[Title 2 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2011 Edition]
[From the U.S. Government Publishing Office]



[[Page 1]]

          

          Title 2




                         Revised as of January 1, 2011


          Grants and Agreements
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2011
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



                                                                    Page
  Explanation.................................................      vi

  Title 2:
          SUBTITLE A--Office of Management and Budget Guidance 
          for Grants and Agreements                                  1
          Chapter I--Office of Management and Budget 
          Governmentwide Guidance for Grants and Agreements          9
          Chapter II--Office of Management and Budget 
          Circulars and Guidance                                    75
    SUBTITLE B--Federal Agency Regulations for Grants and 
      Agreements
          Chapter III--Department of Health and Human Services     213
          Chapter IV--Department of Agriculture                    221
          Chapter VI--Department of State                          231
          Chapter VIII--Department of Veterans Affairs             235
          Chapter IX--Department of Energy                         243
          Chapter XI--Department of Defense                        251
          Chapter XII--Department of Transportation                257
          Chapter XIII--Department of Commerce                     261
          Chapter XIV--Department of the Interior                  267
          Chapter XV--Environmental Protection Agency              279

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          Chapter XVIII--National Aeronautics and Space 
          Administration                                           291
          Chapter XX--United States Nuclear Regulatory 
          Commission                                               295
          Chapter XXII--Corporation for National and Community 
          Service                                                  299
          Chapter XXIII--Social Security Administration            305
          Chapter XXIV--Department of Housing and Urban 
          Development                                              311
          Chapter XXV--National Science Foundation                 321
          Chapter XXVI--National Archives and Records 
          Administration                                           325
          Chapter XXVII--Small Business Administration             329
          Chapter XXVIII--Department of Justice                    335
          Chapter XXX--Department of Homeland Security             339
          Chapter XXXI--Institute of Museum and Library 
          Services                                                 343
          Chapter XXXII--National Endowment for the Arts           349
          Chapter XXXIII--National Endowment for the 
          Humanities                                               353
          Chapter XXXV--Export-Import Bank of the United 
          States                                                   359
          Chapter XXXVII--Peace Corps                              363
          Chapter LVIII--Election Assistance Commission            367
  Finding Aids:
      Table of CFR Titles and Chapters........................     375
      Alphabetical List of Agencies Appearing in the CFR......     395
      List of CFR Sections Affected...........................     405

[[Page v]]





                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 2 CFR 1.100 refers 
                       to title 2, part 1, 
                       section 100.

                     ----------------------------

[[Page vi]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2011), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vii]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.

[[Page viii]]

    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
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the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
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    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
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register.

    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    January 1, 2011.







[[Page ix]]



                               THIS TITLE

    Title 2--Grants and Agreements is composed of one volume. This 
volume is comprised of Subtitle A--Office of Management and Budget 
Guidance for Grants and Agreements and Subtitle B--Federal Agency 
Regulations for Grants and Agreements. The contents of this volume 
represents all current regulations codified under this title of the CFR 
as of January 1, 2011.

    For this volume, Susannah C. Hurley was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.

[[Page 1]]



                     TITLE 2--GRANTS AND AGREEMENTS




  --------------------------------------------------------------------

  SUBTITLE A--Office of Management and Budget Guidance for Grants and 
                                Agreements

                                                                    Part

chapter i--Office of Management and Budget Governmentwide 
  Guidance for Grants and Agreements........................         175

chapter ii--Office of Management and Budget Circulars and 
  Guidance..................................................         215

    SUBTITLE B--Federal Agency Regulations for Grants and Agreements 

chapter iii--Department of Health and Human Services........         376

chapter iv--Department of Agriculture.......................         417

chapter vi--Department of State.............................         601

chapter viii--Department of Veterans Affairs................         801

chapter ix--Department of Energy............................         901

chapter xi--Department of Defense...........................        1125

chapter xii--Department of Transportation...................        1200

chapter xiii--Department of Commerce........................        1326

chapter xiv--Department of the Interior.....................        1400

chapter xv--Environmental Protection Agency.................        1532

chapter xviii--National Aeronautics and Space Administration        1880

[[Page 2]]


chapter xx--United States Nuclear Regulatory Commission.....        2000

chapter xxii--Corporation for National and Community Service        2200

chapter xxiii--Social Security Administration...............        2336

XXX.........................................................        2339

chapter xxiv--Department of Housing and Urban Development...        2424

chapter xxv--National Science Foundation....................        2520

chapter xxvi--National Archives and Records Administration..        2600

chapter xxvii--Small Business Administration................        2700

chapter xxviii--Department of Justice.......................        2867

chapter xxx--Department of Homeland Security................        3000

chapter xxxi--Institute of Museum and Library Services......        3185

chapter xxxii--National Endowment for the Arts..............        3254

chapter xxxiii--National Endowment for the Humanities.......        3369

chapter xxxv--Export-Import Bank of the United States.......        3513

chapter xxxvii--Peace Corps.................................        3700

chapter lviii--Election Assistance Commission...............        5800

[[Page 3]]

  Subtitle A--Office of Management and Budget Guidance for Grants and 
                               Agreements

  --------------------------------------------------------------------


1               About Title 2 of the Code of Federal 
                    Regulations and Subtitle A..............           5

[[Page 5]]



PART 1_ABOUT TITLE 2 OF THE CODE OF FEDERAL REGULATIONS AND SUBTITLE A--Table of Contents



              Subpart A_Introduction to Title 2 of the CFR

Sec.
1.100 Content of this title.
1.105 Organization and subtitle content.
1.110 Issuing authorities.

                  Subpart B_Introduction to Subtitle A

1.200 Purpose of chapters I and II.
1.205 Applicability to grants and other funding instruments.
1.210 Applicability to Federal agencies and others.
1.215 Relationship to previous issuances.
1.220 Federal agency implementation of this subtitle.
1.230 Maintenance of this subtitle.

         Subpart C_Responsibilities of OMB and Federal Agencies

1.300 OMB responsibilities.
1.305 Federal agency responsibilities.

    Authority: 31 U.S.C. 503; 31 U.S.C. 1111; 41 U.S.C. 405; 
Reorganization Plan No. 2 of 1970; E.O. 11541, 35 FR 10737, 3 CFR, 1966-
1970, p. 939.

    Source: 69 FR 26280, May 11, 2004, unless otherwise noted.



              Subpart A_Introduction to Title 2 of the CFR



Sec. 1.100  Content of this title.

    This title contains--
    (a) Office of Management and Budget (OMB) guidance to Federal 
agencies on government-wide policies and procedures for the award and 
administration of grants and agreements; and
    (b) Federal agency regulations implementing that OMB guidance.



Sec. 1.105  Organization and subtitle content.

    (a) This title is organized into two subtitles.
    (b) The OMB guidance described in Sec. 1.100(a) is published in 
subtitle A. Publication of the OMB guidance in the CFR does not change 
its nature--it is guidance and not regulation.
    (c) Each Federal agency that publishes regulations implementing the 
OMB guidance has a chapter in subtitle B in which it issues those 
regulations. The Federal agency regulations in subtitle B differ in 
nature from the OMB guidance in subtitle A because the OMB guidance is 
not regulatory (Federal agency regulations in subtitle B may give 
regulatory effect to the OMB guidance, to the extent that the agency 
regulations require compliance with all or portions of the guidance).



Sec. 1.110  Issuing authorities.

    OMB issues this subtitle. Each Federal agency that has a chapter in 
subtitle B of this title issues that chapter.



                  Subpart B_Introduction to Subtitle A



Sec. 1.200  Purpose of chapters I and II.

