[Federal Register: July 28, 2004 (Volume 69, Number 144)]
[Proposed Rules]
[Page 44990-45002]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jy04-24]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Parts 21, 22, 25, 32, 33, 34 and 37
RIN 0790-AH75
DoD Grant and Agreement Regulations
AGENCY: Office of the Secretary, DoD.
ACTION: Proposed rule.
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SUMMARY: The Department of Defense (DoD) proposes to amend the DoD
Grant and Agreement Regulations (DoDGARs) to implement four Office of
Management and Budget (OMB) policy directives, to conform the DoDGARs
with several statutory and regulatory revisions, and to make other
administrative changes. The four OMB directives that are being
implemented: Require Federal agencies to use a new standard format for
announcements of funding opportunities; require Federal agencies to
electronically post synopses of those announcements at a government-
wide Internet site; require government-wide use of the Data Universal
Numbering System (DUNS) number as the universal identifier for
recipient organizations; and amend OMB Circular A-133 to raise the
threshold of Federal funding at which recipients must obtain single
audits. The statutory and regulatory changes with which the DoDGARs are
being conformed concern matters such as nonprocurement debarment and
suspension, drug-free workplace requirements for grants, and campus
access for military recruiters and Reserve Officer Training Corps.
DATES: Comments are due on or before September 27, 2004.
ADDRESSES: Forward comments to ODUSD (LABS), ATTN: Mark Herbst, 3040
Defense Pentagon, Washington, DC 20301-3040.
FOR FURTHER INFORMATION CONTACT: Mark Herbst, Office of the Deputy
Under Secretary of Defense (Laboratories and Basic Sciences), 3040
Defense Pentagon, Washington, DC 20301-3040.
SUPPLEMENTARY INFORMATION: The Department of Defense (DoD) proposes to
update the DoD Grant and Agreement Regulations (DoDGARs), the
regulations that provide uniform policies and procedures for DoD
Components' award and administration of grants and agreements. The
updates involve amendments to seven DoDGARs parts--32 CFR parts 21, 22,
25, 32, 33, 34 and 37. The amendments are needed to conform those parts
with government-wide and DoD policy changes and with DoD organizational
and administrative changes. The following paragraphs describe the
changes addressed by the proposed amendments to the six parts.
Government-wide standard format for program announcements. OMB
issued a policy directive, ``Format for Financial Assistance Program
Announcements'' [68 FR 37370, June 23, 2003], that requires Federal
agencies to use a standard format for announcements of funding
opportunities under which discretionary awards of grants or cooperative
agreements may be made. The policy directive further requires that
announcements, with a few exceptions, be posted on the Internet. The
DoD is proposing to revise paragraphs (a), (a)(1) and (2) of 32 CFR
22.315 to implement this OMB policy directive (see proposed amendment
number 7 following this preamble).
Electronic posting of synopses of program announcements. A second
OMB policy directive, ``Requirement to Post Funding Opportunity
Announcement Synopses at Grants.gov and Related Data Elements/Format''
[68 FR 58146, October 8, 2003], requires Federal agencies to post on
the Internet a summary of each announcement. The DoD is proposing to
revise paragraph (a)(3) of 32 CFR 22.315 to implement this policy
directive (see proposed amendment number 7 following this preamble).
Use of Data Universal Numbering System (DUNS) numbers. A third OMB
policy directive, ``Requirement for a DUNS number in Applications for
Federal Grants and Cooperative Agreements' [68 FR 38402, June 27,
2003], established the Data Universal Numbering System (DUNS) number as
the universal identifier for Federal grant and cooperative agreement
applicants and recipients. It states that applications must include the
DUNS number and that Federal agency information systems that handle
data on grants and cooperative agreements must be able to accept the
DUNS number. The DoD is proposing a new section 32 CFR 21.565 to
implement the requirement for agency information systems and a revised
paragraph (a)(4) in 32 CFR 22.315 to address the requirement for
including DUNS numbers in
[[Page 44991]]
applications (see proposed amendment numbers 2 and 7 following this
preamble).
Dollar threshold for single audit requirements. The OMB also
revised OMB Circular A-133, ``Audits of States, Local Governments, and
Non-Profit Organizations,'' to increase the threshold at which
recipients are required to have single audits. The revision to the
circular [68 FR 38401, June 27, 2003] increased the threshold from
$300,000 per year to $500,000 per year in expenditures of Federal
funds. The revision also increased the threshold (from $25 million per
year to $50 million per year in expenditures of Federal funds) at which
a recipient would be assigned a cognizant Federal agency for audits and
made related technical changes. The DoD is proposing to revise two
sections of the DoDGARs--32 CFR 33.26 for awards to State, local, and
other governmental organizations and 34.16 for for-profit recipients--
to replace the $300,000 threshold amount with the updated $500,000
threshold (see proposed amendment numbers 25 and 28 following this
preamble).
Nonprocurement debarment and suspension and drug-free workplace
requirements. The DoD recently joined with thirty-two other Federal
agencies to publish [68 FR 66534, November 26, 2003] updated
government-wide common rules on nonprocurement debarment and suspension
and on drug-free workplace requirements for grants and agreements. The
updated common rule on nonprocurement debarment and suspension is part
25 of the DoDGARs (32 CFR part 25) and the common rule on drug-free
workplace requirements is part 26 (32 CFR part 26). The DoD now is
proposing to make conforming amendments to DoDGARs parts 21, 22, 32,
33, 34 and 37, to incorporate changes in policies and procedures due to
the revisions of parts 25 and 26 and to correct references to sections
of those two revised parts (see proposed amendment numbers 3, 5, 8,
9.a, 11.a, 15.a, 17, 18, 22, 23, 26, 29, 31, 32, and 33 following this
preamble).
Campus access for military recruiters and Reserve Officer Training
Corps (ROTC). Section 549 of the National Defense Authorization Act for
Fiscal Year 2000 (Pub. L. 106-65) recodified and consolidated--in 10
U.S.C. 983--two separate statutes applicable to institutions of higher
education that receive DoD grants. The first of the two statutes
prohibits DoD from providing funds by grant to institutions that deny
military recruiters entry to campus or access to students or student
information for recruiting purposes. Before Public Law 106-65
recodified that requirement in 10 U.S.C. 983, it was in section 558 of
the National Defense Authorization Act for Fiscal Year 1995 (Pub. L.
103-337). The DoD implemented that section 558 requirement, as it
applied to grants, in the DoDGARs at 32 CFR 22.520.
The second of the two statutes prohibits DoD from providing funds
by grant to an institution that prevents the establishment and
operation of a Senior ROTC unit on campus or student enrollment in a
unit at an alternate institution. That statute was originally codified
in 10 U.S.C. 983 by the National Defense Authorization Act for Fiscal
Year 1996 (Pub. L. 104-106).
With the recodification and consolidation of both requirements in
10 U.S.C. 983, the DoD proposes to revise section 32 CFR 22.520 of the
DoDGARs and make conforming changes in sections 32 CFR 22.420 and 32
CFR 25.425. The proposed revision of 32 CFR 22.520 addresses the
requirements concerning ROTC, as well as the restrictions concerning
military recruiters' access that already were addressed in 32 CFR
22.520. Among the proposed changes in 32 CFR 22.520 are: The inclusion
of the requirement concerning ROTC in the award term in paragraph
22.520(f); a clarification in a new paragraph 22.520(e)(2) that the
prohibition on providing funds by grant extends, by law, to obligations
of additional funds for pre-existing awards (e.g., incremental funding
actions); and a revision to paragraph 22.520(d)(1) to apply the
prohibition on use of DoD funds to an institution of higher education
as a whole, as 10 U.S.C. 983 requires, when any subordinate element of
the institution has a policy or practice that denies access for ROTC or
military recruiters (see proposed amendment number 12 following this
preamble for the changes to section 32 CFR 22.520 and proposed
amendment numbers 9.a and 20 for the conforming changes to sections 32
CFR 22.420 and 32 CFR 25.425).
