Grant and agreement regulations; OMB policy directives,

[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]

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.

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:

    1. Adding a new Sec. 21.565 to read as set forth below; and

    2. 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.

    \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 .

  3. Appendix A to part 21 is revised to read as follows:

    Appendix A to Part 21--Instruments to Which DoDGARs Portions Apply

    Which addresses . . DoDGARs . . .

    .

    Applies to . . .

    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.

    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:

    1. Redesignating paragraph (b)(3) as (b)(4);

    2. Redesignating paragraph (b)(2) as (b)(3);

      [[Page 44993]]

    3. 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''.

    4. 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:

    1. Paragraph (a)(1) by revising ``Director of Defense Procurement (DDP)'' to read ``Director of Defense Procurement and Acquisition Policy (DDP&AP)''.

    2. Paragraph (a)(2) by revising ``DDP'' to read ``DDP&AP''.

  7. Section 22.315 is amended by:

    1. Revising paragraph (a) to read as set forth below; and

    2. 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:

    1. Revising paragraph (c)(1) to read as set forth below; and

    2. 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:

    1. Revising paragraphs (a)(2)(ii)(A), (a)(2)(ii)(B), and (a)(2)(ii)(C) to read as set forth below; and

    2. 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:

    1. Revising the introductory text to read as set forth below; and

    2. 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:

    1. In paragraph (a)(3)(ii) by revising ``32 CFR part 25'' to read ``32 CFR part 26''.

    2. 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:

    1. 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.

    2. 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.

    3. 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].

    4. 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].

    5. 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]]

  19. 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:

    1. 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].

    2. 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:

    3. 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.

    4. 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]]

  20. 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]

  21. 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].

  22. 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]

  23. 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]

  24. 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]

  25. Paragraph 8 of Appendix A to part 32 is revised to read as follows:

    Appendix A to Part 32--Contract Provisions

    * * * * *

  26. 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]

  27. 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]

  28. Section 33.26, paragraph (b) is amended by revising ``$300,000'' to read ``$500,000''.

    Sec. 33.35 [Amended]

  29. 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]

  30. 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]

  31. Section 34.16, paragraph (a) is amended by revising ``$300,000'' to read ``$500,000''.

    Appendix A to Part 34 [Amended]

  32. Paragraph 7 of Appendix A to part 34 is revised to read as follows:

    Appendix A to Part 34--Contract Provisions

    * * * * *

  33. 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]

  34. The authority citation for part 37 continues to read as follows:

    Authority: 5 U.S.C. 301 and 10 U.S.C. 113.

  35. Section 37.130 is amended by:

    1. Redesignating paragraph (b)(2) as (b)(3);

    2. 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 * * * * *

  36. 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).

    1. 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.

    2. 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:

  37. 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.

  38. 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.

  39. 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.

  40. 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.

  41. 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.

  42. 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.

    1. Other Assurances

    Additional requirements listed in Appendix B to 32 CFR part 22 may apply in certain circumstances, as follows:

  43. 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.

  44. 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.

  45. 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.

  46. 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.

  47. 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?

    1. 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.

    2. 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:

  48. 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.

  49. 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.

    1. 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:

  50. 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

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