    (a) Chapters I and II of subtitle A provide OMB guidance to Federal 
agencies that helps ensure consistent and uniform government-wide 
policies and procedures for management of the agencies' grants and 
agreements.
    (b) There are two chapters for publication of the guidance because 
portions of it may be revised as a result of ongoing efforts to 
streamline and simplify requirements for the award and administration of 
grants and other financial assistance (and thereby implement the Federal 
Financial Assistance Management Improvement Act of 1999, Pub. L. 106-
107).
    (c) The OMB guidance in its initial form--before completion of 
revisions described in paragraph (b) of this section--is published in 
chapter II of this subtitle. When revisions to a part of the guidance 
are finalized, that part is published in chapter I and removed from 
chapter II.



Sec. 1.205  Applicability to grants and other funding instruments.

    The types of instruments that are subject to the guidance in this 
subtitle vary from one portion of the guidance to another (note that 
each part identifies the types of instruments to which it applies). All 
portions of the guidance apply to grants and cooperative agreements, 
some portions also apply to other types of financial assistance or 
nonprocurement instruments, and some portions also apply to procurement 
contracts. For example, the:

[[Page 6]]

    (a) Guidance on debarment and suspension in part 180 of this 
subtitle applies broadly to all financial assistance and other 
nonprocurement transactions, and not just to grants and cooperative 
agreements.
    (b) Cost principles in parts 220, 225 and 230 of this subtitle apply 
to procurement contracts, as well as to financial assistance, although 
those principles are implemented for procurement contracts through the 
Federal Acquisition Regulation in title 48 of the CFR, rather than 
through Federal agency regulations on grants and agreements in this 
title.

[70 FR 51863, Aug. 31, 2005]



Sec. 1.210  Applicability to Federal agencies and others.

    (a) This subtitle contains guidance that directly applies only to 
Federal agencies.
    (b) The guidance in this subtitle may affect others through each 
Federal agency's implementation of the guidance, portions of which may 
apply to--
    (1) The agency's awarding or administering officials;
    (2) Non-Federal entities that receive or apply for the agency's 
grants or agreements or receive subawards under those grants or 
agreements; or
    (3) Any other entities involved in agency transactions subject to 
the guidance in this chapter.



Sec. 1.215  Relationship to previous issuances.

    Although some of the guidance was organized differently within OMB 
circulars or other documents, much of the guidance in this subtitle 
existed prior to the establishment of title 2 of the CFR. Specifically:

------------------------------------------------------------------------
                                                     Previously was in *
      Guidance in * * *             On * * *                 * *
------------------------------------------------------------------------
(a) Chapter I, part 180.....  Nonprocurement        OMB guidance that
                               debarment and         conforms with the
                               suspension.           government-wide
                                                     common rule (see 60
                                                     FR 33036, June 26,
                                                     1995).
(b) Chapter I, part 182.....  Drug-free workplace   OMB guidance (54 FR
                               requirements.         4946, January 31,
                                                     1989) and a
                                                     government-wide
                                                     common rule (as
                                                     amended at 68 FR
                                                     66534, November 26,
                                                     2003).
(c) Chapter II, part 215....  Administrative        OMB Circular A-110.
                               requirements for
                               grants and
                               agreements.
(d) Chapter II, part 220....  Cost principles for   OMB Circular A-21.
                               educational
                               institutions.
(e) Chapter II, part 225....  Cost principles for   OMB Circular A-87.
                               State, local, and
                               Indian tribal
                               governments.
(f) Chapter II, part 230....  Cost principles for   OMB Circular A-122.
                               non-profit
                               organizations.
(g) [Reserved]
------------------------------------------------------------------------


[74 FR 28149, June 15, 2009]



Sec. 1.220  Federal agency implementation of this subtitle.

    A Federal agency that awards grants and agreements subject to the 
guidance in this subtitle implements the guidance in agency regulations 
in subtitle B of this title and/or in policy and procedural issuances, 
such as internal instructions to the agency's awarding and administering 
officials. An applicant or recipient would see the effect of that 
implementation in the organization and content of the agency's 
announcements of funding opportunities and in its award terms and 
conditions.



Sec. 1.230  Maintenance of this subtitle.

    OMB issues guidance in this subtitle after publication in the 
Federal Register. Any portion of the guidance that has a potential 
impact on the public is published with an opportunity for public 
comment.



         Subpart C_Responsibilities of OMB and Federal Agencies



Sec. 1.300  OMB responsibilities.

    OMB is responsible for:
    (a) Issuing and maintaining the guidance in this subtitle, as 
described in Sec. 1.230.

[[Page 7]]

    (b) Interpreting the policy requirements in this subtitle.
    (c) Reviewing Federal agency regulations implementing the 
requirements of this subtitle, as required by Executive Order 12866.
    (d) Conducting broad oversight of government-wide compliance with 
the guidance in this subtitle.
    (e) Performing other OMB functions specified in this subtitle.



Sec. 1.305  Federal agency responsibilities.

    The head of each Federal agency that awards and administers grants 
and agreements subject to the guidance in this subtitle is responsible 
for:
    (a) Implementing the guidance in this subtitle.
    (b) Ensuring that the agency's components and subcomponents comply 
with the agency's implementation of the guidance.
    (c) Performing other functions specified in this subtitle.

[[Page 9]]



 CHAPTER I--OFFICE OF MANAGEMENT AND BUDGET GOVERNMENTWIDE GUIDANCE FOR 
                          GRANTS AND AGREEMENTS




  --------------------------------------------------------------------

                SUBCHAPTER A--GENERAL MATTERS [RESERVED]
Part                                                                Page
2-19

 [Reserved]

                SUBCHAPTER B--PRE-AWARD RESPONSIBILITIES
20-24

 [Reserved]

25              Universal identifier and central contractor 
                    registration............................          11
26-39

 [Reserved]

            SUBCHAPTER C--AWARD CONTENT AND FORMAT [RESERVED]
40-59

 [Reserved]

                SUBCHAPTER D--POST-AWARD RESPONSIBILITIES
60-79

 [Reserved]

                SUBCHAPTER E--COST PRINCIPLES [RESERVED]
80-99

 [Reserved]

               SUBCHAPTER F--AUDIT REQUIREMENTS [RESERVED]
100-119

 [Reserved]

               SUBCHAPTER G--NATIONAL POLICY REQUIREMENTS
100-169

 [Reserved]

170             Reporting subaward and Executive 
                    compensation information................          15
171-174

 [Reserved]

175             Award term for trafficking in persons.......          16
176             Award terms for assistance agreements that 
                    include funds under the American 
                    Recovery and Reinvestment Act of 2009, 
                    Public Law 111-5........................          16
177-179

[Reserved]

[[Page 10]]

180             OMB guidelines to agencies on governmentwide 
                    debarment and suspension 
                    (nonprocurement)........................          16
181

[Reserved]

182             Governmentwide requirements for drug-free 
                    workplace (financial assistance)........          16
183-199

[Reserved]

[[Page 11]]






                 Subchapter A_General matters [Reserved]
                          PARTS 2	19 [Reserved]



                 Subchapter B_Pre-award responsibilities
                         PARTS 20	24 [Reserved]



PART 25_UNIVERSAL IDENTIFIER AND CENTRAL CONTRACTOR REGISTRATION--Table of Contents



                            Subpart A_General

Sec.
25.100 Purposes of this part.
25.105 Types of awards to which this part applies.
25.110 Types of recipient and subrecipient entities to which this part 
          applies.
25.115 Deviations.

                            Subpart B_Policy

25.200 Requirements for program announcements, regulations, and 
          application instructions.
25.205 Effect of noncompliance with a requirement to obtain a DUNS 
          number or register in the CCR.
25.210 Authority to modify agency application forms or formats.
25.215 Requirements for agency information systems.
25.220 Use of award term.

                          Subpart C_Definitions

25.300 Agency.
25.305 Award.
25.310 Central Contractor Registration (CCR).
25.315 Data Universal Numbering System (DUNS) Number.
25.320 Entity.
25.325 For-profit organization.
25.330 Foreign public entity.
25.335 Indian Tribe (or ``Federally recognized Indian Tribe'').
25.340 Local government.
25.345 Nonprofit organization.
25.350 State.
25.355 Subaward.
25.360 Subrecipient.