Other Proposed Revisions. In addition to the proposed revisions
described above, the DoD is proposing to make other needed updates to
the DoDGARs. Those proposed updates are: (1) A deletion of paragraph
(a)(4) of section 32 CFR 22.715, to conform that section with revised
procedures for oversight of single audits; (2) changes in Appendices A
and B to 32 CFR part 22, to reflect revisions in regulations
implementing national policy requirements; and (3) updates to office
names, footnote references to sources of OMB and DoD documents, and
cross references to sections within the DoDGARs (see proposed amendment
numbers 6, 9.b, 10, 11.b, 13, 14, 15.b, 16, and 18 following this
preamble).
Executive Order 12866
OMB has determined this rule to be significant and it has been
reviewed and approved for publication.
Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))
This proposed regulatory action will not have a significant adverse
impact on a substantial number of small entities.
Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)
This proposed regulatory action does not contain a Federal mandate
that will result in the expenditure by State, local, and tribal
governments, in aggregate, or by the private sector of $100 million or
more in any one year.
Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)
This proposed regulatory action will not impose any additional
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
Federalism (Executive Order 13132)
This proposed regulatory action does not have Federalism
implications, as set forth in Executive Order 13132. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.
List of Subjects
32 CFR Part 21
Grant programs, Reporting and recordkeeping requirements.
32 CFR Part 22
Accounting, Grant programs, Grant programs--education, Reporting
and recordkeeping requirements.
32 CFR Part 25
Accounting, Grant programs, Loan programs, Reporting and
recordkeeping requirements.
32 CFR Part 32
Accounting, Colleges and universities, Grant programs, Hospitals,
Nonprofit organizations, Reporting and recordkeeping requirements.
32 CFR Part 33
Grant programs, Indians, Intergovernmental relations, Reporting and
recordkeeping requirements.
[[Page 44992]]
32 CFR Part 34
Accounting, Government property, Grant programs, Nonprofit
organizations, Reporting and recordkeeping requirements.
32 CFR Part 37
Accounting, administrative practice and procedure, Grant programs,
Grants administration, Reporting and recordkeeping requirements.
Accordingly, title 32 of the Code of Federal Regulations, chapter
I, subchapter B is proposed to be amended as follows:
PART 21--[AMENDED]
1. The authority citation for part 21 continues to read as follows:
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
Subpart E--[Amended]
2. Subpart E is amended by:
a. Adding a new Sec. 21.565 to read as set forth below; and
b. Adding a new footnote 6 to read as set forth below.
Sec. 21.565 Must DoD Components' electronic systems accept Data
Universal Numbering System (DUNS) numbers?
The DoD Components must comply with paragraph 5.e of the Office of
Management and Budget (OMB) policy directive entitled, ``Requirement
for a DUNS number in Applications for Federal Grants and Cooperative
Agreements.'' \6\ Paragraph 5.e requires electronic systems that handle
information about grants and cooperative agreements (which, for the
DoD, include Technology Investment Agreements) to accept DUNS numbers.
Each DoD Component that awards or administers grants or cooperative
agreements must ensure that DUNS numbers are accepted by each such
system for which the DoD Component controls the system specifications.
If the specifications of such a system are subject to another
organization's control and the system can not accept DUNS numbers, the
DoD Component must alert that organization to the OMB policy
directive's requirement for use of DUNS numbers with a copy to:
Director for Basic Sciences, ODDR&E, 3040 Defense Pentagon, Washington,
DC 20301-3040.
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\6\ This OMB policy directive is in a Federal Register notice
published on June 27, 2003 [68 FR 38402], which is also available at
the Internet site http://www.whitehouse.gov/omb/grants/grants.docs.html
.
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3. Appendix A to part 21 is revised to read as follows:
Appendix A to Part 21--Instruments to Which DoDGARs Portions Apply
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Which addresses . .
DoDGARs . . . . Applies to . . .
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Part 21 (32 CFR part 21), The Defense Grant ``Awards,'' which
all but Subparts D and E. Agreement are grants,
Regulatory System cooperative
and the DoD Grant agreements,
and Agreement technology
Regulations. investment
agreements (TIAs),
and other
nonprocurement
instruments subject
to one or more
parts of the
DoDGARs.
Part 21 (32 CFR part 21), Authorities and Grants, cooperative
Subpart D. responsibilities agreements, and
for assistance TIAs.
award and
administration.
Part 21 (32 CFR part 21), DoD Components' Grants, cooperative
Subpart E. information agreements, TIAs,
reporting and other
requirements. nonprocurement
instruments ubject
to reporting
requirements in 31
U.S.C. chapter 61.
Part 22 (32 CFR part 22).... DoD grants officers' Grants and
responsibilities cooperative
for award and agreements other
administration of than TIAs.
grants and
cooperative
agreements.
Part 25 (32 CFR part 25).... Governmentwide Nonprocurement
debarment and generally, which
suspension includes grants,
requirements. cooperative
agreements, TIAs,
and other
instruments that
are covered
transactions under
32 CFR 25.210, with
the exceptions
identified at 32
CFR 25.215.
Part 26 (32 CFR part 26).... Governmentwide drug- Grants, cooperative
free workplace agreements and
requirements. other financial
assistance
instruments,
including TIAs,
that are included
in the definition
of ``award'' at 32
CFR 26.605.
Part 28 (32 CFR part 28).... Governmentwide Grants, cooperative
restrictions on agreements and
lobbying. other financial
assistance
instruments,
including TIAs,
that are included
in the definitions
of ``Federal
grant'' and
``Federal
cooperative
agreement'' at 32
CFR 28.105.
Part 32 (32 CFR part 32).... Administrative Grants, cooperative
requirements for agreements other
grants and than TIAs, and
agreements with other assistance
institutions of included in
higher education, ``award'' as
hospitals, and defined in 32 CFR
other non-profit 32.2. Portions of
organizations. this part apply to
TIAs, but only as
32 CFR part 37
refers to them and
makes them apply.
Part 33 (32 CFR part 33).... Administrative Grants, cooperative
requirements for agreements other
grants and than TIAs, and
agreements with other assistance
State and local included in
governments. ``grant,'' as
defined in 32 CFR
33.3. Portions of
this part apply to
TIAs, but only as
32 CFR part 37
refers to them and
makes them apply.
Part 34 (32 CFR part 34).... Administrative Grants and
requirements for cooperative
grants and agreements other
agreements with for- than TIAs
profit (``awards,'' as
organizations. defined in 32 CFR
34.2). Portions of
this part apply to
TIAs, but only as
32 CFR part 37
refers to them and
makes them apply.
Part 37 (32 CFR part 37).... Agreements officers' TIAs. Note that this
responsibilities part refers to
for award and portions of DoDGARs
administration of parts 32, 33, and
TIAs. 34 that apply to
TIAs.
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PART 22--[AMENDED]
4. The authority citation for part 22 continues to read as follows:
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
5. Section 22.100 is amended as follows:
a. Redesignating paragraph (b)(3) as (b)(4);
b. Redesignating paragraph (b)(2) as (b)(3);
[[Page 44993]]
c. Amending paragraph (b)(1) by revising ``Governmentwide rules on
debarment, suspension and drug-free workplace requirements'' to read
``The Governmentwide rule on nonprocurement debarment and suspension''.
d. Adding a new paragraph (b)(2) to read as follows:
Sec. 22.100 Purpose, relation to other parts, and organization.
