[Federal Register: March 25, 2009 (Volume 74, Number 56)]
[Presidential Documents]
[Page 12531-12534]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25mr09-200]
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 12531]]
Memorandum of March 20, 2009
Ensuring Responsible Spending of Recovery Act
Funds
Memorandum for the Heads of Executive Departments and
Agencies
My Administration is committed to ensuring that public
funds are expended responsibly and in a transparent
manner. Last month, I signed into law the ``American
Recovery and Reinvestment Act of 2009,'' Public Law
111-5 (the ``Recovery Act'' or ``Act''), an investment
package designed to provide a necessary boost to our
economy in these difficult times and to create jobs,
restore economic growth, and strengthen America's
middle class. The Recovery Act is designed to stimulate
the economy through measures that, among other things,
modernize the Nation's infrastructure, jump start
American energy independence, expand high-quality
educational opportunities, preserve and improve access
to affordable health care, provide middle-class tax
relief, and protect those in greatest need. It is not
intended to fund projects for special interests.
In implementing the Recovery Act, we have undertaken
unprecedented efforts to ensure the responsible
distribution of funds for the Act's purposes and to
provide public transparency and accountability of
expenditures. We must not allow Recovery Act funds to
be distributed on the basis of factors other than the
merits of proposed projects or in response to improper
influence or pressure. We must also empower executive
department and agency officials to exercise their
available discretion and judgment to help ensure that
Recovery Act funds are expended for projects that
further the job creation, economic recovery, and other
purposes of the Recovery Act and are not used for
imprudent projects.
To these ends, I hereby direct that for any further
commitments, obligations, or expenditures of funds
under the Recovery Act, the head of each executive
department or agency shall immediately take all
necessary steps, to the extent consistent with the Act
and other applicable law, to comply with this
memorandum.
Section 1. Ensuring Merit-Based Decisionmaking for
Grants and Other Forms of Federal Financial Assistance
Under the Recovery Act. (a) Executive departments and
agencies shall develop transparent, merit-based
selection criteria that will guide their available
discretion in committing, obligating, or expending
funds under the Recovery Act for grants and other forms
of Federal financial assistance. Such criteria shall be
consistent with legal requirements, may be tailored to
the particular funding activity, and shall be
formulated to ensure that the funding furthers the job
creation, economic recovery, and other purposes of the
Recovery Act. To this end, merit-based selection
criteria shall be designed to support particular
projects, applications, or applicants for funding that
have, to the greatest extent, a demonstrated or
potential ability to: (i) deliver programmatic results;
(ii) achieve economic stimulus by optimizing economic
activity and the number of jobs created or saved in
relation to the Federal dollars obligated; (iii)
achieve long-term public benefits by, for example,
investing in technological advances in science and
health to increase economic efficiency and improve
quality of life; investing in transportation,
environmental protection, and other infrastructure that
will provide long-term economic benefits; fostering
energy independence; or improving educational quality;
and (iv) satisfy the Recovery Act's transparency and
accountability objectives.
[[Page 12532]]
(b) No considerations contained in oral or written
communications from any person or entity concerning
particular projects, applications, or applicants for
funding shall supersede or supplant consideration by
executive departments and agencies of such projects,
applications, or applicants for funding pursuant to
applicable merit-based criteria.
Sec. 2. Avoiding Funding of Imprudent Projects. (a)
Funds under the Recovery Act shall not be committed,
obligated, or expended by any executive department or
agency, and shall not be used by any State or local
governmental or private grantee or awardee, to support
projects of the type described in section 1604 of
Division A of the Recovery Act, which states that
``[n]one of the funds appropriated or otherwise made
available in this Act may be used by any State or local
government, or any private entity, for any casino or
other gambling establishment, aquarium, zoo, golf
course, or swimming pool.''
(b) In exercising their available discretion to
commit, obligate, or expend funds under the Recovery
Act for grants and other forms of Federal financial
assistance, executive departments and agencies, to the
extent permitted by law, shall not approve or otherwise
support funding for projects that are similar to those
described in section 1604 of Division A of the Recovery
Act.
(c) In exercising their available discretion to
commit, obligate, or expend funds under the Recovery
Act for grants and other forms of Federal financial
assistance, executive departments and agencies, to the
extent permitted by law, shall not approve or otherwise
support any project, application, or applicant for
funding that is imprudent or that does not further the
job creation, economic recovery, and other purposes of
the Act. To this end, executive departments and
agencies shall exercise their available discretion to
decline approving or otherwise supporting particular
projects, applications, or applicants for funding
unless the department or agency has affirmatively
determined, in advance, that the project, application,
or applicant has a demonstrated or potential ability
to: (i) deliver programmatic results; (ii) achieve
economic stimulus by optimizing economic activity and
the number of jobs created or saved in relation to the
Federal dollars obligated; (iii) achieve long-term
public benefits by, for example, investing in
technological advances in science and health to
increase economic efficiency and improve quality of
life; investing in transportation, environmental
protection, and other infrastructure that will provide
long-term economic benefits; fostering energy
independence; or improving educational quality; or (iv)
satisfy the Recovery Act's transparency and
accountability objectives.
