Revised Guidance on Appointment of Lobbyists to Federal Advisory Committees, Boards, and Commissions, 47482-47483 [2014-19140]

Agencies

• Management and Budget Office

[Federal Register Volume 79, Number 156 (Wednesday, August 13, 2014)]
[Notices]
[Pages 47482-47483]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-19140]


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OFFICE OF MANAGEMENT AND BUDGET


Revised Guidance on Appointment of Lobbyists to Federal Advisory 
Committees, Boards, and Commissions

AGENCY: Office of Management and Budget.

ACTION: Notice of revised guidance.

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SUMMARY: 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 the Office of Management and Budget (OMB) to ``issue 
proposed guidance designed to implement this policy to the full extent 
permitted by law.'' The Presidential Memorandum is available at https://www.whitehouse.gov/the-press-office/presidential-memorandum-lobbyists-agency-boards-and-commissions. OMB posted proposed guidance on November 
2, 2010, and published final guidance on October 5, 2011. See 76 FR 
61756. OMB is now issuing revised guidance regarding the prohibition 
against appointing or re-appointing federally registered lobbyists to 
clarify that the ban applies to persons serving on advisory committees, 
boards, and commissions in their individual capacity and does not apply 
if they are specifically appointed to represent the interests of a 
nongovernmental entity, a recognizable group of persons or 
nongovernmental entities (an industry sector, labor unions, 
environmental groups, etc.), or state or local governments.

DATES: Effective Date: The Revised Guidance is effective immediately.
    Revised Guidance: OMB's Revised Guidance follows in the form of 
questions and answers:
Q 1: Who is affected by the policy directed in the June 18, 2010 
Presidential Memorandum (the ``Memorandum'')?
    A 1: Under the Memorandum and this Revised Guidance, federally 
registered lobbyists may not serve on an advisory committee, board, or 
commission (hereinafter, ``committee'') in an ``individual capacity.'' 
In this Revised Guidance, the term ``individual capacity'' refers to 
individuals who are appointed to committees to exercise their own 
individual best judgment on behalf of the government, such as when they 
are designated as Special Government Employees as defined in 18 U.S.C. 
202. The lobbyist ban does not apply to lobbyists who are appointed in 
a ``representative capacity,'' meaning that they are appointed for the 
express purpose of providing a committee with the views of a 
nongovernmental entity, a recognizable group of persons or 
nongovernmental entities (an industry sector, labor unions, or 
environmental groups, etc.), or state or local government. Appointing 
authorities already are required to clearly designate the role of 
committee members to assure their conformity with the applicable 
conflict of interest rules. See 41 CFR 102-3.105(h); see also 66 FR 
37728, 37744 (July 19, 2001). Agencies should refer to guidance 
provided by the Office of Government Ethics regarding how to 
appropriately distinguish between ``individual capacity'' members 
(e.g., Special Government Employees) and ``representative capacity'' 
members when making committee appointments. See OGE, Federal Advisory 
Committee Appointments No. 05x4 (Aug. 18, 2005).
    The lobbyist policy 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 a committee. 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: https://lobbyingdisclosure.house.gov; LDA Reports, 
U.S. Senate: https://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 in an individual capacity 
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.
Q 2: 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?
    A 2: No, the policy established by the Memorandum applies only to 
individuals who are federally registered lobbyists and does not apply 
to individuals employed by organizations that lobby but are not so 
registered.
Q 3: What entities constitute ``advisory committees and other boards 
and commissions'' under the policy?
    A 3: 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 that which is required or 
permitted by law or regulation, including appointment at the discretion 
of the department or agency. Additionally, the ban applies to 
established committee workgroups and subcommittees, which may or may 
not require formal appointment.
Q 4: Does the policy apply to non-Federal members of delegations to 
international bodies?
    A 4: Yes, delegations organized to present the United States' 
position to international bodies are considered to be committees 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 if the lobbyists 
are to serve in an individual capacity.

[[Page 47483]]

Q 5: Which individuals are considered to be committee ``members'' and 
therefore covered by the policy?
    A 5: The policy applies to all persons who are serving in an 
individual capacity as members of committees, including those who are 
full-time Federal employees and those who have been designated to serve 
as Special Government Employees. Committee members do not include 
individuals who are invited to attend meetings of committees on an ad 
hoc basis.
Q 6: 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?
    A 6: 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, unless the individuals are appointed to 
serve in a representative capacity on behalf of an interest group or 
constituency.
Q 7: 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?
    A 7: The policy does not supersede committee membership 
requirements established by statute or presidential directive. The 
Office of Government Ethics has cautioned that the term ``represent'' 
in a committee's authorizing legislation or in its enabling documents 
does not necessarily mean that the members of that committee are to be 
appointed in a representative capacity rather than an individual 
capacity. See OGE, Federal Advisory Committee Appointments No. 05x4 
(Aug. 18, 2005). The term ``represent'' frequently is used in a more 
generic sense with regard to members (e.g., to describe the kinds of 
expertise, knowledge, or employment background that should be included 
in a committee's members) rather than for the express purpose of 
classifying a member's role on the committee. Committee charters 
should, wherever possible and at the earliest possible time, be amended 
to conform to the policy, consistent with statutes and presidential 
directives.
Q 8: 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 committee?
    A 8: Yes, the policy prohibits the appointment of federally 
registered lobbyists to a subcommittee or any other subgroup that 
performs preparatory work for a parent committee if the lobbyists are 
appointed in an individual capacity, whether or not the subcommittee 
members are appointed in the same manner as are members of the parent 
committee. The goal of the Memorandum is to restrict the undue 
influence of lobbyists on Federal government through their membership 
on committees, which would include subcommittees and other bodies 
regardless of whether those positions require formal appointment.
Q 9: Does this policy also restrict the participation of lobbyists as 
witnesses or experts who appear before or submit advice or materials to 
committees?
    A 9: No, lobbyists may still appear before or otherwise communicate 
with a committee to provide testimony, information, or input in the 
same manner as non-lobbyists who are not members of or appointees to 
the advisory committee, 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, committees 
should make reasonable efforts to ensure that they hear a balance of 
perspectives and are not gathering information or advice exclusively 
from registered lobbyists.
Q 10: What should an agency do if it appoints to a committee an 
individual who is not a federally registered lobbyist at the time of 
appointment, but who, after appointment, becomes a federally registered 
lobbyist?
    A 10: Agencies should make clear to all committee members that 
conducting activities that would require them to be federally 
registered lobbyists after appointment to serve on a committee in an 
individual capacity would necessitate their resignation or removal from 
committee membership. The appointing officers or their delegates shall 
ensure, at least annually, that committee members serving in an 
individual capacity 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 committee in an individual capacity, a 
member subsequently has become a federally registered lobbyist or has 
engaged in activities which require registration, the agency shall 
request the resignation of the member.
Q 11: Will there be any waivers available for circumstances in which a 
federally registered lobbyist possesses unique or exceptional value to 
a committee?
    A 11: The policy makes no provisions for waivers, and waivers will 
not be permitted under this policy.

Geovette E. Washington,
General Counsel, Office of Management and Budget.
[FR Doc. 2014-19140 Filed 8-12-14; 8:45 am]
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