* * * * *
(b) * * *
(2) The Governmentwide rule on drug-free workplace requirements, in
32 CFR part 26.
* * * * *
Sec. 22.220 [Amended]
6. Section 22.220, paragraph (a) is amended as follows:
a. Paragraph (a)(1) by revising ``Director of Defense Procurement
(DDP)'' to read ``Director of Defense Procurement and Acquisition
Policy (DDP&AP)''.
b. Paragraph (a)(2) by revising ``DDP'' to read ``DDP&AP''.
7. Section 22.315 is amended by:
a. Revising paragraph (a) to read as set forth below; and
b. Adding new footnotes 2, 3, and 4 to read as set forth below.
Sec. 22.315 Merit-based, competitive procedures.
* * * * *
(a) Notice to prospective proposers. The notice may be a notice of
funding availability or Broad Agency Announcement that is publicly
disseminated, with unlimited distribution, or a specific notice that is
distributed to eligible proposers (a specific notice must be
distributed to at least two eligible proposers to be considered as part
of a competitive procedure). Requirements for notices are as follows:
(1) The format and content of each notice must conform with the
government-wide format for announcements of funding opportunities
established by the Office of Management and Budget (OMB) in a policy
directive entitled, ``Format for Financial Assistance Program
Announcements.'' \2\
(2) In accordance with that OMB policy directive, DoD Components
also must post on the Internet any notice under which domestic entities
may submit proposals, if the distribution of the notice is unlimited.
DoD Components are encouraged to simultaneously publish the notice in
other media (e.g., the Federal Register), if doing so would increase
the likelihood of its being seen by potential proposers. If a DoD
Component issues a specific notice with limited distribution (e.g., for
national security considerations), the notice need not be posted on the
Internet.
(3) To comply with an OMB policy directive entitled, ``Requirement
to Post Funding Opportunity Announcement Synopses at Grants.gov and
Related Data Elements/Format,'' \3\ DoD Components must post on the
Internet a synopsis for each notice that, in accordance with paragraph
(a)(2) of this section, is posted on the Internet. The synopsis must be
posted at the government-wide site designated by the OMB (currently
http://www.FedGrants.gov). The synopsis for each notice must provide
complete instructions on where to obtain the notice and should have an
electronic link to the Internet location at which the notice is posted.
(4) In accordance with an OMB policy directive entitled,
``Requirement for a DUNS number in Applications for Federal Grants and
Cooperative Agreements,'' \4\ each notice must include a requirement
for proposers to include Data Universal Numbering System (DUNS) numbers
in their proposals. If a notice provides for submission of application
forms, the forms must incorporate the DUNS number. To the extent that
unincorporated consortia of separate organizations may submit
proposals, the notice should explain that an unincorporated consortium
would use the DUNS number of the entity proposed to receive DoD
payments under the award (usually, a lead organization that consortium
members identify for administrative matters).
* * * * *
\2\ This OMB policy directive is in a Federal Register notice
published on June 23, 2003 [68 FR 37370], which is also available at
the Internet site http://www.whitehouse.gov/omb/grants/grants.docs.html
.
\3\ This OMB policy directive is in a Federal Register notice
published on October 8, 2003 [68 FR 58146], which is also available
at the Internet site http://www.whitehouse.gov/omb/grants/grants.docs.html
.
\4\ This OMB policy directive is in a Federal Register notice
published on June 27, 2003 [68 FR 38402], which is also available at
the Internet site http://www.whitehouse.gov/omb/grants/grants.docs.html
.
Sec. 22.405 [Amended]
8. Section 22.405, paragraph (a) is amended by revising ``32 CFR
25.115(a)'' to read ``32 CFR 25.110(a)''.
9. Section 22.420 is amended as follows:
a. Revising paragraph (c)(1) to read as set forth below; and
b. Redesignating the current footnote 2 in paragraph (b)(1) of
section 22.420 as footnote 5 and revising it to read as set forth
below.
Sec. 22.420 Pre-award procedures.
* * * * *
(c) * * *
(1) Is not identified in the government-wide Excluded Parties List
System (EPLS) as being debarred, suspended, or otherwise ineligible to
receive the award. (In addition to being a requirement for every new
award, note that checking the EPLS also is a requirement for subsequent
obligations of additional funds, such as incremental funding actions,
for pre-existing awards to institutions of higher education, as
described at 32 CFR 22.520(e)(2).) The grants officer's
responsibilities include (see 32 CFR 25.425 and 25.430) checking the
EPLS for:
(i) Potential recipients of prime awards; and
(ii) A recipient's principals (as defined at 32 CFR 25.995),
potential recipients of subawards, and principals of those potential
subaward recipients, if DoD Component approval of those principals or
lower-tier recipients is required under the terms of the award (e.g.,
if a subsequent change in a recipient's principal investigator or other
key person would be subject to the DoD Component's prior approval under
32 CFR 32.25(c)(2), 33.30(d)(3), or 34.15(c)(2)(i)).
* * * * *
\5\ Electronic copies may be obtained at Internet site http://www.whitehouse.gov/OMB.
For paper copies, contact the Office of
Management and Budget, EOP Publications, 725 17th St. NW., New
Executive Office Building, Washington, DC 20503.
Sec. 22.505 [Amended]
10. Section 22.505 is amended by redesignating the existing
footnotes 3 and 4 in paragraph (a) of section 22.505 as footnotes 6 and
7, respectively, and by revising them to read as follows:
\6\ See footnote 5 to Sec. 22.420(b)(1).
\7\ See footnote 5 to Sec. 22.420(b)(1).
11. Section 22.510 is amended by:
a. Revising paragraphs (a)(2)(ii)(A), (a)(2)(ii)(B), and
(a)(2)(ii)(C) to read as set forth below; and
b. Redesignating the current footnote 5 in paragraph (b) of Sec.
22.510 as footnote 8 and revising it to read as set forth below:
Sec. 22.510 Certifications, representations, and assurances.
* * * * *
[[Page 44994]]
(a) * * *
(2) * * *
(ii) * * *
(A) If a grants officer elects to have proposers incorporate
certifications by reference into their proposals, he or she must do so
in one of the two following ways. When required by statute or codified
regulation, the solicitation must include the full text of the
certifications that proposers are to provide by reference. In other
cases, the grants officer may include language in the solicitation that
informs the proposers where the full text may be found (e.g., in
documents or computer network sites that are readily available to the
public) and offers to provide it to proposers upon request.
(B) Appendix A to this part provides language that may be used for
incorporating by reference the certification on lobbying, which
currently is the only certification requirement that commonly applies
to DoD grants and agreements. Because that certification is required by
law to be submitted at the time of proposal, rather than at the time of
award, Appendix A includes language to incorporate the certification by
reference into a proposal.
(C) Grants officers may incorporate certifications by reference in
award documents when doing so is consistent with statute and codified
regulation (that is not the case for the lobbying certification
addressed in paragraph (a)(2)(ii)(B) of this section). The provision
that a grants officer would use to incorporate certifications in award
documents, when consistent with statute and codified regulation, would
be similar to the provision in Appendix A to this part, except that it
would be modified to state that the recipient is providing the required
certifications by signing the award document or by accepting funds
under the award.
* * * * *
\8\ For copies of Standard Forms listed in this part, contact
regional grants administration offices of the Office of Naval
Research. Addresses for the offices are listed in the ``Federal
Directory of Contract Administration Services (CAS) Components,''
which may be accessed through the Defense Contract Management Agency
homepage at: http://www.dcma.mil.
