U.S. Department of Housing and Urban Development

H O U S I N G

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Special Attention of: Notice H 93-43 (HUD)

REGIONAL ADMINISTRATORS, REGIONAL Issued: 6/21/93

DIRECTORS OF HOUSING, FIELD OFFICE Expires: 6/30/94

MANAGERS, HOUSING MANAGEMENT DIVISION
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DIRECTORS, AND HOUSING DEVELOPMENT Cross References:

DIVISION DIRECTORS

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SUBJECT: \"Byrd Amendment\" \-- Limitation on Payments made to

Influence Certain Federal Financial and Contracting

Transactions

1\. PURPOSE. This Notice applies to programs administered by

the Office of Housing and supplements Ethics Letter 91-5 and

OMB\'s Interim Final Rule (See Attachment I) of February 26,

1990 (55 FR 6736) and its supplementing Notice 55 FR 24540

(See Attachment II) of June 15, 1990 (see 24 CFR Part 87 for

HUD\'s restrictions on lobbying). These Directives require

compliance with the restrictions on lobbying called for by

Section 319 (referred to as the Byrd Amendment) of Public

Law 101-121. The Byrd Amendment prohibits all applicants

and recipients of Federal contracts, grants, loans and

cooperative agreements from using Federally appropriated

funds for lobbying; and it requires disclosure of lobbying

with other than Federally appropriated funds by each person

who receives or requests financial assistance in the form of

a contract, grant, loan, cooperative agreement or commitment

for loan insurance or loan guaranty which exceeds the

minimum dollar thresholds.

2\. APPLICABILITY. The Byrd amendment and the guidance in this

Notice apply to applicants, recipients, contractors and

subcontractors of contracts, grants, or cooperative

agreements exceeding \$100,000 as well as loans or

commitments to insure a loan exceeding \$150,000 as follows:

a\. Multifamily Mortgage Insurance Programs. All

multifamily insurance, property management and

disposition programs pursuant to Title II of the

National Housing Act. (Property Disposition

contracting procurements are subject to Byrd Amendment

requirements, as implemented through the Federal

Acquisition Regulation (FAR).)

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HOAM: Distribution:
W-3-1,W-2(H),W-3(H)(FHEO)(ZAS)(OGC)(PD&R),W-4(H),R-1,

R-2,R-3,R-3-1(H)(RC),R-3-2,R-3-3,R-6,R-6-1,R-7,R-7-1,

R-7-2,R-8,R-8-1

Previous Editions Are Obsolete HUD 21B(3-80)

GPO 871 902

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2

b\. Assisted Housing Programs. Rent Supplement,

Section 236 (including non-insured Section 236) and

Flexible Subsidy, Rental Assistance Payments, Section 8

(including Loan Management Set-aside, Property

Disposition Set-aside, State Agency Set-aside, New

Construction Set-aside for Section 515 Rural Rental

Projects, Section 811, Special Purpose Grants,

Section 202.

c\. Other Housing Programs Section 106(b) loans, Hope for

Elderly Independence Program, Congregate Housing

Services Program and Housing Counseling Program with

single family mortgage insurance.

Section 319 of the 1993 Department of the Interior and

Related Agencies Appropriations Act changed the Byrd Amendment to

say that insured single family mortgages which do not exceed

\$150,000 or the single family mortgage limit for affected

programs, whichever is greater are exempt from the Byrd

requirements.

FHA-insured single family mortgages are exempt from the Byrd

Amendment reporting requirements, and lenders and borrowers no

longer have to execute any of the certifications required by

Mortgagee Letters 93-5 and 90-31 in connection with FHA-insured

single family mortgages.

3\. REQUIRED REPORTING. The OMB regulations require a

certification that Federally appropriated funds are not

being or have not been used in violation of Section 319 and

that disclosure will be made of payments for lobbying with

other than Federally appropriated funds. This certification

is to be submitted by applicants as part of the application

process for the \"covered Federal actions\" described above.

Civil penalties from \$10,000 to \$100,000 can be assessed for

noncompliance.

Standard certification information is included in paragraph

II A 2 of attached Ethics Letter 91-5.

Please note that the certification/statement and disclosure

form must be submitted with each application, if required

above. In addition, at the end of each quarter, a

disclosure form shall be filed when an event requires

disclosure or when previously filed disclosure information

is inaccurate. It is up to the applicant to determine

whether it is to be submitted.

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3\.

4\. REQUIRED ACTION. Subcontractors and sub-recipients are also

subject to these requirements. They must submit their

certifications and disclosure forms prior to subcontract

execution or receipt of funds to the next higher tier above

them. All forms must be submitted up from tier to tier

until they are submitted to HUD.