Appendix A to Part 25--Award Term

    Authority: Pub. L. 109-282; 31 U.S.C. 6102.

    Source: 75 FR 55673, Sept. 14, 2010, unless otherwise noted.



                            Subpart A	General



Sec. 25.100  Purposes of this part.

    This part provides guidance to agencies to establish:
    (a) The Dun and Bradstreet (D&B) Data Universal Numbering System 
(DUNS) number as a universal identifier for Federal financial assistance 
applicants, as well as recipients and their direct subrecipients.
    (b) The Central Contractor Registration (CCR) as the repository for 
standard information about applicants and recipients.



Sec. 25.105  Types of awards to which this part applies.

    This part applies to an agency's grants, cooperative agreements, 
loans, and other types of Federal financial assistance included in the 
definition of ``award'' in Sec. 25.305. The requirements in this part 
must be implemented for grants and cooperative agreements by October 1, 
2010. The requirements in this part must be implemented for all other 
award forms listed in Sec. 25.200 requirement at a date to be specified 
in the future.



Sec. 25.110  Types of recipient and subrecipient entities to which this part applies.

    (a) General. Through an agency's implementation of the guidance in 
this part, this part applies to all entities, other than those exempted 
in paragraphs (b), (c), and (d) of this section, that--
    (1) Apply for or receive agency awards; or
    (2) Receive subawards directly from recipients of those agency 
awards.
    (b) Exemptions for individuals. None of the requirements in this 
part apply to an individual who applies for or receives Federal 
financial assistance as a

[[Page 12]]

natural person (i.e., unrelated to any business or non-profit 
organization he or she may own or operate in his or her name).
    (c) Exemptions for Federal agencies. The requirement in this part to 
maintain a current registration in the CCR does not apply to an agency 
of the Federal Government that receives an award from another agency.
    (d) Other exemptions. (1) Under a condition identified in paragraph 
(d)(2) of this section, an agency may exempt an entity from an 
applicable requirement to obtain a DUNS number, register in the CCR, or 
both.
    (i) In that case, the agency must use a generic DUNS number in data 
it reports to USASpending.gov if reporting for a prime award to the 
entity is required by the Federal Funding Accountability and 
Transparency Act (Pub. L. 109-282, hereafter cited as ``Transparency 
Act'').
    (ii) Agency use of a generic DUNS should be used rarely for prime 
award reporting because it prevents prime awardees from being able to 
fulfill the subward or executive compensation reporting required by the 
Transparency Act.
    (2) The conditions under which an agency may exempt an entity are--
    (i) For any entity, if the agency determines that it must protect 
information about the entity from disclosure, to avoid compromising 
classified information or national security or jeopardizing the personal 
safety of the entity's clients.
    (ii) For a foreign entity applying for or receiving an award or 
subaward for a project or program performed outside the United States 
valued at less than $25,000, if the agency deems it to be impractical 
for the entity to comply with the requirement(s).
    (3) Agencies' use of generic DUNS numbers, as described in 
paragraphs (d)(1) and (2) of this section, should be rare. Having a 
generic DUNS number limits a recipient's ability to use Governmentwide 
systems that are needed to comply with some reporting requirements.



Sec. 25.115  Deviations.

    Deviations from this part require the prior approval of the Office 
of Management and Budget (OMB).



                            Subpart B_Policy



Sec. 25.200  Requirements for program announcements, regulations, and application instructions.

    (a) Each agency that awards types of Federal financial assistance 
included in the definition of ``award'' in Sec. 25.305 must include the 
requirements described in paragraph (b) of this section in each program 
announcement, regulation, or other issuance containing instructions for 
applicants that either:
    (1) Is issued on or after the effective date of this part; or
    (2) Has application or plan due dates after October 1, 2010.
    (b) The program announcement, regulation, or other issuance must 
require each entity that applies and does not have an exemption under 
Sec. 25.110 to:
    (1) Be registered in the CCR prior to submitting an application or 
plan;
    (2) Maintain an active CCR registration with current information at 
all times during which it has an active Federal award or an application 
or plan under consideration by an agency; and
    (3) Provide its DUNS number in each application or plan it submits 
to the agency.
    (c) For purposes of this policy:
    (1) The applicant is the entity that meets the agency's or program's 
eligibility criteria and has the legal authority to apply and to receive 
the award. For example, if a consortium applies for an award to be made 
to the consortium as the recipient, the consortium must have a DUNS 
number. If a consortium is eligible to receive funding under an agency 
program but the agency's policy is to make the award to a lead entity 
for the consortium, the DUNS number of the lead entity will be used.
    (2) A ``program announcement'' is any paper or electronic issuance 
that an

[[Page 13]]

agency uses to announce a funding opportunity, whether it is called a 
``program announcement,'' ``notice of funding availability,'' ``broad 
agency announcement,'' ``research announcement,'' ``solicitation,'' or 
some other term.
    (3) To remain registered in the CCR database after the initial 
registration, the applicant is required to review and update on an 
annual basis from the date of initial registration or subsequent updates 
its information in the CCR database to ensure it is current, accurate 
and complete.



Sec. 25.205  Effect of noncompliance with a requirement to obtain a DUNS number or register in the CCR.

    (a) An agency may not make an award to an entity until the entity 
has complied with the requirements described in Sec. 25.200 to provide 
a valid DUNS number and maintain an active CCR registration with current 
information (other than any requirement that is not applicable because 
the entity is exempted under Sec. 25.110).
    (b) At the time an agency is ready to make an award, if the intended 
recipient has not complied with an applicable requirement to provide a 
DUNS number or maintain an active CCR registration with current 
information, the agency:
    (1) May determine that the applicant is not qualified to receive an 
award; and
    (2) May use that determination as a basis for making an award to 
another applicant.



Sec. 25.210  Authority to modify agency application forms or formats.

    To implement the policies in Sec. Sec. 25.200 and 25.205, an agency 
may add a DUNS number field to application forms or formats previously 
approved by OMB, without having to obtain further approval to add the 
field.



Sec. 25.215  Requirements for agency information systems.

    Each agency that makes awards (as defined in Sec. 25.325) must 
ensure that systems processing information related to the awards, and 
other systems as appropriate, are able to accept and use the DUNS number 
as the universal identifier for financial assistance applicants and 
recipients.



Sec. 25.220  Use of award term.

    (a) To accomplish the purposes described in Sec. 25.100, an agency 
must include in each award (as defined in Sec. 25.305) the award term 
in appendix A to this part.
    (b) An agency may use different letters and numbers than those in 
appendix A to this part to designate the paragraphs of the award term, 
if necessary, to conform the system of paragraph designations with the 
one used in other terms and conditions in the agency's awards.



                          Subpart C_Definitions



Sec. 25.300  Agency.

    Agency means a Federal agency as defined at 5 U.S.C. 551(1) and 
further clarified by 5 U.S.C. 552(f).



Sec. 25.305  Award.

    (a) Award, for the purposes of this part, means an award of Federal 
financial assistance that a non-Federal entity described in Sec. 
25.110(a) receives or administers in the form of--
    (1) A grant;
    (2) A cooperative agreement (which does not include a cooperative 
research and development agreement pursuant to the Federal Technology 
Transfer Act of 1986, as amended (15 U.S.C. 3710a));
    (3) A loan;
    (4) A loan guarantee;
    (5) A subsidy;
    (6) Insurance;
    (7) Food commodities;
    (8) A direct appropriation;
    (9) Assessed or voluntary contributions; or
    (10) Any other financial assistance transaction that authorizes the 
non-Federal entity's expenditure of Federal funds.
    (b) An Award does not include:
    (1) Technical assistance, which provides services in lieu of money; 
and
    (2) A transfer of title to Federally owned property provided in lieu 
of money, even if the award is called a grant.