12. Section 22.520 is revised to read as follows:
Sec. 22.520 Campus access for military recruiting and Reserve Officer
Training Corps (ROTC).
(a) Purpose. (1) The purpose of this section is to implement 10
U.S.C. 983 as it applies to grants. Under that statute, DoD Components
are prohibited from providing funds to institutions of higher education
that have policies or practices, as described in paragraph (c) of this
section, restricting campus access of military recruiters or the
Reserve Officer Training Corps (ROTC).
(2) By addressing the effect of 10 U.S.C. 983 on grants and
cooperative agreements, this section supplements the DoD's primary
implementation of that statute in 32 CFR part 216, ``Military
Recruiting and Reserve Officer Training Corps Program Access to
Institutions of Higher Education.'' Part 216 establishes procedures by
which the Department of Defense identifies institutions of higher
education that have a policy or practice described in paragraph (c) of
this section.
(b) Definition specific to this section. ``Institution of higher
education'' in this section has the meaning given at 32 CFR 216.3,
which is different than the meaning given at Sec. 22.105 for other
sections of this part.
(c) Statutory requirement of 10 U.S.C. 983. No funds made available
to the Department of Defense may be provided by grant to an institution
of higher education (including any subelement of such institution) if
the Secretary of Defense determines that the institution (or any
subelement of that institution) has a policy or practice that either
prohibits, or in effect prevents:
(1) The Secretary of a military department from maintaining,
establishing, or operating a unit of the Senior ROTC (in accordance
with 10 U.S.C. 654 and other applicable Federal laws) at that
institution (or any subelement of that institution);
(2) A student at that institution (or any subelement of that
institution) from enrolling in a unit of the Senior ROTC at another
institution of higher education;
(3) The Secretary of a Military Department or Secretary of Homeland
Security from gaining entry to campuses, or access to students (who are
17 years of age or older) on campuses, for purposes of military
recruiting; or
(4) Access by military recruiters for purposes of military
recruiting to the following information pertaining to students (who are
17 years of age or older) enrolled at that institution (or any
subelement of that institution):
(i) Names, addresses, and telephone listings.
(ii) Date and place of birth, levels of education, academic majors,
degrees received, and the most recent educational institution enrolled
in by the student.
(d) Policy. (1) Applicability to cooperative agreements. As a
matter of DoD policy, the restrictions of 10 U.S.C. 983, as implemented
by 32 CFR part 216, apply to cooperative agreements, as well as grants.
(2) Deviations. Grants officers may not deviate from any provision
of this section without obtaining the prior approval of the Director of
Defense Research and Engineering. Requests for deviations shall be
submitted, through appropriate channels, to: Director for Basic
Sciences, ODUSD (LABS), 3040 Defense Pentagon, Washington, DC 20301-
3040.
(e) Grants officers' responsibilities. (1) A grants officer shall
not award any grant or cooperative agreement to an institution of
higher education that has been identified pursuant to the procedures of
32 CFR part 216. Such institutions are identified as being ineligible
on the Governmentwide Excluded Parties List System (EPLS). The cause
and treatment code on the EPLS indicates the reason for an
institution's ineligibility, as well as the effect of the exclusion.
Note that 32 CFR 25.425 and 25.430 require a grants officer to check
the EPLS prior to determining that a recipient is qualified to receive
an award.
(2) A grants officer shall not consent to a subaward of DoD funds
to such an institution, under a grant or cooperative agreement to any
recipient, if the subaward requires the grants officer's consent.
(3) A grants officer shall include the following award term in each
grant or cooperative agreement with an institution of higher education
(note that this requirement does not flow down and that recipients are
not required to include the award term in subawards):
As a condition for receipt of funds available to the Department
of Defense (DoD) under this award, the recipient agrees that it is
not an institution of higher education (as defined in 32 CFR part
216) that has a policy or practice that either prohibits, or in
effect prevents:
(A) The Secretary of a Military Department from maintaining,
establishing, or operating a unit of the Senior Reserve Officers
Training Corps (in accordance with 10 U.S.C. 654 and other
applicable Federal laws) at that institution (or any subelement of
that institution);
(B) Any student at that institution (or any subelement of that
institution) from enrolling in a unit of the Senior ROTC at another
institution of higher education;
(C) The Secretary of a Military Department or Secretary of
Homeland Security from gaining entry to campuses, or access to
students (who are 17 years of age or older) on campuses, for
purposes of military recruiting; or
(D) Access by military recruiters for purposes of military
recruiting to the names
[[Page 44995]]
of students (who are 17 years of age or older and enrolled at that
institution or any subelement of that institution); their addresses,
telephone listings, dates and places of birth, levels of education,
academic majors, and degrees received; and the most recent
educational institutions in which they were enrolled.
If the recipient is determined, using the procedures in 32 CFR
part 216, to be such an institution of higher education during the
period of performance of this agreement, the Government will cease
all payments of DoD funds under this agreement and all other DoD
grants and cooperative agreements to the recipient, and it may
suspend or terminate such grants and agreements unilaterally for
material failure to comply with the terms and conditions of award.
(4) If an institution of higher education refuses to accept the
award term in paragraph (e)(3) of this section, the grants officer
shall:
(i) Determine that the institution is not qualified with respect to
the award. The grants officer may award to an alternative recipient.
(ii) Transmit the name of the institution, through appropriate
channels, to the Director for Accession Policy, Office of the Deputy
Under Secretary of Defense for Military Personnel Policy (ODUSD(MPP)),
4000 Defense Pentagon, Washington, DC 20301-4000. This will allow ODUSD
(MPP) to decide whether to initiate an evaluation of the institution
under 32 CFR part 216, to determine whether it is an institution that
has a policy or practice described in paragraph (c) of this section.
(5) With respect to any pre-existing award to an institution of
higher education that currently is listed on the EPLS pursuant to a
determination under 32 CFR part 216, a grants officer:
(i) Shall not obligate additional funds available to the DoD for
the award. A grants officer therefore must check the EPLS before
approving an incremental funding action or other additional funding for
any pre-existing award to an institution of higher education. The
grants officer may not obligate the additional funds if the cause and
treatment code indicates that the reason for an institution's EPLS
listing is a determination under 32 CFR part 216 that institutional
policies or practices restrict campus access of military recruiters or
ROTC.
(ii) Shall not approve any request for payment submitted by such an
institution (including payments for costs already incurred).
(iii) Shall:
(A) Terminate the award unless he or she has a reason to believe,
after consulting with the ODUSD (MPP), 4000 Defense Pentagon,
Washington, DC. 20301-4000, that the institution may be removed from
the EPLS in the near term and have its eligibility restored; and
(B) Suspend any award that is not immediately terminated, as well
as all payments under it.
(f) Post-award administration responsibilities of the Office of
Naval Research (ONR). As the DoD office assigned responsibility for
performing field administration services for grants and cooperative
agreements with institutions of higher education, the ONR shall
disseminate the list it receives from the ODUSD(MPP) of institutions of
higher education identified pursuant to the procedures of 32 CFR part
216 to:
(1) ONR field administration offices, with instructions to:
(i) Disapprove any payment requests under awards to such
institutions for which post-award payment administration was delegated
to the ONR; and
(ii) Alert the DoD offices that made the awards to their
responsibilities under paragraphs (e)(5)(i) and (e)(5)(i) (iii) of this
section.
(2) Awarding offices in DoD Components that may be identified from
data in the Defense Assistance Awards Data System (see 32 CFR 21.520
through 21.555) as having awards with such institutions for which post-
award payment administration was not delegated to ONR. The ONR is to
alert those offices to their responsibilities under paragraph (e)(5) of
this section.
