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Federal Restrictions on Lobbying for HHS Financial Assistance Recipients








  
  
    

  
      





**Topics on this page:** Statutory and Regulatory Background | Current Provisions and Restrictions | Evaluation Reports on Grantee Lobbying Activities

The Department of Health and Human Services (HHS) fully supports federal restrictions on lobbying using federal funds by HHS grant recipients.  In general, recipients of federal funds are not allowed to use said federal funding to lobby federal, state, or local officials or their staff to receive additional funding or influence legislation.  The citations below provide a statutory/ regulatory background as well as Department-wide restrictions and links to the implementing legislation, regulation, or guidance.  If you have further questions, please contact the Chief Grants Management Official within the appropriate awarding agency.

As a general matter, these lobbying restrictions preclude recipients from:

Spending federal funds to influence an officer or employee of any agency or Congressional member/staff regarding federal awards;
	Failing to submit required certification and disclosure forms (i.e., SF-LLL);
	Using grants funds provided to non-profit organizations or institutions of higher education to influence an election, contribute to a partisan organization, or influence enactment or modification of any pending federal or state legislation; or
	Expending federal funds to influence federal, state, or local officials or legislation.To fully understand and comply with the restrictions on lobbying, HHS personnel should check ***all*** appropriations and programmatic statutes and regulations for further limitations and restrictions.

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Statutory and Regulatory Background:

Congress placed restrictions on lobbying on recipients of federal funding from all federal agencies through the Byrd Amendment to the Department of the Interior Appropriations Act for Fiscal Year 1990 Pub. L. 101-121, October 23, 1989; and 31 U.S.C. 1352].  HHS implemented this requirement in 45 CFR Part 93, “New Restrictions on Lobbying” and our Grants Policy Statement.

	No appropriated funds may be expended by the recipient of a Federal contract, grant, loan, or cooperative agreement to pay 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 in connection with any of the following covered Federal actions:  the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.[i]*Influencing or attempting to influence* means making, with the intent to influence, any communication to or appearance before 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 in connection with any covered Federal action.[ii]
	These restrictions were refined in the Lobbying Disclosure Act of 1995 [Pub. L. 104-65, December 19, 1995 and 2 U.S.C. 1601, et. seq.] which defined terms in the Byrd Amendment, and repealed reporting requirements in the Byrd Amendment, including semi-annual agency compilations for Congress and an annual Inspector General report.
	In total, these statutory and regulatory provisions preclude expenditure of federal funds to influence officers or employees of any agency or Congressional members or staff regarding the award of federal contracts, grants, cooperative agreements, or loans.
	HHS’ implementing regulation, 45 CFR Part 93, requires, upon submission that initiates agency consideration of such person, or receipt by such person, of a certification and disclosure form, if required, of:
	a Federal contract, grant or cooperative agreement exceeding $100,000; or
		A Federal loan or a commitment providing for the United States to ensure or guarantee a loan exceeding $150,000.[iii]
	45 CFR Part 93 also requires that each person file a disclosure form at the end of each calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of information contained in any disclosure previously filed by such person. Such event includes:
	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 or individual influencing or attempting to influence a covered Federal action; or
		A change in the officer(s), employee(s), or Member(s) contacted to influence or attempt to influence a covered Federal action.[iv]
	45 CFR Part 93, Appendix A – Certification Regarding Lobbying includes the required language.

	Certification for Contracts, Grants, Loans, and Cooperative Agreements

	The undersigned certifies, to the best of his or her knowledge and belief, that:

	(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

	(2) If any funds other than 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 of employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

	(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.

	This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into.  Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code.  Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

	Statement for Loan Guarantees and Loan Insurance

	The undersigned states, to the best of his or her knowledge and belief, that:

	If any 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 in connection with this commitment providing for the United States to insure or guarantee a loan, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

	Submission of this statement is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code.  Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
	45 CFR Part 93, Appendix B –Disclosure Form to Report Lobbying provides the required SF-LLL for each person to disclose lobbying activities.Back to top

Current Provisions and Restrictions:

Provisions in Appropriations Acts, the Affordable Care Act, and the Uniform Guidance [2 CFR 200 and 45 CFR 75] broaden these restrictions.

