Federal Acquisition Regulation; Implementation of the Anti-Lobbying Statute, 57455-57457 [05-19471]

Agencies

• General Services Administration
• National Aeronautics and Space Administration
• DEPARTMENT OF DEFENSE

[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Rules and Regulations]
[Pages 57455-57457]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-19471]


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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