5\. ONGOING FIELD OFFICE RESPONSIBILITIES

a\. The Field Office must review each certification which

it receives and determine that it is complete prior to

the award of loan or grant funds or the issuance of

commitments to insure loans. Each certification

submitted to the Field Office must be kept in the

project or program file.

b\. The Field Office shall send the original of any

disclosure forms (Standard Form - LLL) received

directly and immediately to the Office of Ethics in

Headquarters and retain a copy in the application,

project or program file.

c\. It must be emphasized that even if the loan or grant

amounts are not large enough to trigger the

certification and disclosure requirements, the

prohibitions against the use of Federally appropriated

funds for influencing or attempting to influence the

actions of Federal officials apply. Accordingly, Field

Office staff must be alert to possible violations,

which must be reported to the Office of Ethics.

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Assistant Secretary for Housing

\- Federal Housing Commissioner

Attachments

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U.S. Department of Housing and Urban Development

Washington, D.C. 20410-3000

December 24, 1991

OFFICE OF THE ASSISTANT SECRETARY

FOR ADMINISTRATION

Ethics Letter 91-5

Special Attention of:

PRINCIPAL STAFF

ALL REGIONAL ADMINISTRATORS

ALL FIELD OFFICE MANAGERS

Subject: \"Byrd Amendment\" Regarding the Limitation on Payments

Made to Influence Certain Federal Contracting and

Financial Transactions

PART I - INTRODUCTION

A. PURPOSE. The purpose of this Letter is to bring to your

attention and clarify certain collection and monitoring

responsibilities of Headquarters\' Program Offices and the

Regional and Field Offices in implementing the requirements

that pertain to the Byrd Amendment.

B. BACKGROUND.

1\. The Byrd Amendment (Section 319 of the Department of

Interior and Related Agencies Appropriations Act for

Fiscal Year 1990, Pub. L. 101-121), was signed into law

by President Bush on October 23, 1989, and became

effective on December 23, 1989.

2\. The Office of Management and Budget (OMB) published an

\"Interim Final Rule\" on the Byrd Amendment (see

Attachment I) on February 26, 1990 (55 FR 6736). The

Interim Final Rule was supplemented by a Notice

published by OMB at 55 FR 24540 (see Attachment II) on

June 15, 1990.

3\. The Interim Final Rule pertains to applicants

requesting or receiving a Federal contract, grant,

loan, cooperative agreement, loan guarantee or loan

insurance. Indian tribes and tribal organizations are

excluded from coverage with respect to expenditures

permitted by other Federal law. (Therefore, Indian

Housing Authorities (IHAs) established by an Indian

tribe as a result of the exercise of their sovereign

power are excluded from coverage, but IHAs established

under State law are not excluded from coverage.) The

Rule also governs certain post-award actions including

the extension, continuation, renewal, amendment, or

modification of contracts, grants, loans, or

cooperative agreements.

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AE: Distribution: W-1, W-2, W-3, W-3-1, W-4, R-1, R-3-1, R-6, R-7, R-8,

R-9, 0-16

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PART II \-- OVERVIEW OF SUBSTANTIVE REQUIREMENTS

The Byrd Amendment imposes requirements on applicants and

recipients of Federal assistance who use either of the following

sources of funds to influence Federal decision makers:

o Funds appropriated to Federal agencies by Congress.

o Other than appropriated funds from non-Federal sources.

A summary of the requirements follows. You should refer to

the rule (see Attachment I) for a detailed description of the

requirements.

A. APPROPRIATED FUNDS.

1\. Basic Prohibition. No appropriated funds may be used

by a person who receives a Federal contract, grant,

loan, or cooperative agreement to pay for influencing

or attempting to influence Executive or Legislative

branch personnel in connection with the award of any

Federal contract, the making of any Federal grant or

loan, or the entering into of any cooperative

agreement. This prohibition also applies to payments

made to influence a Federal official in connection with

the extension, continuation, renewal, amendment or

modification of any contract, grant, loan or

cooperative agreement.

2\. Required Reporting. Any person who requests or

receives a Federal contract, grant, or cooperative

agreement exceeding \$100,000, or a Federal loan

exceeding \$150,000, must file a certification (see

Attachment I, page 6741) that the person has not made,

and will not make, any prohibited payment from

appropriated funds. Additionally, the applicant or

recipient must certify that a disclosure statement (see

Attachment I, page 6743) will be filed, as described in

subparagraph II.B.2.c, below, if a payment is made from

other than appropriated funds to influence, or attempt

to influence, Federal personnel. The certification

must be filed at the time the application or request to

enter into an agreement is submitted. If it is not

filed at the time of application, it must be filed

prior to receipt of the award or assistance involved.