Additional restrictions are placed on non-profit organizations and Institutes of Higher Education, precluding grant expenditures to influence an election, contribute to a partisan organization, or influence enactment or modification of any pending federal or state legislation, including legislative liaison activities.[v]  Exceptions to these activities are:

	Technical or factual presentations on topics related to the performance of a grant in response to a documented request made by the member of congress or legislative body.[vi]Any lobbying in order to influence state legislation in order to directly reduce the cost, or to avoid material impairment of the non-federal entity’s authority to perform the grant.[vii]
		Any activity specifically authorized by statute to be undertaken with funds from the federal award.[viii]
		Nonpartisan analysis, study, or research reports and examinations and discussions of broad social, economic, and information provided upon request by a legislator for technical advice and assistance, as defined by the Internal Revenue Code.[ix]HHS stipulates that costs are unallowable if they are associated with any attempt to influence the introduction of federal or state legislation, or the enactment or modification of any pending federal or state legislation through communication with employees or member of congress or state legislatures, or through preparation, distribution or use of publicity or propaganda.[x]
	Appropriations Acts for Fiscal Years 2012 [which also applied to FY 2013 through continuing resolution], 2014, and 2015 provide:
	“No part of any appropriation contained in this Act or transferred pursuant to section 4002 of Public Law 111–148 shall be used, other than for normal and recognized executive-legislative relationships, for publicity or propaganda purposes, for the preparation, distribution, or use of any kit, pamphlet, booklet, publication, electronic communication, radio, television, or video presentation designed to support or defeat the enactment of legislation before the Congress or any State or local legislature or legislative body, except in presentation to the Congress or any State or local legislature itself, or designed to support or defeat any proposed or pending regulation, administrative action, or order issued by the executive branch of any State or local government, except in presentation to the executive branch of any State or local government itself.” [xi]“No part of any appropriation contained in this Act or transferred pursuant to section 4002 of Public Law 111–148 shall be used to pay the salary or expenses of any grant or contract recipient, or agent acting for such recipient, related to any activity designed to influence the enactment of legislation, appropriations, regulation, administrative action, or Executive order proposed or pending before the Congress or any State government, State legislature or local legislature or legislative body, other than for normal and recognized executive-legislative relationships or participation by an agency or officer of a State, local or tribal government in policymaking and administrative processes within the executive branch of that government.” [xii]
		“The prohibitions in subsections [above] shall include any activity to advocate or promote any proposed, pending or future Federal, State or local tax increase, or any proposed, pending, or future requirement or restriction on any legal consumer product, including its sale or marketing, including but not limited to the advocacy or promotion of gun control.”[xiii]
	An Action Transmittal is developed within OG/ASFR and provided to HHS Operating and Staff Divisions with salient provisions of appropriations with which the OPDIVs/STAFFDIVs must comply; as of April 1, 2015, these include the following:
	Implementation of Enacted Language in the FY2012 Consolidated Appropriations Act.[xiv]Implementation of Enacted Language in the Consolidated Appropriations Act, 2014 – Action Transmittal 2014-03.[xv]Back to top

Evaluation Reports on Grantee Lobbying Activities:

**2014** - HHS Office of Inspector General Report:  Laws Prohibit the Use of HHS Grants Funds for Lobbying but Limited Methods Exist to Identify Noncompliance, OEI-07-12-00620

[i] 45 CFR § 93.100(a).

[ii]  45 CFR § 93.105(h).

[iii] 45 CFR §§ 93.110(a) and (b).

[iv] 45 CFR § 93.110(c).

[v]  2 CFR § 200.450(c); 45 CFR § 75.450(c).

[vi] 2 CFR § 200.450(c)(2)(i); 45 CFR § 75.450(c)(2)(i).

[vii] 2 CFR § 200.450(c)(2)(ii); 45 CFR § 75.450(c)(2)(ii).

[viii] 2 CFR § 200.450(c)(2)(iii); 45 CFR § 75.450(c)(2)(iii).

[ix] 2 CFR § 200.450(c)(2)(iv); 45 CFR § 75.450(c)(2)(iv).

[x] 2 CFR § 200.450(c)(1); 45 CFR § 75.450(c)(1).

[xi] Pub. L. 113-235, Division G, Title V, Sec. 503(a),(Dec. 16, 2014); Pub. L. 113-76, Division H, Title V, Sec.503(a), (Jan. 17, 2014); Pub.L. 113-6, (Mar. 26, 2013); Pub. L. 112-74, Division F, Title V, Sec. 503(a), (Dec. 23, 2011).

[xii] Pub. L. 113-235, Division G, Title V, Sec. 503(b), (Dec, 16, 2014); Pub. L. 113-76, Division H, Title V,Sec.503(b), (Jan.17, 2014); Pub.L, 113-6, (Mar, 26,2013); Pub. L. 112-74, Division F, Title V, Sec. 503(b), (Dec. 23, 2011).

[xiii] Pub. L. 113-235,Division G, Title V, Sec. 503(c), (Dec.16,2014); Pub. L. 113-76, Division H, Title V, Sec. 503 (c),(Jan. 17,2014); Pub.L. 113-6, (Mar. 26, 2013);; Pub. L. 112-74, Division F, Title V, Sec. 503(c), (Dec. 23, 2011).

[xiv] Pub. L. 112-74, (April 6, 2012).

[xv] Pub. L. 113-76,  (June 4, 2014).

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Content last reviewed December 6, 2019 Back to top
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