[[Page 14]]



Sec. 25.310  Central Contractor Registration (CCR).

    Central Contractor Registration (CCR) has the meaning given in 
paragraph C.1 of the award term in appendix A to this part.



Sec. 25.315  Data Universal Numbering System (DUNS) Number.

    Data Universal Numbering System (DUNS) Number has the meaning given 
in paragraph C.2 of the award term in appendix A to this part.



Sec. 25.320  Entity.

    Entity, as it is used in this part, has the meaning given in 
paragraph C.3 of the award term in appendix A to this part.



Sec. 25.325  For-profit organization.

    For-profit organization means a non-Federal entity organized for 
profit. It includes, but is not limited to:
    (a) An ``S corporation'' incorporated under Subchapter S of the 
Internal Revenue Code;
    (b) A corporation incorporated under another authority;
    (c) A partnership;
    (d) A limited liability corporation or partnership; and
    (e) A sole proprietorship.



Sec. 25.330  Foreign public entity.

    Foreign public entity means:
    (a) A foreign government or foreign governmental entity;
    (b) A public international organization, which is an organization 
entitled to enjoy privileges, exemptions, and immunities as an 
international organization under the International Organizations 
Immunities Act (22 U.S.C. 288-288f);
    (c) An entity owned (in whole or in part) or controlled by a foreign 
government; and
    (d) Any other entity consisting wholly or partially of one or more 
foreign governments or foreign governmental entities.



Sec. 25.335  Indian Tribe (or ``Federally recognized Indian Tribe'').

    Indian Tribe (or ``Federally recognized Indian Tribe'') means any 
Indian Tribe, band, nation, or other organized group or community, 
including any Alaskan Native village or regional or village corporation 
(as defined in, or established under, the Alaskan Native Claims 
Settlement Act (43 U.S.C. 1601, et seq.)) that is recognized by the 
United States as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.



Sec. 25.340  Local government.

    Local government means a:
    (a) County;
    (b) Borough;
    (c) Municipality;
    (d) City;
    (e) Town;
    (f) Township;
    (g) Parish;
    (h) Local public authority, including any public housing agency 
under the United States Housing Act of 1937;
    (i) Special district;
    (j) School district;
    (k) Intrastate district;
    (l) Council of governments, whether or not incorporated as a 
nonprofit corporation under State law; and
    (m) Any other instrumentality of a local government.



Sec. 25.345  Nonprofit organization.

    Nonprofit organization--
    (a) Means any corporation, trust, association, cooperative, or other 
organization that--
    (1) Is operated primarily for scientific, educational, service, 
charitable, or similar purposes in the public interest;
    (2) Is not organized primarily for profit; and
    (3) Uses net proceeds to maintain, improve, or expand the operations 
of the organization.
    (b) Includes nonprofit--
    (1) Institutions of higher education;
    (2) Hospitals; and
    (3) Tribal organizations other than those included in the definition 
of ``Indian Tribe.''



Sec. 25.350  State.

    State means--
    (a) Any State of the United States;
    (b) The District of Columbia;
    (c) Any agency or instrumentality of a State other than a local 
government

[[Page 15]]

or State-controlled institution of higher education;
    (d) The Commonwealths of Puerto Rico and the Northern Mariana 
Islands; and
    (e) The United States Virgin Islands, Guam, American Samoa, and a 
territory or possession of the United States.



Sec. 25.355  Subaward.

    Subaward has the meaning given in paragraph C.4 of the award term in 
appendix A to this part.



Sec. 25.360  Subrecipient.

    Subrecipient has the meaning given in paragraph C.5 of the award 
term in appendix A to this part.



                 Sec. Appendix A to Part 25--Award Term

I. Central Contractor Registration and Universal Identifier Requirements

        A. Requirement for Central Contractor Registration (CCR)

    Unless you are exempted from this requirement under 2 CFR 25.110, 
you as the recipient must maintain the currency of your information in 
the CCR until you submit the final financial report required under this 
award or receive the final payment, whichever is later. This requires 
that you review and update the information at least annually after the 
initial registration, and more frequently if required by changes in your 
information or another award term.

    B. Requirement for Data Universal Numbering System (DUNS) Numbers

    If you are authorized to make subawards under this award, you:
    1. Must notify potential subrecipients that no entity (see 
definition in paragraph C of this award term) may receive a subaward 
from you unless the entity has provided its DUNS number to you.
    2. May not make a subaward to an entity unless the entity has 
provided its DUNS number to you.

                             C. Definitions

    For purposes of this award term:
    1. Central Contractor Registration (CCR) means the Federal 
repository into which an entity must provide information required for 
the conduct of business as a recipient. Additional information about 
registration procedures may be found at the CCR Internet site (currently 
at http://www.ccr.gov).
    2. Data Universal Numbering System (DUNS) number means the nine-
digit number established and assigned by Dun and Bradstreet, Inc. (D&B) 
to uniquely identify business entities. A DUNS number may be obtained 
from D&B by telephone (currently 866-705-5711) or the Internet 
(currently at http://fedgov.dnb.com/webform).
    3. Entity, as it is used in this award term, means all of the 
following, as defined at 2 CFR part 25, subpart C:
    a. A Governmental organization, which is a State, local government, 
or Indian Tribe;
    b. A foreign public entity;
    c. A domestic or foreign nonprofit organization;
    d. A domestic or foreign for-profit organization; and
    e. A Federal agency, but only as a subrecipient under an award or 
subaward to a non-Federal entity.
    4. Subaward:
    a. This term means a legal instrument to provide support for the 
performance of any portion of the substantive project or program for 
which you received this award and that you as the recipient award to an 
eligible subrecipient.
    b. The term does not include your procurement of property and 
services needed to carry out the project or program (for further 
explanation, see Sec. ----.210 of the attachment to OMB Circular A-133, 
``Audits of States, Local Governments, and Non-Profit Organizations'').
    c. A subaward may be provided through any legal agreement, including 
an agreement that you consider a contract.
    5. Subrecipient means an entity that:
    a. Receives a subaward from you under this award; and
    b. Is accountable to you for the use of the Federal funds provided 
by the subaward.

                         PARTS 26	39 [Reserved]



            Subchapter C_Award content and format [Reserved]


PARTS 40	59 [RESERVED]--Table of Contents



[[Page 16]]



                Subchapter D_Post-award responsibilities


PARTS 60	79 [RESERVED]--Table of Contents





                 Subchapter E_Cost Principles [Reserved]


PARTS 80	99 [RESERVED]--Table of Contents





               Subchapter F_Audit Requirements [Reserved]


PARTS 100	119 [RESERVED]--Table of Contents



                        PARTS 100	169 [RESERVED]



PART 170_REPORTING SUBAWARD AND EXECUTIVE COMPENSATION INFORMATION--Table of Contents



                            Subpart A_General

Sec.
170.100 Purposes of this part.
170.105 Types of awards to which this part applies.
170.110 Types of entities to which this part applies.
170.115 Deviations.

                            Subpart B_Policy

170.200 Requirements for program announcements, regulations, and 
          application instructions.
170.220 Award term.

                          Subpart C_Definitions

170.300 Agency.
170.305 Award.
170.310 Entity.
170.315 Executive.
170.320 Federal financial assistance subject to the Transparency Act.
170.325 Subaward.
170.330 Total compensation.

Appendix A to Part 170--Award term

    Authority: Pub. L. 109-282; 31 U.S.C. 6102.

    Source: 75 FR 55669, Sept. 14, 2010, unless otherwise noted.



                            Subpart A_General



Sec. 170.100  Purposes of this part.

    This part provides guidance to agencies to establish requirements 
for recipients' reporting of information on subawards and executive 
total compensation, as required by the Federal Funding Accountability 
and Transparency Act of 2006 (Pub. L. 109-282), as amended by section 
6202 of Public Law 110-252, hereafter referred to as ``the Transparency 
Act''.



