[Federal Register Volume 74, Number 56 (Wednesday, March 25, 2009)]
[Presidential Documents]
[Pages 12531-12534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6754]




                        Presidential Documents 



Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / 
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.
                <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
                
                    (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