Submission of the certification is a condition for

receipt of the assistance involved.

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Office of Ethics Page 2 Ethics Letter 91-5

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3\. Exceptions. The prohibition on the use of appropriated

funds does not apply to:

a\. Agency and Legislative Liaison Activities and

Agency Requirements. Appropriated funds may be

used to pay reasonable compensation to an officer

or employee of a person requesting or receiving a

contract, grant, loan, or cooperative agreement,

if the payment is for:

\(1\) Agency and legislative liaison activities not

directly related to the transaction or the

post-award action involved; or

\(2\) Providing any information specifically

requested by the Department.

b\. Professional and Technical Services. Appropriated

funds also may be used to pay:

\(1\) Reasonable compensation to an officer or

employee of a person requesting or receiving

a contract, grant, loan, or cooperative

agreement, or a post-award action, if the

payment is for professional or technical

services rendered directly in the

preparation, submission, or negotiation of

any bid, proposal, or application for the

transaction involved, or for meeting

requirements imposed by or pursuant to law as

a condition for receipt of such assistance.

\(2\) Reasonable compensation to a person, not

employed by the person requesting or

receiving a contract, grant, loan, or

cooperative agreement, or a post-award

action, if the payment is for professional or

technical services rendered directly in the

preparation, submission, or negotiation of

any bid, proposal, or application for the

transaction involved, or for meeting

requirements imposed by or pursuant to law as

a condition for receipt of the assistance.

c\. No disclosure forms are required to be filed with

respect to payments which are permissible pursuant

to the above exceptions.

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Office of Ethics Page 3 Ethics Letter 91-5

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B. OTHER THAN APPROPRIATED FUNDS

1\. Basic Requirement. The Byrd Amendment does not

prohibit the use of other than appropriated funds to

influence, or attempt to influence, a Federal official

in connection with a Federal contract, grant, loan,

cooperative agreement, loan guarantee or loan

insurance, or a post-award action. If other than

appropriated funds are used for such purposes, each

person requesting or receiving a contract, grant, loan,

cooperative agreement, loan guarantee, or loan

insurance must file a disclosure form with the

Department detailing the lobbying activities. Also,

any person who requests or receives a commitment for a

loan guarantee or loan insurance must submit a

statement whether he or she has made any payments to

influence a Federal official in connection with that

loan guarantee or insurance.

2\. Required Reporting.

a\. Certification. Each person who requests or

receives a contract, grant or cooperative

agreement exceeding \$100,000 or a commitment to

guarantee or insure a loan exceeding \$150,000 must

file the certification described at paragraph

II.A.2., above. The certification must be filed

at the time the application or request to enter an

agreement is submitted. If it is not filed at the

time of application, it must be filed before

receiving the assistance involved.

b\. Statements for Loan Guarantees and Loan Insurance.

Each person who requests or receives from the

Department a commitment to guarantee or insure a

loan exceeding \$150,000 must file a statement that

the person will file a disclosure form (SF-LLL) if

the person has made, or will make, any payment to

influence, or attempt to influence, any Executive

or Legislative branch personnel in connection with

that loan insurance or guarantee. For single

family insurance, each application that involves a

mortgage amount that exceeds the minimum dollar

threshold, a statement and, if necessary, a

disclosure form should be filed. The statement

must be filed at the time the request for

guarantee or insurance is made. If it is not

filed at the time of application, it must be filed

before receiving the commitment.

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Office of Ethics Page 4 Ethics Letter 91-5

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c\. Disclosure Form (SF-LLL). Every person who

requests or receives a Federal contract, grant, or

cooperative agreement exceeding \$100,000, or a

Federal loan, loan guarantee, or loan insurance

exceeding \$150,000 must disclose any payments

made, or agreement to make any payment, from other

than appropriated funds for the purpose of

influencing, or attempting to influence, any

Executive or Legislative branch personnel in

connection with the contract, grant, cooperative

agreement, loan, loan insurance, or loan

guarantee. These disclosures must be made on Form

SF-LLL.

It is the responsibility of the applicant to

determine whether a Form SF-LLL is required to be

submitted to the Department. There are two

requirements:

\(1\) The form must be submitted to the Department

at the time of application or request. If it

is not filed at the time of request, it must

be filed prior to award or agreement.