Sec. 22.605 [Amended]
13. Section 22.605 is amended by redesignating the current footnote
6 in paragraph (c)(2) as footnote 9 and revising it to read as follows:
\9\ See footnote 8 to Sec. 22.510(b).
14. Section 22.710 is amended as follows:
a. Revising the introductory text to read as set forth below;
and
b. Redesignating the current footnotes 7 through 9 in the
introductory text and paragraphs (a)(1) and (2) respectively as
footnotes 10 through 12 and revising them to read as set forth
below.
Sec. 22.710 Assignment of grants administration offices.
In accordance with the policy stated in Sec. 22.705(b), the DoD
offices (referred to in this part as ``grants administration offices'')
that are assigned responsibility for performing field administration
services for grants and cooperative agreements are (see the ``Federal
Directory of Contract Administration Services (CAS) Components''\10\
for specific addresses of administration offices):
* * * * *
\10\ The ``Federal Directory of Contract Administration Services
(CAS) Components'' may be accessed through the Defense Contract
Management Agency homepage at http://www.dcma.mil.
\11\ See footnote 5 to Sec. 22.420(b)(1).
\12\ See footnote 5 to Sec. 22.420(b)(1).
Sec. 22.715 [Amended]
15. Section 22.715 is amended as follows:
a. In paragraph (a)(3)(ii) by revising ``32 CFR part 25'' to read
``32 CFR part 26''.
b. Removing paragraph (a)(4).
Sec. 22.810 [Amended]
16. Section 22.810 is amended by redesignating footnote 10 to
paragraph (c)(3)(i) as footnote 13 and revising it to read as follows:
\13\ Electronic copies may be obtained at the Washington
Headquarters Services Internet site http://www.dtic.mil/whs/directives.
Paper copies may be obtained, at cost, from the National
Technical Information Service, 5285 Port Royal Road, Springfield, VA
22161.
17. Appendix A to Part 22 is revised to read as follows:
Appendix A to Part 22--Proposal Provision for Required Certification
[[Page 44996]]
----------------------------------------------------------------------------------------------------------------
Used for
Provision in proposal (or, ------------------------------------------------------------ Source of
suitably modified, in award) Type of award Type of recipient Specific situation requirement
----------------------------------------------------------------------------------------------------------------
By signing and submitting this Any financial All but Indian Any............... 32 CFR 28, which
proposal, the recipient is assistance [see tribe or tribal implements 31
providing the certification at 32 CFR 28.105(b) organization with U.S.C. 1352.
Appendix A to 32 CFR part 28 and definitions respect to
regarding lobbying. of ``Federal expenditures
grant,'' specifically
``Federal permitted by
cooperative other Federal law
agreement,'' and [see 32 CFR
``Federal loan'' 28.105(l)].
in 32 CFR
28.105(c), (d),
and (e)].
----------------------------------------------------------------------------------------------------------------
18. Revise Appendix B to Part 22 to read as follows:
Appendix B to Part 22--Suggested Award Provisions for National Policy
Requirements That Often Apply
----------------------------------------------------------------------------------------------------------------
Used for
--------------------------------------------------------- Some requirement(s)
Suggested award provision Specific the grants officer
Type of award Type of recipient situation should note
----------------------------------------------------------------------------------------------------------------
Nondiscrimination--By signing
this agreement or accepting
funds under this agreement,
the recipient assures that it
will comply with applicable
provisions of the following,
national policies prohibiting
discrimination:
a. On the basis of race, Grants, Any.............. Any.............. 32 CFR part 195.6
color, or national origin, cooperative requires grants
in Title VI of the Civil agreements, and officer to obtain
Rights Act of 1964 (42 other financial recipient's assurance
U.S.C. 2000d, et seq.), as assistance of compliance. It
implemented by DoD included at 32 also requires the
regulations at 32 CFR part CFR 195.2(d). recipient to flow
195. down requirements to
subrecipients.
b. On the basis of race, Grants, Any.............. Awards under The grants officer
color, religion, sex, or cooperative which should inform
national origin, in agreements, and construction recipients that 41
Executive Order 11246 [3 other prime work is to be CFR 60-1.4(b)
CFR, 1964-1965 Comp., p. awards defined done. prescribes a clause
339], as implemented by at 40 CFR 60-1.3 that recipients must
Department of Labor as ``Federally include in federally
regulations at 41 CFR part assisted assisted construction
60. construction awards and subawards
contract''. [60-1.4(d) allows
incorporation by
reference]. This
requirement also is
at 32 CFR 33.36(I)(3)
and in Appendices A
to 32 CFR part 32 and
32 CFR part 34.
c. On the basis of sex or Grants, Any [for sex Any educational 32 CFR 196.115
blindness, in Title IX of cooperative discrimination, program or requires assurance of
the Education Amendments agreements, and 32 CFR 196.235 activity compliance. The
of 1972 (20 U.S.C. 1681, other financial excepts an receiving inclusion of
et seq.), as implemented assistance entity Federal subrecipients in the
by DoD regulations at 32 included at 20 controlled by a financial definition of
CFR part 196. U.S.C. 1682. religious assistance. ``recipient'' at 32
organization, if CFR 196.105 requires
not consistent recipient to flow
with the down requirements to
organization's subrecipients.
religious
tenets].
d. On the basis of age, in Grants, Any.............. Any.............. 45 CFR 90.4 requires
the Age Discrimination Act cooperative that recipient flow
of 1975 (42 U.S.C. 6101, agreements, and down requirements to
et seq.), as implemented other awards subrecipients
by Department of Health defined at 45 [definition of
and Human Services CFR 90.4 as ``recipient'' at 45
regulations at 45 CFR part ``Federal CFR 90.4 includes
90. financial entities to which
assistance''. assistance is
extended indirectly,
through another
recipient].
e. On the basis of
handicap, in:
1. Section 504 of the Grants, Any.............. Any.............. 32 CFR 56.9(b)
Rehabilitation Act of cooperative requires grants
1973 (29 U.S.C. 794), agreements, and officer to obtain
as implemented by other awards recipient's written
Department of Justice included in assurance of
regulations at 28 CFR ``Federal compliance and
part 41 and DoD financial specifies what the
regulations at 32 CFR assistance'' assurance includes.
part 56. definition at 32 Note that
CFR 56.3(b). requirements flow
down to subawards
[``recipient,''
defined at 32 CFR
56.3(g), includes
entities receiving
assistance indirectly
through other
recipients].
[[Page 44997]]
2. The Architectural Grant or loan.... Any.............. Construction or ......................
Barriers Act of 1968 alteration of
(42 U.S.C. 4151, et buildings or
seq.). facilities,
except those
restricted to
use only by able-
bodied uniformed
personnel.
Live Organisms--By signing this
agreement or accepting funds
under this agreement, the
recipient assures that it will
comply with applicable
provisions of the following
national policies concerning
live organisms:
a. For human subjects, the Any.............. Any.............. Research, 32 CFR 219.103
Common Federal Policy for development, requires each
the Protection of Human test, or recipient to have a
Subjects, codified by the evaluation Federally approved,
Department of Health and involving live written assurance of
Human Services at 45 CFR human subjects, compliance [it may be
part 46 and implemented by with some HHS-approved, on file
the Department of Defense exceptions [see with HHS; DoD-
at 32 CFR part 219. 32 CFR part 219]. approved, on file
with a DoD Component;
or may need to be
obtained by the
grants officer for
the specific award].
b. For animals:
1. Rules on animal Any.............. Any.............. Research, Prior to making an
acquisition, experimentation, award under which
transport, care, or testing animal-based
handling, and use in 9 involving the research, testing, or
CFR parts 1-4, use of animals. training is to be
Department of performed, DoD
Agriculture rules Directive 3216.1 \1\
implementing the requires
Laboratory Animal administrative review
Welfare Act of 1966 (7 of the proposal by a
U.S.C. 2131-2156), and DoD veterinarian
guidelines in the trained or
National Academy of experienced in
Sciences (NAS) ``Guide laboratory animal
for the Care and Use science and medicine,
of Laboratory as well as a review
Animals'' (1996), by the recipient's
including the Public Institutional Animal
Health Service Policy Care and Use
and Government Committee.
