[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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