[Federal Register Volume 76, Number 193 (Wednesday, October 5, 2011)]
[Notices]
[Pages 61756-61757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25736]
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OFFICE OF MANAGEMENT AND BUDGET
Final Guidance on Appointment of Lobbyists to Federal Boards and
Commissions
AGENCY: Office of Management and Budget.
ACTION: Notice of Final Guidance.
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SUMMARY: The Office of Management and Budget (OMB) is issuing final
guidance to Executive Departments and agencies concerning the
appointment of federally registered lobbyists to boards and
commissions. On June 18, 2010, President Obama issued ``Lobbyists on
Agency Boards and Commissions,'' a memorandum directing agencies and
departments in the Executive Branch not to appoint or re-appoint
federally registered lobbyists to advisory committees and other boards
and commissions. The Presidential Memorandum further directed the
Director of OMB to ``issue proposed guidance to implement this policy
to the full extent permitted by law.'' Proposed guidance was posted on
November 2, 2010 and the final guidance was formulated after review of
the comments received to the proposed guidance. The Presidential
Memorandum is available at http://www.whitehouse.gov/the-press-office/presidential-memorandum-lobbyists-agency-boards-and-commissions.
DATES: Effective Date: The final guidance will be effective 30 days
from the date of issuance in the Federal Register.
A. Final Guidance
On June 18, 2010, President Obama signed a Presidential Memorandum
directing agencies in the Executive Branch not to appoint or re-appoint
federally registered lobbyists to advisory committees and other boards
and commissions. That memorandum directed the Office of Management and
Budget to propose implementing guidance, which follows in the form of
questions and answers:
Q1: Who is affected by the policy directed in the June 18, 2010
Presidential Memorandum (the ``Memorandum'')?
A1: This policy applies to federally registered lobbyists and
does not apply to individuals who are registered as lobbyists only
at the state level. A lobbyist for purposes of the Memorandum is any
individual who is subject to the registration and reporting
requirements of the Lobbying Disclosure Act of 1995 (LDA), as
amended, 2 U.S.C. 1605, at the time of appointment or reappointment
to an advisory board or commission. Agencies may rely on appropriate
searches of databases maintained by the House of Representatives and
the Senate in identifying federally registered lobbyists.\1\
Alternatively, agencies may consider including in their recruitment
process for appointing members a way of obtaining written
certification from the individual that he or she is not a federally
registered lobbyist.
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\1\ Lobbying Disclosure, Office of the Clerk, U.S. House of
Representatives: http://lobbyingdisclosure.house.gov; LDA Reports,
U.S. Senate: http://www.senate.gov/legislative/Public_Disclosure/LDA_reports.htm.
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Any individual who previously served as a federally registered
lobbyist may be appointed or re-appointed only if he or she has
either filed a bona fide de-registration or has been de-listed by
his or her employer as an active lobbyist reflecting the actual
cessation of lobbying activities or if they have not appeared on a
quarterly lobbying report for three consecutive quarters as a result
of their actual cessation of lobbying activities.
Q2: Does the policy restrict the appointment of individuals who
are themselves not federally registered lobbyists but are employed
by organizations that engage in lobbying activities?
A2: No, the policy established by the Memorandum applies only to
federally registered lobbyists and does not apply to non-lobbyists
employed by organizations that lobby.
Q3: What entities constitute ``boards and commissions'' under
the policy?
A3: The policy directed in the Memorandum applies to any
committee, board, commission, council, delegation, conference,
panel, task force, or other similar group (or subgroup) created by
the President, the Congress, or an Executive Branch department or
agency to serve a specific function to which appointment is
required, regardless of whether it is subject to the Federal
Advisory Committee Act, as amended (5 U.S.C. App.). Appointment
includes appointment required or permitted by law or regulation,
including appointment at the discretion of the department or agency.
Additionally, the ban also applies to established workgroups and
subcommittees for boards and commissions, which may or may not
require formal appointment.
Q4: Does the policy apply to non-Federal members of delegations
to international bodies?
A4: Yes, delegations organized to present the United States'
position to international bodies are considered to be boards or
commissions for the purposes of this policy, regardless of whether
they constitute advisory committees for purposes of the Federal
Advisory Committee Act, as amended (5 U.S.C. App.). Therefore,
agencies should not appoint federally registered lobbyists to these
delegations.
Q5: Which ``members'' of those boards and commissions are
covered by the policy?
