[Federal Register Volume 89, Number 168 (Thursday, August 29, 2024)]
[Rules and Regulations]
[Pages 70296-70297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19173]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 52

[FAC 2024-07; FAR Case 2023-005, Item I; Docket No. FAR-2023-0005; 
Sequence No. 1]
RIN 9000-AO53


Federal Acquisition Regulation: Reference to Penalty Threshold

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending a Federal 
Acquisition Regulation (FAR) provision to align the penalties language 
with the equivalent penalties language at an associated FAR clause.

DATES: Effective September 30, 2024.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Malissa Jones, Procurement Analyst, at 571-882-4687 or by email at 
[email protected]. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite FAC 2024-07, FAR Case 
2023-005.

SUPPLEMENTARY INFORMATION:

I. Background

    Lobbying coverage in the FAR is based on section 319 of Public Law 
101-121, which added 31 U.S.C. 1352. Section 1352 prohibits the use of 
appropriated funds to influence certain persons in connection with 
awarding or modifying a contract and includes civil penalties. Office 
of Management and Budget (OMB) guidance was published December 20, 1989 
(54 FR 52306), which directed a FAR rule and an OMB nonprocurement 
common rule be published with the same substance. A FAR rule was 
published on January 20, 1990 (55 FR 3190), which has been occasionally 
revised since then. The penalties section of the FAR provision at 
52.203-11, Certification and Disclosure Regarding Payments to Influence 
Certain Federal Transactions,

[[Page 70297]]

contains language citing the dollar figures at 31 U.S.C. 1352. The 
penalties section of the FAR clause at 52.203-12, Limitation on 
Payments to Influence Certain Federal Transactions, refers to 31 U.S.C. 
1352 itself. These should be written the same way.

II. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the FAR is 41 U.S.C. 
1707. Subsection (a)(1) of 41 U.S.C. 1707 requires that a procurement 
policy, regulation, procedure, or form (including an amendment or 
modification thereof) must be published for public comment if it 
relates to the expenditure of appropriated funds, and has either a 
significant effect beyond the internal operating procedures of the 
agency issuing the policy, regulation, procedure, or form, or has a 
significant cost or administrative impact on contractors or offerors. 
This final rule is not required to be published for public comment, 
because it does not have a significant effect or impose any new 
requirements on contractors or offerors. The rule simply amends FAR 
provision 52.203-11(e) to match the language at FAR clause 52.203-12(e) 
which points back to the civil penalties provided in 31 U.S.C. 1352.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Products (Including Commercially 
Available Off-the-Shelf (COTS) Items), or for Commercial Services

    This rule amends FAR provision 52.203-11(e) to match the language 
at FAR clause 52.203-12(e), which points back to the civil penalties 
provided in 31 U.S.C. 1352. This rule does not impose any new 
requirements on contracts at or below the SAT, or to acquisitions for 
commercial products and commercial services, including COTS items.

IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 (as amended by E.O. 14094) and 13563 
direct agencies to assess the costs and benefits of available 
regulatory alternatives and, if regulation is necessary, to select 
regulatory approaches that maximize net benefits (including potential 
economic, environmental, public health and safety effects, distributive 
impacts, and equity). E.O. 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. This is not a significant 
regulatory action and, therefore, was not subject to review under 
Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated 
September 30, 1993.

V. Congressional Review Act

    Pursuant to the Congressional Review Act DoD, GSA, and NASA will 
send this rule to each House of the Congress and to the Comptroller 
General of the United States. The Office of Information and Regulatory 
Affairs (OIRA) in the Office of Management and Budget has determined 
that this rule does not meet the definition in 5 U.S.C. 804(2).

VI. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section II. of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612) are 
not applicable. Accordingly, no regulatory flexibility analysis is 
required, and none has been prepared.

VII. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. 3501-3521).

List of Subjects in 48 CFR Part 52

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR part 52 as set forth 
below:

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
1. The authority citation for 48 CFR part 52 continues to read as 
follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. 
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 
20113.


0
2. Amend section 52.203-11 by revising the date of the provision and 
paragraph (e) to read as follows:


52.203-11  Certification and Disclosure Regarding Payments to Influence 
Certain Federal Transactions.

* * * * *

Certification and Disclosure Regarding Payments To Influence Certain 
Federal Transactions (SEP 2024)

* * * * *
    (e) Penalties. Submission of this certification and disclosure 
is a prerequisite for making or entering into this contract imposed 
by 31 U.S.C. 1352. Any person who makes an expenditure prohibited 
under this provision or who fails to file or amend the disclosure 
required to be filed or amended by this provision, shall be subject 
to civil penalties as provided in 31 U.S.C. 1352. An imposition of a 
civil penalty does not prevent the Government from seeking any other 
remedy that may be applicable.

(End of provision)

[FR Doc. 2024-19173 Filed 8-28-24; 8:45 am]
BILLING CODE 6820-61-P