Principles Regarding
the Care and Use of
Animals in Appendix D
to the guide.
2. Prohibitions on the Any.............. Any.............. Use of DoD
purchase or use of appropriations
dogs or cats for for training on
certain medical treatment of
training purposes, in wounds.
Section 8019 (10
U.S.C. 2241 note) of
the Department of
Defense Appropriations
Act, 1991 (Pub. Law
101-511).
3. Rules of the Any.............. Any.............. Activities that
Departments of may involve or
Interior (50 CFR parts impact wildlife
10-24) and Commerce and plants.
(50 CFR parts 217-227)
implementing laws and
conventions on the
taking, possession,
transport, purchase,
sale, export, or
import of wildlife and
plants, including the:
Endangered Species Act
of 1973 (16 U.S.C.
1531-1543); Marine
Mammal Protection Act
(16 U.S.C. 1361-1384);
Lacey Act (18 U.S.C.
42); and Convention on
International Trade in
Endangered Species of
Wild Fauna and Flora.
[[Page 44998]]
Debarment and Suspension--The Any All but foreign Any..............
recipient agrees to comply nonprocurement governments,
with the requirements transaction [see foreign
regarding debarment and ``covered governmental
suspension in Subpart C of 32 transaction'' as entities, and
CFR part 25, which implements specified in others excluded
E.O. 12549 [3 CFR, 1986 Comp., Subpart B of 32 at 32 CFR
p. 189]; E.O. 12689 [3 CFR, CFR part 25, 25.215(a).
1989 Comp., p. 235]; and Sec. especially
2455 of Federal Acquisition sections 25.210
and Streamlining Act of 1994 and 25.215].
(Pub. L. 103-355). The
recipient also agrees to
communicate the requirement to
comply with Subpart C to
persons at the next lower tier
with whom the recipient enters
into transactions that are
``covered transactions'' under
Subpart B of 32 CFR part 25.
Hatch Act--The recipient agrees Grants or loans.. State and local All but employees
to comply with the Hatch Act governments. of educational
(5 U.S.C. 1501-1508 and 7324- or research
7328), as implemented by the institutions
Office of Personnel Management supported by
at 5 CFR part 151, which State; political
limits political activity of subdivision
employees or officers of State thereof; or
or local governments whose religious,
employment is connected to an philanthrop, or
activity financed in whole or cultural
part with Federal funds. organization.
Environmental Standards--By
signing this agreement or
accepting funds under this
agreement, the recipient
assures that it will:
a. Comply with applicable Any Any.............. Any.............. Executive Order 11738
provisions of the Clean nonprocurement establishes
Air Act (42 U.S.C. 7401, transaction [see additional
et seq.) and Clean Water 40 CFR 32.110]. responsibilities for
Act (33 U.S.C. 1251, et grants officers.
seq.), as implemented by
Executive Order 11738 [3
CFR, 1971-1975 Comp., p.
799] and Environmental
Protection Agency (EPA)
rules at Subpart J of 40
CFR part 32.
b. Identify to the awarding
agency any impact this
award may have on:
1. The quality of the Any.............. Any.............. Any actions that The Council on
human environment, and may affect the Environmental
provide help the environment. Quality's regulations
agency may need to for implementing NEPA
comply with the are at 40 C.F.R.
National Environmental parts 1500-1508.
Policy Act (NEPA, at Executive Order 11514
42 U.S.C. 4321, et [3 CFR, 1966-1970
seq.) and to prepare Comp., p. 902], as
Environmental Impact amended by Executive
Statements or other Order 11991, sets
required environmental policies and
documentation. In such procedures for
cases, the recipient considering actions
agrees to take no in the U.S. Executive
action that will have Orders 11988 [3 CFR,
an adverse 1977 Comp., p. 117]
environmental impact and 11990 [3 CFR,
(e.g., physical 1977 Comp., p. 121]
disturbance of a site specify additional
such as breaking of considerations, when
ground) until the actions involve
agency provides floodplains or
written notification wetlands,
of compliance with the respectively.
environmental impact
analysis process.
[[Page 44999]]
2. Flood-prone areas, Grants, Any.............. Awards involving The grants officer
and provide help the cooperative construction, should inform the
agency may need to agreements, and land acquisition recipient that 42
comply with the other or development, U.S.C.4012a prohibits
National Flood ``financial with some awards for
Insurance Act of 1968 assistance'' exceptions [see acquisition or
and Flood Disaster (see 42 U.S.C. 42 U.S.C. 4001, construction in flood-
Protection Act of 1973 4003). et. seq.]. prone areas (Federal
(42 U.S.C. 4001, et Emergency Management
seq.), which require Agency publishes
flood insurance, when lists of such areas
available, for in the Federal
Federally assisted Register), unless
construction or recipient has
acquisition in flood- required insurance.
prone areas. If action is in a
floodplain, Executive
Order 11988 [3 CFR,
1977 Comp., p. 117]
specifies additional
pre-award procedures
for Federal agencies.
Recipients are to
apply requirements to
subawards
(``financial
assistance,'' defined
at 42 U.S.C. 4003,
includes indirect
Federal assistance).
3. Coastal zones, and Grants, State and local Awards that may 16 U.S.C. 1456(d)
provide help the cooperative governments, affect the prohibits approval of
agency may need to agreements, and interstate and coastal zone. projects inconsistent
comply with the other ``Federal other regional with a coastal
Coastal Zone assistance'' agencies. State's approved
Management Act of 1972 [see 16 U.S.C. management program
(16 U.S.C. 1451, et 1456(d)]. for the coastal zone.
seq.), concerning
protection of U.S.
coastal resources.
4. Coastal barriers, Grants, Any.............. Awards that may 16 U.S.C. 3504-3505
and provide help the cooperative affect barriers prohibit new awards
agency may need to agreements, and along the for actions within
comply with the other Atlantic and Coastal Barrier
Coastal Barriers ``financial Gulf coasts and System, except for
Resource Act (16 assistance'' Great Lakes' certain purposes.
U.S.C. 3501, et seq.), (see 16 U.S.C. shores. Requirements flow to
concerning 3502). subawards (16 U.S.C.
preservation of 3502 includes
barrier resources. indirect assistance
as ``financial
assistance'').
5. Any existing or Any.............. Any.............. Awards that may
proposed component of affect existing
the National Wild and or proposed
Scenic Rivers system, element of
and provide help the National Wild
agency may need to and Scenic
comply with the Wild Rivers system.
and Scenic Rivers Act
of 1968 (16 U.S.C.
1271, et seq)..
6. Underground sources Any.............. Any.............. Construction in 42 U.S.C. 300h-3(e)
of drinking water in any area with precludes awards of
areas that have an aquifer that the Federal financial
aquifer that is the EPA finds would assistance for any
sole or principal create public project that the EPA
drinking water source, health hazard, administrator
and provide help the if contaminated. determines may
agency may need to contaminate a sole-
comply with the Safe source aquifer so as
Drinking Water Act (42 to threaten public
U.S.C. 300h-3). health.
