and the Office of Management and Budget (OMB) is under no duty to refrain from communicating with rulemaking agencies pursuant to its implementation of Executive Order No. 12,291.
The Administrative Procedure Act’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 of proposed rulemaking. Therefore, in order to reduce the danger of reversal, such communication 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 communications from OMB or other federal agencies which form part of its deliberative process; however, the deliberative process does not extend to the legal or policy views of persons outside of executive or independent agencies, even when they are transmitted by an agency acting as a conduit for the third party.