(d) Where executive departments or agencies lack
discretion under the Recovery Act to refuse funding for
projects similar to those described in section 1604 of
Division A of the Act, or other projects that the
executive department or agency deems imprudent or as
not furthering the job creation, economic recovery, or
other purposes of the Act, the department or agency
shall consult immediately with the Office of Management
and Budget (OMB) about the project and its funding
requirements. Where legally permissible, the department
or agency shall:
(i) delay funding of the project for 30 days, or the longest period
permitted by law if less than 30 days, in order to ensure adequate
opportunity for public scrutiny of the project prior to commitment of
funds; and
(ii) publish a description of the proposed project (or project plan) and
its funding requirements on the agency's recovery website as soon as
practicable before or after commitment, obligation, or expenditure of funds
for the project.
(e) Executive departments and agencies, including
their respective Offices of Inspector General, shall
monitor compliance with the prohibition in section 1604
of Division A of the Recovery Act, referenced in
paragraph (a) above, by contractors, grantees, and
other recipients of Federal financial assistance
(recipients). If a department or agency believes that a
recipient has not complied with section 1604, then the
department or agency shall (i) promptly
[[Page 12533]]
notify the Recovery Accountability and Transparency
Board; and (ii) take appropriate corrective action that
may include, but not be limited to, disallowing or
otherwise recovering improperly spent amounts, imposing
additional requirements on the recipient to ensure
compliance with section 1604 (and other applicable
prohibitions and obligations), initiating a proceeding
for administrative civil penalties, and initiating a
proceeding for suspension and debarment.
Sec. 3. Ensuring Transparency of Registered Lobbyist
Communications. (a) An executive department or agency
official shall not consider the view of a lobbyist
registered under the Lobbying Disclosure Act of 1995, 2
U.S.C. 1601 et seq., concerning particular projects,
applications, or applicants for funding under the
Recovery Act unless such views are in writing.
(b) Upon the scheduling of, and again at the outset
of, any oral communication (in-person or telephonic)
with any person or entity concerning particular
projects, applications, or applicants for funding under
the Recovery Act, an executive department or agency
official shall inquire whether any of the individuals
or parties appearing or communicating concerning such
particular project, application, or applicant is a
lobbyist registered under the Lobbying Disclosure Act
of 1995. If so, the lobbyist may not attend or
participate in the telephonic or in-person contact, but
may submit a communication in writing.
(c) All written communications from a registered
lobbyist concerning the commitment, obligation, or
expenditure of funds under the Recovery Act for
particular projects, applications, or applicants shall
be posted publicly by the receiving agency or
governmental entity on its recovery website within 3
business days after receipt of such communication.
(d) An executive department or agency official may
communicate orally with registered lobbyists concerning
general Recovery Act policy issues; provided, however,
that such oral communications shall not extend to or
touch upon particular projects, applications, or
applicants for funding, and further that the official
must contemporaneously or immediately thereafter
document in writing: (i) the date and time of the
contact on policy issues; (ii) the names of the
registered lobbyists and the official(s) between whom
the contact took place; and (iii) a short description
of the substance of the communication. This writing
must be posted publicly by the executive department or
agency on its recovery website within 3 business days
of the communication.
(e) Upon the scheduling of, and again at the outset
of, any oral communications with any person or entity
concerning general Recovery Act policy issues, an
executive department or agency official shall inquire
whether any of the individuals or parties appearing or
communicating concerning such issues is a lobbyist
registered under the Lobbying Disclosure Act. If so,
the official shall comply with paragraph (d) above.
Sec. 4. General Provisions. (a) The Director of OMB
shall assist and, as appropriate, issue guidance to the
heads of executive departments and agencies to carry
out their responsibilities under this memorandum.
Within 60 days of the date of this memorandum, the
Director of OMB shall review the implementation of this
memorandum by executive departments and agencies and
shall forward to me any recommendations for
modifications or revisions to this memorandum.
(b) This memorandum does not apply to tax-related
provisions in Division B of the Recovery Act.
(c) Nothing in this memorandum shall be construed
to impair or otherwise affect: (i) authority granted by
law or Executive Order to an executive department,
agency, or the head thereof; or (ii) functions of the
Director of OMB relating to budgetary, administrative,
or legislative proposals.
(d) This memorandum shall be implemented consistent
with applicable law and all OMB implementing guidance,
and shall be subject to the availability of
appropriations.
[[Page 12534]]
(e) This memorandum is not intended to, and does
not, create any right or benefit, substantive or
procedural, enforceable at law or in equity by any
party against the United States, its departments,
agencies, or entities, its officers, employees, or
agents, or any other person.
Sec. 5. Publication. The Director of OMB is hereby
authorized and directed to publish this memorandum in
the Federal Register.
(Presidential Sig.)
THE WHITE HOUSE,
Washington, March 20, 2009
[FR Doc. E9-6754
Filed 3-24-09; 8:45 am]
Billing code 3110-01-P