Drug-Free Workplace--The Any financial Any.............. Any, except where
recipient agrees to comply assistance, inconsistent
with the requirements including any with
regarding drug-free workplace grant or international
in Subpart B (or Subpart C, if cooperative obligations of
the recipient is an agreement [see the U.S. or the
individual) of 32 CFR part 26, ``award'' as laws or
which implements sec. 5151- broadly defined regulations of a
5160 of the Drug-Free at 32 CFR part foreign
Workplace Act of 1988 (Pub. L. 26.605]. government [see
100-690, Title V, Subtitle D; 32 CFR 26.110].
41 U.S.C. 701, et seq.).
[[Page 45000]]
National Historic Preservation-- Any.............. Any.............. Any construction, 36 CFR part 800
The recipient agrees to acquisition, requires grants
identify to the awarding modernization, officers to get
agency any property listed or or other comments from the
eligible for listing on the activity that Advisory Council on
National Register of Historic may impact a Historic Preservation
Places that will be affected historic before proceeding
by this award, and to provide property. with Federally
any help the awarding agency assisted projects
may need, with respect to this that may affect
award, to comply with Section properties listed on
106 of the National Historic or eligible for
Preservation Act of 1966 (16 listing on the
U.S.C. 470, et seq.), as National Register of
implemented by the Advisory Historic Places.
Council on Historic
Preservation regulations at 36
CFR part 800 and Executive
Order 11593 [3 CFR, 1971-1975
Comp., p. 559].
Officials Not to Benefit--No Grants, Any.............. Any. ......................
member of or delegate to cooperative
Congress, or resident agreements, and
commissioner, shall be other
admitted to any share or part ``agreements''.
of this agreement, or to any
benefit arising from it, in
accordance with 41 U.S.C. 22.
Preference for U.S. Flag Any.............. Any.............. Any agreement ......................
Carriers--Travel supported by under which
U.S. Government funds under international
this agreement shall use U.S.- air travel may
flag air carriers (air be supported by
carriers holding certificates U.S. Government
under 49 U.S.C. 41102) for funds.
international air
transportation of people and
property to the extent that
such service is available, in
accordance with the
International Air
Transportation Fair
Competitive Practices Act of
1974 (49 U.S.C. 40118) and the
interpretative guidelines
issued by the Comptroller
General of the United States
in the March 31, 1981,
amendment to Comptroller
General Decision B138942.
Cargo Preference--The recipient Grants, Any.............. Any award where 46 CFR 381.7 requires
agrees that it will comply cooperative possibility grants officers to
with the Cargo Preference Act agreements, and exists for ocean include appropriate
of 1954 (46 U.S.C. 1241), as other awards transport of clauses in award
implemented by Department of included in 46 items procured documents. It also
Transportation regulations at CFR 381.7. or obtained by requires recipients
46 CFR 381.7, which require or on behalf of to include
that at least 50 percent of the recipient, appropriate clauses
equipment, materials or or any of the in contracts using
commodities procured or recipient's U.S. Government funds
otherwise obtained with U.S. contractors or under agreements,
Government funds under this subcontractors. where ocean transport
agreement, and which may be of procured goods is
transported by ocean vessel, possible [e.g., see
shall be transported on clause at 46 CFR
privately owned U.S.-flag 381.7(b)].
commercial vessels, if
available.
Military Recruiters--[Grants Grants and Domestic Any. ......................
officers shall include the cooperative institution of
exact award provision agreements. higher education
specified at 32 CFR 22.520]. (see 32 CFR
22.520).
Relocation and Real Property Grants, ``State agency'' Any project that 42 U.S.C. 4630 and 49
Acquisition--The recipient cooperative as defined in 49 may result in CFR 24.4, as
assures that it will comply agreements, and CFR part 24 to real property implemented by DoD at
with 49 CFR part 24, which other ``Federal include persons acquisition or 32 CFR part 259,
implements the Uniform financial with authority displacement requires grants
Relocation Assistance and Real assistance'' to acquire where State officers to obtain
Property Acquisition Policies [see 49 CFR property by agency hasn't recipients' assurance
Act of 1970 (42 U.S.C. 4601, 24.2(j)]. eminent domain opted to certify of compliance.
et seq.) and provides for fair under State law. to Dept. of
and equitable treatment of Transportation
persons displaced by Federally in lieu of
assisted programs or persons providing
whose property is acquired as assurance.
a result of such programs.
----------------------------------------------------------------------------------------------------------------
\1\ Electronic copies may be obtained at the Washington Headquarters Services Internet Site http://www.dtic.mil/
whs/directives. Paper copies may be obtained, at cost, from the National Technical Information Service, 5285
Port Royal Road, Springfield, VA 22161.
[[Page 45001]]
PART 25--[AMENDED]
19. The authority citation for part 25 continues to read as
follows:
Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C.
6101 note); E.O. 12549 [3 CFR, 1986 Comp., p. 189]; E.O. 12689 [3
CFR, 1989 Comp., p. 235].
20. Section 25.425 is amended by revising paragraphs (c) and (d)
and adding a paragraph (e) to read as follows:
Sec. 25.425 When do I check to see if a person is excluded or
disqualified?
* * * * *
(c) Approve a lower tier participant if agency approval of the
lower tier participant is required;
(d) Approve a principal in connection with a lower tier transaction
if agency approval of the principal is required; or
(e) Obligate additional funding (e.g., through an incremental
funding action) for a pre-existing covered transaction with an
institution of higher education, as provided in 32 CFR 22.520(e)(2).
PART 32--[AMENDED]
21. The authority citation for part 32 continues to read as
follows:
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
Sec. 32.2 [Amended]
22. Section 32.2 introductory text is amended by revising ``32 CFR
25.105'' to read ``32 CFR 25.1015.''
Appendix A to Part 32 [Amended]
23. Paragraph 8 of Appendix A to part 32 is revised to read as
follows:
Appendix A to Part 32--Contract Provisions
* * * * *
8. Debarment and Suspension (E.O.s 12549 and 12689)--A contract
award with an amount expected to equal or exceed $25,000 and certain
other contract awards (see 32 CFR 25.220) shall not be made to
parties listed on the government-wide Excluded Parties List System,
in accordance with the DoD adoption at 32 CFR part 25 of the
government-wide rule implementing E.O.s 12549 (3 CFR, 1986 Comp., p.
189) and 12689 (3 CFR, 1989 Comp., p. 235), ``Debarment and
Suspension.'' The Excluded Parties List System contains the names of
parties debarred, suspended, or otherwise excluded by agencies, as
well as parties declared ineligible under statutory or regulatory
authority other than E.O. 12549.
PART 33--[AMENDED]
24. The authority citation for part 33 continues to read as
follows:
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
Sec. 33.26 [Amended]
25. Section 33.26, paragraph (b) is amended by revising
``$300,000'' to read ``$500,000''.
Sec. 33.35 [Amended]
26. Section 33.35 is amended by revising ``not make any award or
permit any award (subgrant or contract) at any tier to'' to read
``comply with the requirements of subpart C, 32 CFR part 25, including
the restrictions on entering into a covered transaction with''.
PART 34--[AMENDED]
27. The authority citation for part 34 continues to read as
follows:
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
Sec. 34.16 [Amended]
28. Section 34.16, paragraph (a) is amended by revising
``$300,000'' to read ``$500,000''.
Appendix A to Part 34 [Amended]
29. Paragraph 7 of Appendix A to part 34 is revised to read as
follows:
Appendix A to Part 34--Contract Provisions
* * * * *
7. Debarment and Suspension (E.O.s 12549 and 12689)--A contract
award with an amount expected to equal or exceed $25,000 and certain
other contract awards (see 32 CFR 25.220) shall not be made to
parties listed on the government-wide Excluded Parties List System,
in accordance with the DoD adoption at 32 CFR part 25 of the
government-wide rule implementing E.O.s 12549 (3 CFR, 1986 Comp., p.
