[Federal Register: September 30, 2005 (Volume 70, Number 189)]
[Rules and Regulations]
[Page 57455-57457]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30se05-41]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 3 and 52
[FAC 2005-06; FAR Case 1989-093; Item IV]
RIN 9000-AD76
Federal Acquisition Regulation; Implementation of the Anti-
Lobbying Statute
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Department of Defense (DoD), General Services
Administration (GSA), and National Aeronautics and Space Administration
(NASA) have agreed to convert the interim rule published in the Federal
Register at 55 FR 3190, January 30, 1990, to a final rule with several
minor changes. The interim rule amended the Federal Acquisition
Regulation (FAR) to implement section 319 of the Department of the
Interior and Related Agencies Appropriations Act, Public Law 101-121,
which added a new section 1352 to title 31 U.S.C. entitled ``Limitation
on use of appropriated funds to influence certain Federal contracting
and financial transactions.'' Section 319 generally prohibits
recipients of Federal contracts, grants, and loans from using
appropriated funds for lobbying the executive or legislative branches
of the Federal Government in connection with a specific contract,
grant, or loan. Section 319 also requires that each person who requests
or receives a Federal contract, grant, or cooperative agreement in
excess of $100,000, or a loan, or Federal commitment to insure or
guarantee a loan, in excess of $150,000 must disclose lobbying with
other than appropriated funds.
DATES: Effective Date: September 30, 2005.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Mr. Ernest Woodson, Procurement
Analyst, at (202) 501-3775. Please cite FAC 2005-06, FAR case 1989-093.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published an interim rule in the Federal
Register at 55 FR 3190, January 30, 1990. The interim rule amended the
Federal Acquisition Regulation to implement Section 319 of the
Department of the Interior and Related Agencies Appropriations Act,
Public Law 101-121, which added a new section 1352 to title 31 U.S.C.
entitled ``Limitation on use of appropriated funds to influence certain
Federal contracting and financial transactions.'' Section 319 prohibits
the recipients of Federal contracts, grants, loans and cooperative
agreements from using appropriated funds for lobbying the executive or
legislative branches of the Federal Government in connection with a
specific contract, grant, loan or cooperative agreement. It also
requires that each person who requests or receives a Federal contract,
grant, or cooperative agreement, in excess of $100,000, or a loan, or
Federal commitment to insure or guarantee a loan, in excess of
$150,000, must disclose lobbying with other than appropriated funds.
Section 1352 required the Office of Management and Budget (OMB) to
issue guidance for agency implementation of, and compliance with, its
requirements, which OMB published on December 20, 1989 (54 FR 52306).
After the interim FAR rule was published in the Federal Register at 55
FR 3190, January 30, 1990, OMB published a clarification notice to
their earlier guidance on June 15, 1990 (55 FR 24540).
After consideration of the public comments that were received, DoD,
GSA, and NASA have agreed to convert the interim rule to a final rule
with minor changes as discussed in Section B.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Public Comments
Ninety-four respondents submitted comments. Twenty of the
respondents agreed or disagreed with the interim rule without offering
suggested changes. The remaining respondents recommended revisions to
clarify definitions and revise terminology; clarify or add to the list
of exceptions to
[[Page 57456]]
the rule; clarify the cost principles; revise the civil penalty
coverage; and revise the OMB guidance (outside the scope of the case).
DoD, GSA, and NASA considered all comments and concluded that the
interim rule should be converted to final with the minor changes
described below. For the other recommended revisions in the public
comments, DoD, GSA, and NASA have not experienced the issues during the
rule's 15-year effective period that the recommended clarifications and
revisions were intended to address. However, in taking the
administrative action of converting the interim rule to final, DoD,
GSA, and NASA recognize the need for additional analysis to determine
if further FAR changes are required on the subject of Lobbying
restrictions based on activities in this area subsequent to publication
of the interim rule. DoD, GSA, and NASA believe that this end is best
served by converting to final the 1990 interim rule to provide a stable
regulatory baseline against which the new analysis will be conducted.
Accordingly, the following changes are made to the interim rule:
1. FAR 3.802(c)(2)(v) is redesignated as FAR 3.802(d), and
paragraph (b)(3)(ii)(E) of FAR clause 52.203-12 is redesignated as
paragraph (b)(4) of the clause. These paragraphs specify when the
reporting requirements of FAR 3.803 do not apply and were incorrectly
numbered within the FAR section and clause.
2. In accordance with the OMB clarification of June 15, 1990,
paragraph (b)(1) of FAR clause 52.203-11 is revised to indicate that
the certification requirement applies only to the award of the instant
contract and not ``any'' contract, grant, loan, or cooperative
agreement (and any extensions, continuations, renewals, amendments or
modifications thereof).