\(2\) A new disclosure form must be filed at the

end of each calendar quarter in which a

payment, or an agreement to make a payment,

is made which would have otherwise required

reporting at the time of application.

Moreover, if an event occurs during the

calendar quarter which materially affects the

accuracy of information reported on a

disclosure form previously submitted, the

submitter must file a new disclosure form.

Events which \"materially affect\" the accuracy

of information already reported include:

\-- A cumulative increase of \$25,000 or more

in the amount paid or expected to be

paid for influencing or attempting to

influence a covered Federal action;

\-- A change in the person(s) influencing or

attempting to influence; or

\-- A change in the Federal official(s)

contacted to influence or attempt to

influence a covered Federal action.

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Office of Ethics Page 5 Ethics Letter 91-5

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3\. Exceptions. The disclosure requirements do not apply

to the following:

a\. No disclosure form (SF-LLL) is required to be

filed in connection with professional or technical

services rendered directly in the preparation,

submission, or negotiation of a commitment to

insure or guarantee a loan.

b\. No disclosure form (SF-LLL) is required to be

filed with respect to payments of reasonable

compensation made to regularly employed officers

and employees of the person requesting or

receiving the assistance.

C. SUBCONTRACTORS AND SUBRECIPIENTS

1\. Filing of Certifications and Disclosure Forms.

Subcontractors and subrecipients are subject to the

requirements of the Byrd Amendment concerning the

filing of certifications and disclosure forms in the

case of:

a\. A subcontract exceeding \$100,000 at any tier under

a Federal contract;

b\. A subgrant, contract or subcontract exceeding

\$100,000 at any tier under a Federal grant;

c\. A contract or subcontract exceeding \$100,000 at

any tier under a Federal cooperative agreement; or

d\. A contract or subcontract exceeding \$100,000 at

any tier under a Federal loan exceeding \$150,000.

2\. Reporting by Subcontractors and Subrecipients.

Certification and disclosure forms required to be filed

by subcontractors and subrecipients must be submitted

to the next tier above the submitter. All disclosure

forms must be forwarded from tier to tier until they

are submitted to the Department. Certification forms

are to be retained by the tier to whom they are

submitted.

D. PENALTIES

1\. Any person who makes a prohibited expenditure is

subject to a civil penalty of not less than \$10,000 and

not more than \$100,000 for each failure.

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Office of Ethics Page 6 Ethics Letter 91-5

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2\. Any person who fails to submit or amend the disclosure

form, when required, is subject to a civil penalty of

not less than \$10,000 and not more than \$100,000 for

each failure.

3\. Failure to submit the required certification or

statement may result in an application or assistance

being delayed or denied.

PART III. PROCEDURAL REQUIREMENTS

A. FIELD RESPONSIBILITIES. Field Offices should adhere to

previously issued program specific guidance (see B. below).

The following is a listing of ongoing field responsibilities

for the implementation of the Byrd Amendment:

1\. Maintenance of Certifications and Statements. Executed

certifications and statements should be retained in the

appropriate program file (e.g. project file, contract

file) with other material submitted by the applicant or

requester.

2\. Incomplete Applications. The Field Offices must review

each application or request received to determine

whether it is complete and contains the appropriate

certification or statement. If an application

submitted to the Department does not contain the

required certification or statement, the applicant or

requester must be advised that the required documents

must be submitted before assistance will be provided.

3\. Forwarding and Maintenance of Disclosure Forms. In

cases where a disclosure form (SF-LLL) is submitted by

an applicant or requester:

a\. At the point of receipt make a duplicate of the

disclosure form and forward the original to the

Office of Ethics (Headquarters, Room 2158). The

Office of Ethics will be the central depository

for all disclosure forms filed with the

Department.

b\. A duplicate copy of each disclosure form should be

retained in the appropriate contract, loan, grant,

cooperative agreement file or other similar file.

c\. Disclosure forms which may be submitted at the end

of each calendar quarter will be directed to the

point where the application or other material

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Office of Ethics Page 7 Ethics Letter 91-5

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submitted to the Department was originally

collected. Disclosure forms received at the end

of a calendar quarter shall be forwarded to the

Office of Ethics.

d\. Any request from a member of the public for a copy

of a disclosure form shall be forwarded to the

Office of Ethics for handling. The Office of

Ethics will forward the request to the Executive

Secretariat to be handled in accordance with the

Department\'s Freedom of Information Act (FOIA)

procedures.

4\. Notice of Violations. Any suspected violation of

requirements of the Byrd Amendment should be

immediately brought to the attention of the Director,

Office of Ethics.