189) and 12689 (3 CFR, 1989 Comp., p. 235), ``Debarment and
Suspension.'' The Excluded Parties List System contains the names of
parties debarred, suspended, or otherwise excluded by agencies, as
well as parties declared ineligible under statutory or regulatory
authority other than E.O. 12549.
PART 37--[AMENDED]
30. The authority citation for part 37 continues to read as
follows:
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
31. Section 37.130 is amended by:
a. Redesignating paragraph (b)(2) as (b)(3);
b. Revising paragraph (b)(1) and adding a new (b)(2) to read as
follows:
Sec. 37.130 Which other parts of the DoD Grant and Agreement
Regulations apply to TIAs?
* * * * *
(b) * * *
(1) Part 25 (32 CFR part 25) on nonprocurement debarment and
suspension, which applies because it covers nonprocurement instruments
in general;
(2) Part 26 (32 CFR part 26), on drug-free workplace requirements,
which applies because it covers financial assistance in general; and
* * * * *
32. Appendix D to part 37 is revised to read as follows:
Appendix D to Part 37--What Common National Policy Requirements May
Apply and Need To Be Included in TIAs?
Whether your TIA is a cooperative agreement or another type of
assistance transaction, as discussed in Appendix B to this part, the
terms and conditions of the agreement must provide for recipients'
compliance with applicable Federal statutes and regulations. This
appendix lists some of the more common requirements to aid you in
identifying ones that apply to your TIA. The list is not intended to
be all-inclusive, however, and you may need to consult legal counsel
to verify whether there are others that apply in your situation
(e.g., due to a provision in the appropriations act for the specific
funds that you are using or due to a statute or rule that applies to
a particular program or type of activity).
A. Certifications
One requirement that applies to all TIAs currently requires you
to obtain a certification at the time of proposal. That requirement
is in a Governmentwide common rule about lobbying prohibitions,
which is implemented by the DoD at 32 CFR part 28. The prohibitions
apply to all financial assistance. Appendix A to 32 CFR part 22
includes a sample provision that you may use, to have proposers
incorporate the certification by reference into their proposals.
B. Assurances That Apply to all TIAs
DoD policy is to use certifications, as described in the
preceding paragraphs, only for national policy requirements that
specifically require them. The usual approach to communicating other
national policy requirements to recipients is to incorporate them as
award terms or conditions, or assurances. Appendix B to 32 CFR part
22 lists national policy requirements that commonly apply to grants
and cooperative agreements. It also has suggested language for
assurances to incorporate the requirements in award documents. Of
those requirements, the following six apply to all TIAs:
1. Requirements concerning debarment and suspension in the
Governmentwide common rule that the DoD has codified at 32 CFR part
25. The requirements apply to all nonprocurement transactions.
2. Requirements concerning drug-free workplace in the
Governmentwide common rule that the DoD has codified at 32 CFR part
26. The requirements apply to all financial assistance.
3. Prohibitions on discrimination on the basis of race, color,
or national origin in Title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d, et seq.). These apply to all financial assistance.
They require recipients to flow down the prohibitions to any
subrecipients
[[Page 45002]]
performing a part of the substantive research program (as opposed to
suppliers from whom recipients purchase goods or services). For
further information, see item a. under the heading
``Nondiscrimination'' in Appendix B to 32 CFR part 22.
4. Prohibitions on discrimination on the basis of age, in the
Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.). They apply
to all financial assistance and require flow down to subrecipients.
For further information, see item d. under the heading
``Nondiscrimination'' in Appendix B to 32 CFR part 22.
5. Prohibitions on discrimination on the basis of handicap, in
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). They
apply to all financial assistance and require flow down to
subrecipients. For further information, see item e.1. under the
heading ``Nondiscrimination'' in Appendix B to 32 CFR part 22.
6. Preferences for use of U.S.-flag air carriers in the
International Air Transportation Fair Competitive Practices Act of
1974 (49 U.S.C. 40118), which apply to uses of U.S. Government
funds.
C. Other Assurances
Additional requirements listed in Appendix B to 32 CFR part 22
may apply in certain circumstances, as follows:
1. If construction work is to be done under a TIA or its
subawards, it is subject to the prohibitions in Executive Order
11246 on discrimination on the basis of race, color, religion, sex,
or national origin. For further information, see item b. under the
heading ``Nondiscrimination'' in Appendix B to 32 CFR part 22.
2. If the research involves human subjects or animals, it is
subject to the requirements in item a. or b., respectively, under
the heading ``Live organisms'' in Appendix B to 32 CFR part 22.
3. If the research involves actions that may affect the
environment, it is subject to the National Environmental Policy Act,
which is item b.1. under the heading ``Environmental Standards'' in
Appendix B to 32 CFR part 22. It also may be subject to one or more
of the other requirements in items b.2 through b.6. under that
heading, which concern flood-prone areas, coastal zones, coastal
barriers, wild and scenic rivers, and underground sources of
drinking water.
4. If the project may impact a historic property, it is subject
to the National Historic Preservation Act of 1966 (16 U.S.C. 470, et
seq.), as described under the heading ``National Historic
Preservation'' in Appendix B to 32 CFR part 22.
33. Appendix E to part 37 is revised to read as follows:
Appendix E to Part 37--What Provisions May a Participant Need To
Include when Purchasing Goods or Services Under a TIA?
A. As discussed in Sec. 37.705, you must inform recipients of
any national policy requirements that flow down to their purchases
of goods or services (e.g., supplies or equipment) under their TIAs.
Note that purchases of goods or services differ from subawards,
which are for substantive research program performance.
B. Appendix A to 32 CFR part 34 lists seven national policy
requirements that commonly apply to firms' purchases under grants or
cooperative agreements. Of those seven, two that apply to all
recipients' purchases under TIAs are:
1. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). A contractor
submitting a bid to the recipient for a contract award of $100,000
or more must file a certification with the recipient that it has not
and will not use Federal appropriations for certain lobbying
purposes. The contractor also must disclose any lobbying with non-
Federal funds that takes place in connection with obtaining any
Federal award. For further details, see 32 CFR part 28, the DoD's
codification of the Governmentwide common rule implementing this
amendment.
2. Debarment and suspension. A contract award with an amount
expected to equal or exceed $25,000 and certain other contract
awards (see 32 CFR 25.220) shall not be made to parties listed on
the government-wide Excluded Parties List System, in accordance with
the DoD adoption at 32 CFR part 25 of the government-wide rule
implementing E.O.s 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3
CFR, 1989 Comp., p. 235), ``Debarment and Suspension.'' The Excluded
Parties List System contains the names of parties debarred,
suspended, or otherwise excluded by agencies, as well as parties
declared ineligible under statutory or regulatory authority other
than E.O. 12549.
C. One other requirement applies only in cases where
construction work is to be performed under the TIA with Federal
funds or recipient funds counted toward required cost sharing:
1. Equal Employment Opportunity. Although construction work
should happen rarely under a TIA, the agreements officer in that
case should inform the recipient that Department of Labor
regulations at 41 CFR 60-1.4(b) prescribe a clause that must be
incorporated into construction awards and subawards. Further details
are provided in Appendix B to Part 22 of the DoDGARs (32 CFR part
22), in section b. under the heading ``Nondiscrimination.''
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 04-16933 Filed 7-27-04; 8:45 am]
BILLING CODE 5001-06-P