Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 57455 

37.302 [Amended] 

■ 23. Amend section 37.302 in the 

introductory text by removing ‘‘(40 

U.S.C. 270a–270f)’’ and adding ‘‘(40 

U.S.C. 3131 et seq.)’’ in its place. 

PART 39—ACQUISTION OF 

INFORMATION TECHNOLOGY 

39.001 [Amended] 

■ 24. Amend section 39.001 in the 

second sentence by removing ‘‘40 U.S.C. 

1412’’ and adding ‘‘40 U.S.C. 11302’’ in 

its place. 

PART 41—ACQUISTION OF UTILITY 

SERVICES 

41.103 [Amended] 

■ 25. Amend section 41.103 by—

a. Removing from paragraph (a)(1) in 

the first sentence ‘‘section 201 of the 

Federal Property and Administrative 

Services Act of 1949, as amended (40 

U.S.C. 481),’’ and from the third 

sentence ‘‘section 201 of the Act’’ and 

adding ‘‘40 U.S.C. 501’’ in both places; 

and 

b. Removing from paragraph (a)(2) ‘‘40 

U.S.C. 474(d)(3)’’ and adding ‘‘40 U.S.C. 

113(e)(3)’’ in its place. 

PART 47—TRANSPORTATION 

47.102 [Amended] 

■ 26. Amend section 47.102 in 

paragraph (a)(2) by removing ‘‘(40 

U.S.C. 726)’’ and adding ‘‘(40 U.S.C. 

17307)’’ in its place. 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

52.212–4 [Amended] 

■ 27. Amend section 52.212–4 by—

a. Revising the date of the clause to 

read ‘‘(SEP 2005)’’; and 

b. Removing from paragraph (r) of the 

clause ‘‘40 U.S.C. 327’’ and adding ‘‘40 

U.S.C. 3701’’ in its place. 

52.228–15 [Amended] 

■ 28. Amend section 52.228–15 by—

a. Revising the date of the clause to 

read ‘‘(SEP 2005)’’; and 

b. Removing from the heading of 

paragraph (e) of the clause ‘‘(40 U.S.C. 

270b(c)’’; and adding ‘‘(40 U.S.C. 

3133(c))’’ in its place. 

52.232–27 [Amended] 

■ 29. Amend section 52.232–27 by—

a. Revising the date of the clause to 

read ‘‘(SEP 2005)’’; and 

b. Removing from the introductory 

text of paragraph (f)(1) of the clause 

‘‘section 2 of the Act of August 24, 1935 

(40 U.S.C. 270b, Miller Act),’’ and 

adding ‘‘the Miller Act (40 U.S.C. 

3133),’’ in its place. 

[FR Doc. 05–19470 Filed 9–29–05; 8:45 am] 

BILLING CODE 6820–EP–S 

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. 

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 

57456 Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 

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 

■ 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: 

■ 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] 

■ 2. Amend section 3.802 by 

redesignating paragraph (c)(2)(v) as 

paragraph (d). 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 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. 

* * * * * 

Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 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; 

* * * * * 

■ 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 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 6 and 13 

[FAC 2005–06; FAR Case 2004–037; Item 

V] 

RIN 9000–AK12 

Federal Acquisition Regulation; 

Increased Justification and Approval 

Threshold for DOD, NASA, and Coast 

Guard 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed to convert the 

interim rule published in the Federal 

Register at 70 FR 11739, March 9, 2005, 

to a final rule with minor changes. The 

rule amended the Federal Acquisition 

Regulation (FAR) to increase the 

justification and approval thresholds for 

DoD, NASA, and the U.S. Coast Guard. 

The FAR revision implemented Section 

815 of the Ronald W. Reagan National 

Defense Authorization Act for Fiscal 

Year 2005 which amended 10 U.S.C. 

2304(f)(1)(B) by striking $50,000,000 

both places it appears and inserting 

$75,000,000. In addition, corresponding 

language in the FAR is also changed to 

reflect these higher thresholds for DoD, 

NASA, and the Coast Guard. 

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. Michael Jackson, 

Procurement Analyst, at (202) 208–

4949. Please cite FAC 2005–06, FAR 

case 2004–037. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This rule implemented Section 815 of 

the Ronald W. Reagan National Defense 

Authorization Act for Fiscal Year 2005, 

Public Law 108–375, which amended 10 

U.S.C. 2304(f)(1)(B) by striking 

$50,000,000 and inserting $75,000,000. 

DoD, GSA, and NASA published an 

interim rule in the Federal Register at 

70 FR 11739, March 9, 2005, with a 

request for comments by May 9, 2005. 

No comments were received. This final 

rule converts the interim rule with a 

minor change, making corresponding 

changes to FAR 13.501. 

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. Regulatory Flexibility Act 

The Department of Defense, the 

General Services Administration, and 

the National Aeronautics and Space 

Administration certify that this final 

rule will not have a significant 

economic impact on a substantial 

number of small entities within the 

meaning of the Regulatory Flexibility 

Act, 5 U.S.C. 601, et seq., because the 

rule does not impose any costs on either 

small or large businesses. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes to the 

FAR do not impose information 

collection requirements that require the 

approval of the Office of Management 

and Budget under 44 U.S.C. 3501, et 

seq. 

List of Subjects in 48 CFR Parts 6 and 

13 

Government procurement. 

Dated: September 22, 2005. 

Julia B. Wise, 

Director, Contract Policy Division. 

Interim Rule Adopted as Final with 

Changes 

■ Accordingly, DoD, GSA, and NASA 

adopt the interim rule amending 48 CFR 

part 6, which was published in the 

Federal Register at 70 FR 11739, March 

9, 2005, as a final rule with the 

following changes: 

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES 

■ 1. The authority citation for 48 CFR 

part 13 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). 

■ 2. Amend section 13.501 by revising 

the first sentences of paragraphs 

(a)(2)(iii) and (a)(2)(iv) to read as 

follows: 

13.501 Special documentation 

requirements. 

(a) * * * 

(2) * * * 

(iii) For a proposed contract 

exceeding $10,000,000 but not 

exceeding $50,000,000 or, for DoD, 

NASA, and the Coast Guard, not 

exceeding $75,000,000, the head of the 

procuring activity or the official 

described in 6.304(a)(3) or (a)(4) must 

approve the justification and approval. 

* * * 

(iv) For a proposed contract exceeding 

$50,000,000 or, for DoD, NASA, and the 

Coast Guard, $75,000,000, the official 

described in 6.304(a)(4) must approve 

the justification and approval. * * * 

* * * * * 

[FR Doc. 05–19472 Filed 9–29–05; 8:45 am] 

BILLING CODE 6820–EP–S