Sec. 170.105  Types of awards to which this part applies.

    This part applies to an agency's grants, cooperative agreements, 
loans, and other forms of Federal financial assistance subject to the 
Transparency Act, as defined in Sec. 170.320.



Sec. 170.110  Types of entities to which this part applies.

    (a) General. Through an agency's implementation of the guidance in 
this part, this part applies to all entities, other than those excepted 
in paragraph (b) of this section, that--
    (1) Apply for or receive agency awards; or
    (2) Receive subawards under those awards.
    (b) Exceptions. (1) None of the requirements in this part apply to 
an individual who applies for or receives an award as a natural person 
(i.e., unrelated to any business or non-profit organization he or she 
may own or operate in his or her name).
    (2) None of the requirements regarding reporting names and total 
compensation of an entity's five most highly compensated executives 
apply unless in the entity's preceding fiscal year, it received--
    (i) 80 percent or more of its annual gross revenue in Federal 
procurement

[[Page 17]]

contracts (and subcontracts) and Federal financial assistance awards 
subject to the Transparency Act, as defined at Sec. 170.320 (and 
subawards); and
    (ii) $25,000,000 or more in annual gross revenue from Federal 
procurement contracts (and subcontracts) and Federal financial 
assistance awards subject to the Transparency Act, as defined at Sec. 
170.320; and
    (3) The public does not have access to information about the 
compensation of the senior executives through periodic reports filed 
under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 
U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 
1986.



Sec. 170.115  Deviations.

    Deviations from this part require the prior approval of the Office 
of Management and Budget (OMB).



                            Subpart B_Policy



Sec. 170.200  Requirements for program announcements, regulations, and application instructions.

    (a) Each agency that makes awards of Federal financial assistance 
subject to the Transparency Act must include the requirements described 
in paragraph (b) of this section in each program announcement, 
regulation, or other issuance containing instructions for applicants:
    (1) Under which awards may be made that are subject to Transparency 
Act reporting requirements; and
    (2) That either:
    (i) Is issued on or after the effective date of this part; or
    (ii) Has application or plan due dates after October 1, 2010.
    (b) The program announcement, regulation, or other issuance must 
require each entity that applies and does not have an exception under 
Sec. 170.110(b) to ensure they have the necessary processes and systems 
in place to comply with the reporting requirements should they receive 
funding.
    (c) Federal agencies that obtain post-award data on subaward 
obligations outside of this policy should take the necessary steps to 
ensure that their recipients are not required, due to the combination of 
agency-specific and Transparency Act reporting requirements, to submit 
the same or similar data multiple times during a given reporting period.



Sec. 170.220  Award term.

    (a) To accomplish the purposes described in Sec. 170.100, an agency 
must include the award term in appendix A to this part in each award to 
a non-Federal entity under which the total funding will include $25,000 
or more in Federal funding at any time during the project or program 
period.
    (b) An agency--
    (1) Consistent with paragraph (a) of this section, is not required 
to include the award term in appendix A to this part if it determines 
that there is no possibility that the total amount of Federal funding 
under the award will equal or exceed $25,000. However, the agency must 
subsequently amend the award to add the award term if changes in 
circumstances increase the total Federal funding under the award to 
$25,000 or more during the project or program period.



                          Subpart C_Definitions



Sec. 170.300  Agency.

    Agency means a Federal agency as defined at 5 U.S.C. 551(1) and 
further clarified by 5 U.S.C. 552(f).



Sec. 170.305  Award.

    Award, for the purposes of this part, effective October 1, 2010, 
means a grant or cooperative agreement. On future dates to be specified 
by OMB in policy memoranda available at the OMB Web site, award also 
will include other types of awards of Federal financial assistance 
subject to the Transparency Act, as defined in Sec. 170.320.



Sec. 170.310  Entity.

    Entity has the meaning given in 2 CFR part 25.



Sec. 170.315  Executive.

    Executive means officers, managing partners, or any other employees 
in management positions.

[[Page 18]]



Sec. 170.320  Federal financial assistance subject to the Transparency Act.

    Federal financial assistance subject to the Transparency Act means 
assistance that non-Federal entities described in Sec. 170.105 receive 
or administer in the form of--
    (a) Grants;
    (b) Cooperative agreements (which does not include cooperative 
research and development agreements pursuant to the Federal Technology 
Transfer Act of 1986, as amended (15 U.S.C. 3710a));
    (c) Loans;
    (d) Loan guarantees;
    (e) Subsidies;
    (f) Insurance;
    (g) Food commodities;
    (h) Direct appropriations;
    (i) Assessed and voluntary contributions; and
    (j) Other financial assistance transactions that authorize the non-
Federal entities' expenditure of Federal funds.
    (b) Does not include--
    (1) Technical assistance, which provides services in lieu of money;
    (2) A transfer of title to Federally owned property provided in lieu 
of money, even if the award is called a grant;
    (3) Any classified award; or
    (4) Any award funded in whole or in part with Recovery funds, as 
defined in section 1512 of the American Recovery and Reinvestment Act of 
2009 (Pub. L. 111-5).

    Editorial Note: At 75 FR 55669, Sept. 14, 2010, Sec. 170.320 was 
added with two paragraph (b)s.



Sec. 170.325  Subaward.

    Subaward has the meaning given in paragraph e.3 of the award term in 
appendix A to this part.



170.330  Total compensation.

    Total Compensation has the meaning given in paragraph e.5 of the 
award term in appendix A to this part.



                 Sec. Appendix A to Part 170--Award term

    I. Reporting Subawards and Executive Compensation.
    a. Reporting of first-tier subawards.
    1. Applicability. Unless you are exempt as provided in paragraph d. 
of this award term, you must report each action that obligates $25,000 
or more in Federal funds that does not include Recovery funds (as 
defined in section 1512(a)(2) of the American Recovery and Reinvestment 
Act of 2009, Pub. L. 111-5) for a subaward to an entity (see definitions 
in paragraph e. of this award term).
    2. Where and when to report.
    i. You must report each obligating action described in paragraph 
a.1. of this award term to http://www.fsrs.gov.
    ii. For subaward information, report no later than the end of the 
month following the month in which the obligation was made. (For 
example, if the obligation was made on November 7, 2010, the obligation 
must be reported by no later than December 31, 2010.)
    3. What to report. You must report the information about each 
obligating action that the submission instructions posted at http://
www.fsrs.gov specify.
    b. Reporting Total Compensation of Recipient Executives.
    1. Applicability and what to report. You must report total 
compensation for each of your five most highly compensated executives 
for the preceding completed fiscal year, if--
    i. the total Federal funding authorized to date under this award is 
$25,000 or more;
    ii. in the preceding fiscal year, you received--
    (A) 80 percent or more of your annual gross revenues from Federal 
procurement contracts (and subcontracts) and Federal financial 
assistance subject to the Transparency Act, as defined at 2 CFR 170.320 
(and subawards); and
    (B) $25,000,000 or more in annual gross revenues from Federal 
procurement contracts (and subcontracts) and Federal financial 
assistance subject to the Transparency Act, as defined at 2 CFR 170.320 
(and subawards); and
    iii. The public does not have access to information about the 
compensation of the executives through periodic reports filed under 
section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 
78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. 
(To determine if the public has access to the compensation information, 
see the U.S. Security and Exchange Commission total compensation filings 
at http://www.sec.gov/answers/execomp.htm.)
    2. Where and when to report. You must report executive total 
compensation described in paragraph b.1. of this award term:
    i. As part of your registration profile at http://www.ccr.gov.
    ii. By the end of the month following the month in which this award 
is made, and annually thereafter.
    c. Reporting of Total Compensation of Subrecipient Executives.
    1. Applicability and what to report. Unless you are exempt as 
provided in paragraph d. of this award term, for each first-tier 
subrecipient under this award, you shall report the names and total 
compensation of each of

