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UPDATE – Office of Management and Budget Clarifies Recovery Act Lobbying Rules

by Troutman Sanders LLP

By its Interim Guidance issued in April 2009, The Office of Management and Budget (”OMB”) has significantly clarified the meaning of the President’s March 20, 2009 Memorandum setting rules for registered lobbyists’ contacts with federal officials involved in Recovery Act funding.  As shown in the linked copies below, OMB’s Interim Guidance includes descriptions, definitions and a set of Frequently Asked Questions (“FAQs”).

The President’s Memorandum provided in part that executive branch officials may not consider the views of federally registered lobbyists about particular projects, applications, or applicants for Recovery Act funds unless those views are presented in writing. The OMB Interim Guidance sheds light on several ambiguities in the Memorandum about the scope of this prohibition.

The OMB guidance makes clear that the prohibition on oral communication with federally registered lobbyists only applies to discussions of particular projects, applications, or applicants for funding. The guidance defines a “particular project” as “a discrete and identifiable transaction, or set of transactions . . . in which specific parties have expressed an interest.”

The prohibition on oral communication does not apply to the following types of communications:

  • General Question Contacts:  This includes: requests for meetings; requests on the status of an action; inquiries about how to apply for funding, application deadlines, and to which agencies or officials applications or questions should be directed; and requests for information about program requirements and agency practices under the Recovery Act;
  • Widely Attended Meetings:  A gathering is widely attended if it is expected that a large number of persons will attend and that persons with a diversity of views or interests will be present; for example, if it is open to members throughout the interested industry or profession or if those in attendance represent a range of persons interested in a given matter. See 5 C.F.R. § 2635.204(g)(2);
  • General Policy Contacts:  Examples of general policy issues include discussions supporting funding of certain general populations, categories of projects, or broad geographical areas; and
  • Grant Administration Communications:  Once a grant is in administration, registered lobbyists may have oral communications with federal officials and other employees concerning the particular grant.

The OMB has also made clear that the prohibition on oral communication only applies to federally registered lobbyists. An employee who is not listed on his or her employer’s report submitted under the Lobbying Disclosure Act may communicate orally with federal officials and employees regarding particular projects, applications, or applicants.

As the OMB Interim Guidance notes, the President’s March 20 Memorandum instructed OMB to review its implementation and to forward any recommendations or modifications within 60 days.  Thus, these rules and protocols may be adjusted and further clarified in the near future.

The OMB’s guidance is available here.

Read the FAQ’s attached to the OMB D.