3. Paragraphs (b)(3)(i)(E) and (b)(3)(ii)(D) of FAR clause 52.203-
12 are revised to clarify the activities that are permitted under the
clause. The interim rule language did not correctly cite all the
applicable cross references and was unintentionally restrictive and
contradictory.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to
this final rule. The Department of Defense (DoD), General Services
Administration (GSA), and National Aeronautics and Space Administration
(NASA) prepared a Final Regulatory Flexibility Analysis (FRFA), and it
is summarized as follows:
This rule finalizes the interim rule with minor corrections in
order to implement 31 U.S.C. 1352 entitled ``Limitation on use of
appropriated funds to influence certain Federal contracting and
financial transactions,'' also known as the Byrd Amendment. Section
1352 prohibits recipients of Federal contracts from using
appropriated funds for lobbying the Executive or Legislative
branches of the Federal Government in connection with that contract,
and requires a bidder or offeror for a Federal contract to disclose
certain lobbying activities. Section 1352 required the Office of
Management and Budget (OMB) to issue guidance for agency
implementation of, and compliance with, its requirements. OMB
published guidance on December 20, 1989 (54 FR 52306), and a
clarification notice on June 15, 1990 (55 FR 24540). This final rule
implements the requirements of 31 U.S.C. 1352 and the OMB guidance.
No comments were received in response to the Initial Regulatory
Flexibility Analysis.
The certification requirements of the final rule will apply to
all small entities which seek contracts over $100,000 with the
Federal Government. The Federal Government awards approximately
90,000 contracts per year to approximately 18,000 small entities.
The disclosure requirements of the rule will only apply to small
entities on whose behalf a registered lobbyist has made lobbying
contacts with respect to a particular Federal contract. Based on OMB
Control No. 0348-0046, Disclosure of Lobbying Activities for SF LLL,
which is the standard disclosure form for lobbying paid for with
non-Federal funds as required by the Byrd Amendment, 300 responses
were received annually from states, local governments, non-profit
organizations, individuals, and businesses. The number of such small
entities is estimated to be near zero, based on the small number of
lobbyists reported to have registered under the Byrd Amendment and
the improbability that such lobbyist represent small entities.
To the extent that the statute required that OMB issue guidance
regarding compliance with the Byrd Amendment, the reporting and
recordkeeping requirements implemented in this rule are considered
requirements of the OMB guidance. In this light, there are not
additional reporting, recordkeeping, or other compliance
requirements imposed by this final rule.
Some alternatives were suggested in public comments on this rule
which, the commenters thought would mitigate the economic impact of
the rule on small entities. These alternatives are: To exempt
procurements of commercial items from the reporting requirements of
the rule; to exempt subcontractors from the reporting requirements
of the rule; or to permit use of appropriated funds for lobbying
contacts by bona fide agents and marketing representatives of an
entity. These three alternatives were rejected as inconsistent with
the statute. Thus, the final rule, as written, minimizes the
economic impact on small entities consistent with the stated
objectives of applicable statutes and OMB guidance.
Interested parties may obtain a copy of the FRFA from the FAR
Secretariat. The FAR Secretariat has submitted a copy of the FRFA to
the Chief Counsel for Advocacy of the Small Business Administration.
D. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the FAR do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Number 0348-
0046. The requirements of this Act were addressed by the Office of
Management and Budget (OMB) in the development of its interim final
guidance, published in the Federal Register on December 20, 1989 (54 FR
52306), implementing Section 319 of the Department of the Interior and
Related Agencies Appropriations Act, Public Law 101-121, which added a
new section 1352 to title 31 U.S.C. entitled ``Limitation on use of
appropriated funds to influence certain Federal contracting and
financial transactions.''
List of Subjects in 48 CFR Parts 3 and 52
Government procurement.
Dated: September 22, 2005.
Julia B. Wise,
Director,Contract Policy Division.
Interim Rule Adopted as Final with Changes
0
Accordingly, DoD, GSA, and NASA adopt the interim rule amending 48 CFR
parts 3 and 52, which was published at 55 FR 3190, January 30, 1990 (as
amended by other final FAR rules subsequent to its publication), as a
final rule with the following changes:
0
1. The authority citation for 48 CFR parts 3 and 52 continues to read
as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
3.802 [Amended]
0
2. Amend section 3.802 by redesignating paragraph (c)(2)(v) as
paragraph (d).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Amend section 52.203-11 by revising the date of the clause and
paragraph (b)(1) of the clause to read as follows:
52.203-11 Certification and Disclosure Regarding Payments to Influence
Certain Federal Transactions.
* * * * *
[[Page 57457]]
CERTIFICATION AND DISCLOSURE REGARDING PAYMENTS TO INFLUENCE CERTAIN
FEDERAL TRANSACTIONS (SEP 2005)
* * * * *
(b) * * *
(1) No Federal appropriated funds have been paid or will be paid
to any person for influencing or attempting to influence an officer
or employee of any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress on his
or her behalf in connection with the awarding of this contract;
* * * * *
0
4. Amend section 52.203-12 by revising the date of the clause and
paragraphs (b)(3)(i)(E) and (b)(3)(ii)(D) of the clause, and
redesignating paragraph (b)(3)(ii)(E) as paragraph (b)(4). The revised
text reads as follows:
52.203-12 Limitation on Payments to Influence Certain Federal
Transactions.
* * * * *
LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (SEP
2005)
* * * * *
(b) * * *
(3) * * *
(i) * * *
(E) Only those agency and legislative liaison activities
expressly authorized by paragraph (b)(3)(i) of this clause are
permitted under this clause.
(ii) * * *
(D) Only those professional and technical services expressly
authorized by paragraph (b)(3)(ii) of this clause are permitted
under this clause.
* * * * *
[FR Doc. 05-19471 Filed 9-29-05; 8:45 am]
BILLING CODE 6820-EP-S