[[Page 19]]

the subrecipient's five most highly compensated executives for the 
subrecipient's preceding completed fiscal year, if--
    i. in the subrecipient's preceding fiscal year, the subrecipient 
received--
    (A) 80 percent or more of its annual gross revenues from Federal 
procurement contracts (and subcontracts) and Federal financial 
assistance subject to the Transparency Act, as defined at 2 CFR 170.320 
(and subawards); and
    (B) $25,000,000 or more in annual gross revenues from Federal 
procurement contracts (and subcontracts), and Federal financial 
assistance subject to the Transparency Act (and subawards); and
    ii. The public does not have access to information about the 
compensation of the executives through periodic reports filed under 
section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 
78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. 
(To determine if the public has access to the compensation information, 
see the U.S. Security and Exchange Commission total compensation filings 
at http://www.sec.gov/answers/execomp.htm.)
    2. Where and when to report. You must report subrecipient executive 
total compensation described in paragraph c.1. of this award term:
    i. To the recipient.
    ii. By the end of the month following the month during which you 
make the subaward. For example, if a subaward is obligated on any date 
during the month of October of a given year (i.e., between October 1 and 
31), you must report any required compensation information of the 
subrecipient by November 30 of that year.
    d. Exemptions
    If, in the previous tax year, you had gross income, from all 
sources, under $300,000, you are exempt from the requirements to report:
    i. Subawards,
    and
    ii. The total compensation of the five most highly compensated 
executives of any subrecipient.
    e. Definitions. For purposes of this award term:
    1. Entity means all of the following, as defined in 2 CFR part 25:
    i. A Governmental organization, which is a State, local government, 
or Indian tribe;
    ii. A foreign public entity;
    iii. A domestic or foreign nonprofit organization;
    iv. A domestic or foreign for-profit organization;
    v. A Federal agency, but only as a subrecipient under an award or 
subaward to a non-Federal entity.
    2. Executive means officers, managing partners, or any other 
employees in management positions.
    3. Subaward:
    i. This term means a legal instrument to provide support for the 
performance of any portion of the substantive project or program for 
which you received this award and that you as the recipient award to an 
eligible subrecipient.
    ii. The term does not include your procurement of property and 
services needed to carry out the project or program (for further 
explanation, see Sec. ---- .210 of the attachment to OMB Circular A-133, 
``Audits of States, Local Governments, and Non-Profit Organizations'').
    iii. A subaward may be provided through any legal agreement, 
including an agreement that you or a subrecipient considers a contract.
    4. Subrecipient means an entity that:
    i. Receives a subaward from you (the recipient) under this award; 
and
    ii. Is accountable to you for the use of the Federal funds provided 
by the subaward.
    5. Total compensation means the cash and noncash dollar value earned 
by the executive during the recipient's or subrecipient's preceding 
fiscal year and includes the following (for more information see 17 CFR 
229.402(c)(2)):
    i. Salary and bonus.
    ii. Awards of stock, stock options, and stock appreciation rights. 
Use the dollar amount recognized for financial statement reporting 
purposes with respect to the fiscal year in accordance with the 
Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 
123R), Shared Based Payments.
    iii. Earnings for services under non-equity incentive plans. This 
does not include group life, health, hospitalization or medical 
reimbursement plans that do not discriminate in favor of executives, and 
are available generally to all salaried employees.
    iv. Change in pension value. This is the change in present value of 
defined benefit and actuarial pension plans.
    v. Above-market earnings on deferred compensation which is not tax-
qualified.
    vi. Other compensation, if the aggregate value of all such other 
compensation (e.g. severance, termination payments, value of life 
insurance paid on behalf of the employee, perquisites or property) for 
the executive exceeds $10,000.

                        PARTS 171	174 [RESERVED]



PART 175_AWARD TERM FOR TRAFFICKING IN PERSONS--Table of Contents



Sec.
175.5 Purpose of this part.
175.10 Statutory requirement.
175.15 Award term.
175.20 Referral.
175.25 Definitions.


[[Page 20]]


    Authority: 22 U.S.C. 7104(g); 31 U.S.C. 503; 31 U.S.C. 1111; 41 
U.S.C. 405; Reorganization Plan No. 2 of 1970; E.O. 11541, 35 FR 10737, 
3 CFR, 1966-1970, p. 939.

    Source: 72 FR 63783, Nov. 13, 2007, unless otherwise noted.



Sec. 175.5  Purpose of this part.

    This part establishes a Governmentwide award term for grants and 
cooperative agreements to implement the requirement in paragraph (g) of 
section 106 of the Trafficking Victims Protection Act of 2000 (TVPA), as 
amended (22 U.S.C. 7104(g)).



Sec. 175.10  Statutory requirement.

    In each agency award (i.e., grant or cooperative agreement) under 
which funding is provided to a private entity, section 106(g) of the 
TVPA, as amended, requires the agency to include a condition that 
authorizes the agency to terminate the award, without penalty, if the 
recipient or a subrecipient--
    (a) Engages in severe forms of trafficking in persons during the 
period of time that the award is in effect;
    (b) Procures a commercial sex act during the period of time that the 
award is in effect; or
    (c) Uses forced labor in the performance of the award or subawards 
under the award.



Sec. 175.15  Award term.

    (a) To implement the trafficking in persons requirement in section 
106(g) of the TVPA, as amended, a Federal awarding agency must include 
the award term in paragraph (b) of this section in--
    (1) A grant or cooperative agreement to a private entity, as defined 
in Sec. 175.25(d); and
    (2) A grant or cooperative agreement to a State, local government, 
Indian tribe or foreign public entity, if funding could be provided 
under the award to a private entity as a subrecipient.
    (b) The award term that an agency must include, as described in 
paragraph (a) of this section, is:

    I. Trafficking in persons.
    a. Provisions applicable to a recipient that is a private entity.
    1. You as the recipient, your employees, subrecipients under this 
award, and subrecipients' employees may not--
    i. Engage in severe forms of trafficking in persons during the 
period of time that the award is in effect;
    ii. Procure a commercial sex act during the period of time that the 
award is in effect; or
    iii. Use forced labor in the performance of the award or subawards 
under the award.
    2. We as the Federal awarding agency may unilaterally terminate this 
award, without penalty, if you or a subrecipient that is a private 
entity --
    i. Is determined to have violated a prohibition in paragraph a.1 of 
this award term; or
    ii. Has an employee who is determined by the agency official 
authorized to terminate the award to have violated a prohibition in 
paragraph a.1 of this award term through conduct that is either--
    A. Associated with performance under this award; or
    B. Imputed to you or the subrecipient using the standards and due 
process for imputing the conduct of an individual to an organization 
that are provided in 2 CFR part 180, ``OMB Guidelines to Agencies on 
Governmentwide Debarment and Suspension (Nonprocurement),'' as 
implemented by our agency at [agency must insert reference here to its 
regulatory implementation of the OMB guidelines in 2 CFR part 180 (e.g., 
``2 CFR part XX'')].
    b. Provision applicable to a recipient other than a private entity. 
We as the Federal awarding agency may unilaterally terminate this award, 
without penalty, if a subrecipient that is a private entity--
    1. Is determined to have violated an applicable prohibition in 
paragraph a.1 of this award term; or
    2. Has an employee who is determined by the agency official 
authorized to terminate the award to have violated an applicable 
prohibition in paragraph a.1 of this award term through conduct that is 
either--
    i. Associated with performance under this award; or
    ii. Imputed to the subrecipient using the standards and due process 
for imputing the conduct of an individual to an organization that are 
provided in 2 CFR part 180, ``OMB Guidelines to Agencies on 
Governmentwide Debarment and Suspension (Nonprocurement),'' as 
implemented by our agency at [agency must insert reference here to its 
regulatory implementation of the OMB guidelines in 2 CFR part 180 (e.g., 
``2 CFR part XX'')].
    c. Provisions applicable to any recipient.
    1. You must inform us immediately of any information you receive 
from any source alleging a violation of a prohibition in paragraph a.1 
of this award term.
    2. Our right to terminate unilaterally that is described in 
paragraph a.2 or b of this section:

[[Page 21]]

    i. Implements section 106(g) of the Trafficking Victims Protection 
Act of 2000 (TVPA), as amended (22 U.S.C. 7104(g)), and
    ii. Is in addition to all other remedies for noncompliance that are 
available to us under this award.
    3. You must include the requirements of paragraph a.1 of this award 
term in any subaward you make to a private entity.
    d. Definitions. For purposes of this award term:
    1. ``Employee'' means either:
    i. An individual employed by you or a subrecipient who is engaged in 
the performance of the project or program under this award; or
    ii. Another person engaged in the performance of the project or 
program under this award and not compensated by you including, but not 
limited to, a volunteer or individual whose services are contributed by 
a third party as an in-kind contribution toward cost sharing or matching 
requirements.
    2. ``Forced labor'' means labor obtained by any of the following 
methods: the recruitment, harboring, transportation, provision, or 
obtaining of a person for labor or services, through the use of force, 
fraud, or coercion for the purpose of subjection to involuntary 
servitude, peonage, debt bondage, or slavery.
    3. ``Private entity'':
    i. Means any entity other than a State, local government, Indian 
tribe, or foreign public entity, as those terms are defined in 2 CFR 
175.25.
    ii. Includes:
    A. A nonprofit organization, including any nonprofit institution of 
higher education, hospital, or tribal organization other than one 
included in the definition of Indian tribe at 2 CFR 175.25(b).
    B. A for-profit organization.
    4. ``Severe forms of trafficking in persons,'' ``commercial sex 
act,'' and ``coercion'' have the meanings given at section 103 of the 
TVPA, as amended (22 U.S.C. 7102).

    (c) An agency may use different letters and numbers to designate the 
paragraphs of the award term in paragraph (b) of this section, if 
necessary, to conform the system of paragraph designations with the one 
used in other terms and conditions in the agency's awards.



Sec. 175.20  Referral.

    An agency official should inform the agency's suspending or 
debarring official if he or she terminates an award based on a violation 
of a prohibition contained in the award term under Sec. 175.15.



Sec. 175.25  Definitions.

    Terms used in this part are defined as follows:
    (a) Foreign public entity means:
    (1) A foreign government or foreign governmental entity;
    (2) A public international organization, which is an organization 
entitled to enjoy privileges, exemptions, and immunities as an 
international organization under the International Organizations 
Immunities Act (22 U.S.C. 288-288f);
    (3) An entity owned (in whole or in part) or controlled by a foreign 
government; and
    (4) Any other entity consisting wholly or partially of one or more 
foreign governments or foreign governmental entities.
    (b) Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaskan Native village or 
regional or village corporation (as defined in, or established under, 
the Alaskan Native Claims Settlement Act (43 U.S.C. 1601, et seq.)) that 
is recognized by the United States as eligible for the special programs 
and services provided by the United States to Indians because of their 
status as Indians.
    (c) Local government means a:
    (1) County;
    (2) Borough;
    (3) Municipality;
    (4) City;
    (5) Town;
    (6) Township;
    (7) Parish;
    (8) Local public authority, including any public housing agency 
under the United States Housing Act of 1937;
    (9) Special district;
    (10) School district;
    (11) Intrastate district;
    (12) Council of governments, whether or not incorporated as a 
nonprofit corporation under State law; and
    (13) Any other instrumentality of a local government.
    (d) Private entity. (1) This term means any entity other than a 
State, local government, Indian tribe, or foreign public entity.
    (2) This term includes:
    (i) A nonprofit organization, including any nonprofit institution of 
higher

[[Page 22]]

education, hospital, or tribal organization other than one included in 
the definition of Indian tribe in paragraph (b) of this section.
    (ii) A for-profit organization.
    (e) State, consistent with the definition in section 103 of the 
TVPA, as amended (22 U.S.C. 7102), means:
    (1) Any State of the United States;
    (2) The District of Columbia;
    (3) Any agency or instrumentality of a State other than a local 
government or State-controlled institution of higher education;
    (4) The Commonwealths of Puerto Rico and the Northern Mariana 
Islands; and
    (5) The United States Virgin Islands, Guam, American Samoa, and a 
territory or possession of the United States.



PART 176_AWARD TERMS FOR ASSISTANCE AGREEMENTS THAT INCLUDE FUNDS UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009, PUBLIC LAW 111	5--Table of Contents



Sec.
176.10 Purpose of this part.
176.20 Agency responsibilities (general).
176.30 Definitions.

Subpart A_Reporting and Registration Requirements Under Section 1512 of 
           the American Recovery and Reinvestment Act of 2009

176.40 Procedure.
176.50 Award term--Reporting and registration requirements under section 
          1512 of the Recovery Act.

 Subpart B_Buy American Requirement under Section 1605 of the American 
                  Recovery and Reinvestment Act of 2009

176.60 Statutory requirement.
176.70 Policy.
176.80 Exceptions.
176.90 Acquisitions covered under international agreements.
176.100 Timely determination concerning the inapplicability of section 
          1605 of the Recovery Act.
176.110 Evaluating proposals of foreign iron, steel, and/or manufactured 
          goods.
176.120 Determinations on late requests.
176.130 Noncompliance.
176.140 Award term--Required Use of American Iron, Steel, and 
          Manufactured Goods--Section 1605 of the American Recovery and 
          Reinvestment Act of 2009.
176.150 Notice of Required Use of American Iron, Steel, and Manufactured 
          Goods--Section 1605 of the American Recovery and Reinvestment 
          Act of 2009.
176.160 Award term--Required Use of American Iron, Steel, and 
          Manufactured Goods (covered under International Agreements)--
          Section 1605 of the American Recovery and Reinvestment Act of 
          2009.
176.170 Notice of Required Use of American Iron, Steel, and Manufactured 
          Goods (covered under International Agreements)--Section 1605 
          of the American Recovery and Reinvestment Act of 2009.

Appendix to Subpart B of 2 CFR Part 176--U.S. States, Other Sub-Federal 
          Entities, and Other Entities Subject to U.S. Obligations Under 
          International Agreements (as of February 16, 2010)

  Subpart C_Wage Rate Requirements under Section 1606 of the American 
                  Recovery and Reinvestment Act of 2009

176.180 Procedure.
176.190 Award term--Wage rate requirements under Section 1606 of the 
          Recovery Act.

 Subpart D_Single Audit Information for Recipients of Recovery Act Funds

176.200 Procedure.
176.210 Award term--Recovery Act transactions listed in Schedule of 
          Expenditures of Federal Awards and Recipient Responsibilities 
          for Informing Subrecipients.

    Authority: American Recovery and Reinvestment Act of 2009, Public 
Law 111-5; Federal Funding Accountability and Transparency Act of 2006, 
(Pub. L. 109-282), as amended.

    Source: 74 FR 18450, Apr. 23, 2009, unless otherwise noted.



Sec. 176.10  Purpose of this part.

    This part establishes Federal Governmentwide award terms for 
financial assistance awards, namely, grants, cooperative agreements, and 
loans, to implement the cross-cutting requirements of the American 
Recovery and Reinvestment Act of 2009, Public Law 111-5 (Recovery Act). 
These requirements are cross-cutting in that they apply to more than one 
agency's awards.

[[Page 23]]



Sec. 176.20  Agency responsibilities (general).

