2011-25736. Final Guidance on Appointment of Lobbyists to Federal Boards and Commissions

AGENCY:

Office of Management and Budget.

ACTION:

Notice of Final Guidance.

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.

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 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.

Footnotes

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.