5\. NOTE: Even if the loan or grant amounts are not large

enough to trigger the certification and disclosure

requirements, the prohibitions against the use of

Federally appropriated funds for influencing or

attempting to influence the actions of Federal

officials apply. Accordingly, Field Office staff must

be alert to possible violations, which must be reported

to the Office of Ethics.

B. HEADQUARTERS RESPONSIBILITIES. Any Headquarters Program

Office which receives initial applications or other similar

materials submitted to the Department must adhere to the

procedures described for Field Offices in paragraph A.

above. In addition, the head of each major office who has

responsibility for a program involving contracts, grants,

cooperative agreements, loan guarantees or loan insurance

has issued program specific guidance ensuring compliance

with the procedural requirements. A listing of each

office\'s guidance is shown below.

1\. Administration\--Office of Ethics

a\. February 9, 1990 \-- Interim Notice

\-- \"Implementation of the \"Byrd Amendment\" Regarding

the Limitation an Payments Made to Influence

Certain Federal Contracting and Financial

Transactions\" \-- Interim Notice 90-01 ADM I

(expired June 8, 1990).

2\. Administration\--Office of Procurement and Contracts

a\. January 11, 1990 \-- Memorandum to OPC Contracting

Staff and Regional Contracting Officers

\-- \"Implementation of the limitation on the payment

of funds to influence Federal transactions\"

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Office of Ethics Page 8 Ethics Letter 91-5

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b\. February 6, 1990 \-- Memorandum to OPC Contracting

Staff and Regional Contracting Officers

\-- \"Limitation on the payment of funds to influence

Federal transactions\"

c\. May 4, 1990 \-- Memorandum to OPC Staff and

Regional Contracting Officers \-- \"SF-LLL

Disclosure of Lobbying Activities\"

d\. July 5, 1990 \-- Memorandum to OPC Staff and

Regional Contracting Officers \-- \"Clarification

Regarding the Lobbying Restrictions\"

e\. August 8, 1990 \-- Memorandum to OPC Staff and

Regional Contracting Officers \-- \"Lobbying

Certifications on Indefinite Quantity Contracts\"

3\. Office of Housing

a\. April 13, 1990 \-- Notice H 90-27 \-- \"OMB\'s Guidance

on New Government-wide Restrictions on Lobbying\"

(expired April 30, 1991)

b\. April 19, 1990 \-- Memorandum from Office of

Insured Single Family Housing \-- \"Single Family

Development-OMB\'s Guidance on New Government-Wide

Restrictions on Lobbying-the Byrd Amendment\"

c\. April 26, 1990 \-- Coinsuring Lender Letter No.

90-3 \-- \"OMB\'s Interim Final Guidance on

Government-Wide New Restrictions on Lobbying\"

d\. April 26, 1990 \-- \"Mortgagee Letter 90-13

\-- \"OMB\'s Guidance on Government-wide New

Restrictions on Lobbying\"

4\. Community Planning and Development

a\. December 21, 1989 \-- Memorandum to All Regional

Administrators and All Category \"A\" Field Office

Managers \-- \"Revised Certification, CDBG

Entitlement Program Prohibition of Use of Federal

Funds for Lobbying\"

b\. Notices for Funding Availability (NOFA) for the

Rental Rehabilitation Program for last two fiscal

years

5\. Public and Indian Housing

a\. April 27, 1990 \-- Memorandum to All Public Housing

Authorities and Resident Management Corporations

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Office of Ethics Page 9 Ethics Letter 91-5

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b\. July 10, 1990 \-- Memorandum to All Regional

Administrators and All Field Office Managers

\-- \"FY 1990 CIAP Implementation of the Byrd

Amendment\"

c\. Notices concerning the Public Housing

Development/Major Reconstruction of Obsolete

Public Housing Processing in FY 1990 and 1991

6\. Fair Housing and Equal Opportunity

a\. September 4, 1990 \-- Memorandum to All Regional

Office Directors for Fair Housing and Equal

Opportunity \-- \"Implementation of Byrd Amendment\"

7\. Policy Development and Research

a\. PDR does not have field counterparts, therefore,

no field guidance was issued.

8\. Government National Mortgage Association

a\. GNMA does not have field counterparts, therefore,

no field guidance was issued.

In addition to the above listed program specific guidance, all

NOFAs published in the Federal Register contain Byrd Amendment

language.

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Office of Ethics Page 10 Ethics Letter 91-5

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OMB\'s Interim Final Rule of February 26, 1990 (55 FR 6736) can be

found in the FR database. (Attachment 1)

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Attachment 2 Notice 55 FR 24540 of June 15, 1990 can be found in the

FR database.