A5: The policy applies to all members of boards and commissions
who are not full-time Federal employees, including both those who
have been designated to serve in a representative capacity on behalf
of an interested group or constituency and those who have been
designated to serve as Special Government Employees, and who are
appointed by the President or an Executive Branch agency or
official. However, the policy is not intended to be inconsistent
with provisions of Federal law or international agreements.
Accordingly, even where provisions exist that allow private
organizations to designate their representatives or require their
consultation on appointments, the appointing authority should, to
the extent permissible by law, require such organizations to agree
to the appointment of individuals who are not federally registered
lobbyists.
Members of boards and commissions do not include individuals who
are invited to attend meetings of boards or commissions on an ad hoc
basis.
Q6: How does the policy apply if a statute or presidential
directive provides for appointments to be made by State Governors or
by members of Congress?
A6: While the discretion of appointing authorities outside of
the Executive Branch will be respected, those appointing authorities
should be encouraged to appoint individuals who are not federally
registered lobbyists whenever possible.
Q7: How does the policy apply when a statute or presidential
directive requires the appointment of a specific representative from
an organization and that representative is a federally registered
lobbyist?
A7: The policy does not supersede board or commission membership
requirements established by statute or presidential directive.
However, committee charters in effect at the time of the new policy
that require a lobbyist to be appointed as a member of the committee
should, wherever possible and at the earliest possible time, be
amended to conform to the policy, consistent with statutes and
presidential directives.
Q8: How will the guidance affect lobbyists who were serving on
boards and commissions at the time the policy was established?
A8: The prohibition on the appointment of federally registered
lobbyists to boards and commissions established by the Memorandum
applies to appointments and re-appointments made after June 18,
2010. In order to ensure that there is no disruption of ongoing work
of boards and commissions, federally registered lobbyists who
already were serving on boards and commissions on that date may
serve out the remainder of their terms, but may not be reappointed
so long as they remain registered lobbyists.
Q9: Does this policy also restrict the participation of
lobbyists as members of a subcommittee or other work group that
performs preparatory work for its parent board or commission?
A9: Yes, the policy does not permit the appointment of federally
registered lobbyists to a subcommittee or any other subgroup that
performs preparatory work for a parent board or commission, whether
or not its members
[[Page 61757]]
are appointed in the same manner as are members to the parent
committee. The goal of the Memorandum is to restrict the undue
influence of lobbyists on Federal government through their
membership on boards and commissions, which would include
subcommittees and other bodies regardless of whether those positions
require formal appointment.
Q10: Does this policy also restrict the participation of
lobbyists as witnesses or experts who appear before boards and
commissions or submit advice or materials to them?
A10: No, lobbyists may still appear before or otherwise
communicate with a board or commission to provide testimony,
information, or input in the same manner as non-lobbyists who are
not members of or appointees to the board, commission, or any of its
subgroups, to the extent permitted by law and regulation. The
purpose of the policy is to prevent lobbyists from being in
privileged positions in government. It is not designed to prevent
lobbyists or others from petitioning their government. When
lobbyists do testify, boards and commissions should make reasonable
efforts to ensure that they hear a balance of perspectives and are
not gathering information or advice exclusively from registered
lobbyists.
Q11: What should an agency do if it appoints to a board or
commission an individual who is not a federally registered lobbyist
at the time of appointment, but who, after appointment, becomes a
federally registered lobbyist?
A11: Agencies should make clear to all board and commission
members, whether appointed as representatives or Special Government
Employees, that their conduct of activities that would require them
to be federally registered lobbyists after appointment would
necessitate their resignation or removal from membership on boards
or commissions. The appointing officers or their delegates shall
ensure, at least annually, that board or commission members are not
federally registered lobbyists and, upon reappointment of the
members, either shall require each member to certify that he or she
is not a federally registered lobbyist or shall check the Federal
lobbyist databases to confirm that each member has not registered as
a lobbyist since appointment. If an agency finds that, following
appointment to a board or commission, a member subsequently has
become a federally registered lobbyist or has engaged in activities
that would require registration, the agency shall request the
resignation of the member.
Q12: Will there be any waivers available for circumstances in
which a federally registered lobbyist possesses unique or
exceptional value to a board or commission?
A12: The policy makes no provisions for waivers, and waivers
will not be permitted under this policy.
Office of Management and Budget
Boris Bershteyn,
General Counsel, Office of Management and Budget.
[FR Doc. 2011-25736 Filed 10-4-11; 8:45 am]
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