    (a) In any assistance award funded in whole or in part by the 
Recovery Act, the award official shall indicate that the award is being 
made under the Recovery Act, and indicate what projects and/or 
activities are being funded under the Recovery Act. This requirement 
applies whenever Recovery Act funds are used, regardless of the 
assistance type.
    (b) To maximize transparency of Recovery Act funds required for 
reporting by the assistance recipient, the award official shall consider 
structuring assistance awards to allow for separately tracking Recovery 
Act funds.
    (c) Award officials shall ensure that recipients comply with the 
Recovery Act requirements of Subpart A. If the recipient fails to comply 
with the reporting requirements or other award terms, the award official 
or other authorized agency action official shall take the appropriate 
enforcement or termination action in accordance with 2 CFR 215.62 or the 
agency's implementation of the OMB Circular A-102 grants management 
common rule. OMB Circular A-102 is available at http://
www.whitehouse.gov/omb/circulars/a102/a102.html.
    (d) The award official shall make the recipient's failure to comply 
with the reporting requirements a part of the recipient's performance 
record.



Sec. 176.30  Definitions.

    As used in this part--
    Award means any grant, cooperative agreement or loan made with 
Recovery Act funds. Award official means a person with the authority to 
enter into, administer, and/or terminate financial assistance awards and 
make related determinations and findings.
    Classified or ``classified information'' means any knowledge that 
can be communicated or any documentary material, regardless of its 
physical form or characteristics, that--
    (1)(i) Is owned by, is produced by or for, or is under the control 
of the United States Government; or
    (ii) Has been classified by the Department of Energy as privately 
generated restricted data following the procedures in 10 CFR 1045.21; 
and
    (2) Must be protected against unauthorized disclosure according to 
Executive Order 12958, Classified National Security Information, April 
17, 1995, or classified in accordance with the Atomic Energy Act of 
1954.
    Recipient means any entity other than an individual that receives 
Recovery Act funds in the form of a grant, cooperative agreement or loan 
directly from the Federal Government.
    Recovery funds or Recovery Act funds are funds made available 
through the appropriations of the American Recovery and Reinvestment Act 
of 2009, Public Law 111-5.
    Subaward means--
    (1) A legal instrument to provide support for the performance of any 
portion of the substantive project or program for which the recipient 
received this award and that the recipient awards to an eligible 
subrecipient;
    (2) The term does not include the recipient's procurement of 
property and services needed to carry out the project or program (for 
further explanation, see Sec. ----.210 of the attachment to OMB Circular 
A-133, ``Audits of States, Local Governments, and Non-Profit 
Organizations''). OMB Circular A-133 is available at http://
www.whitehouse.gov/omb/circulars/a133/a133.html.
    (3) A subaward may be provided through any legal agreement, 
including an agreement that the recipient or a subrecipient considers a 
contract.
    Subcontract means a legal instrument used by a recipient for 
procurement of property and services needed to carry out the project or 
program.
    Subrecipient or Subawardee means a non-Federal entity that expends 
Federal awards received from a pass-through entity to carry out a 
Federal program, but does not include an individual that is a 
beneficiary of such a program. A subrecipient may also be a recipient of 
other Federal awards directly from a Federal awarding agency. Guidance 
on distinguishing between a subrecipient and a vendor is provided in 
Sec. ----.210 of OMB Circular A-133.

[[Page 24]]



Subpart A_Reporting and Registration Requirements Under Section 1512 of 
           the American Recovery and Reinvestment Act of 2009



Sec. 176.40  Procedure.

    The award official shall insert the standard award term in this 
subpart in all awards funded in whole or in part with Recovery Act 
funds, except for those that are classified, awarded to individuals, or 
awarded under mandatory and entitlement programs, except as specifically 
required by OMB, or expressly exempted from the reporting requirement in 
the Recovery Act.



Sec. 176.50  Award term--Reporting and registration requirements under section 1512 of the Recovery Act.

    Agencies are responsible for ensuring that their recipients report 
information required under the Recovery Act in a timely manner. The 
following award term shall be used by agencies to implement the 
recipient reporting and registration requirements in section 1512:
    (a) This award requires the recipient to complete projects or 
activities which are funded under the American Recovery and Reinvestment 
Act of 2009 (Recovery Act) and to report on use of Recovery Act funds 
provided through this award. Information from these reports will be made 
available to the public.
    (b) The reports are due no later than ten calendar days after each 
calendar quarter in which the recipient receives the assistance award 
funded in whole or in part by the Recovery Act.
    (c) Recipients and their first-tier recipients must maintain current 
registrations in the Central Contractor Registration (http://
www.ccr.gov) at all times during which they have active federal awards 
funded with Recovery Act funds. A Dun and Bradstreet Data Universal 
Numbering System (DUNS) Number (http://www.dnb.com) is one of the 
requirements for registration in the Central Contractor Registration.
    (d) The recipient shall report the information described in section 
1512(c) of the Recovery Act using the reporting instructions and data 
elements that will be provided online at http://www.FederalReporting.gov 
and ensure that any information that is pre-filled is corrected or 
updated as needed.



 Subpart B_Buy American Requirement Under Section 1605 of the American 
                  Recovery and Reinvestment Act of 2009



Sec. 176.60  Statutory requirement.

    Section 1605 of the Recovery Act prohibits use of recovery funds for 
a project for the construction, alteration, maintenance, or repair of a 
public building or public work unless all of the iron, steel, and 
manufactured goods used in the project are produced in the United 
States. The law requires that this prohibition be applied in a manner 
consistent with U.S. obligations under international agreements, and it 
provides for waiver under three circumstances:
    (a) Iron, steel, or relevant manufactured goods are not produced in 
the United States in sufficient and reasonably available quantities and 
of a satisfactory quality;
    (b) Inclusion of iron, steel, or manufactured goods produced in the 
United States will increase the cost of the overall project by more than 
25 percent; or
    (c) Applying the domestic preference would be inconsistent with the 
public interest.



Sec. 176.70  Policy.

    Except as provided in Sec. 176.80 or Sec. 176.90--
    (a) None of the funds appropriated or otherwise made available by 
the Recovery Act may be used for a project for the construction, 
alteration, maintenance, or repair of a public building or public work 
(see definitions at Sec. Sec. 176.140 and 176.160) unless--
    (1) The public building or public work is located in the United 
States; and
    (2) All of the iron, steel, and manufactured goods used in the 
project are produced or manufactured in the United States.
    (i) Production in the United States of the iron or steel used in the 
project requires that all manufacturing processes must take place in the 
United

[[Page 25]]

States, except metallurgical processes involving refinement of steel 
additives. These requirements do not apply to iron or steel used as 
components or subcomponents of manufactured goods used in the project.
    (ii) There is no requirement with regard to the origin of components 
or subcomponents in manufactured goods used in the project, as long as 
the manufacturing occurs in the United States.
    (b) Paragraph (a) of this section shall not apply where the Recovery 
Act requires the application of alternative Buy American requirements 
for iron, steel, and manufactured goods.



Sec. 176.80  Exceptions.

    (a) When one of the following exceptions applies in a case or 
category of cases, the award official may allow the recipient to use 
foreign iron, steel and/or manufactured goods in the project without 
regard to the restrictions of section 1605 of the Recovery Act:
    (1) Nonavailability. The head of the Federal department or agency 
may determine that the iron, steel or relevant manufactured good is not 
produced or manufactured in the United States in sufficient and 
reasonably available commercial quantities of a satisfactory quality. 
The determinations of nonavailability of the articles listed at 48 CFR 
25.104(a) and the procedures at 48 CFR 25.103(b)(1) also apply if any of 
those articles are manufactured goods needed in the project.
    (2) Unreasonable cost. The head of the Federal department or agency 
may determine that the cost of domestic iron, steel, or relevant 
manufactured goods will increase the cost of the overall project by more 
than 25 percent in accordance with Sec. 176.110.
    (3) Inconsistent with public interest. The head of the Federal 
department or agency may determine that application of the restrictions 
of section 1605 of the Recovery Act would be inconsistent with the 
public interest.
    (b) When a determination is made for any of the reasons stated in 
this section that certain foreign iron, steel, and/or manufactured goods 
may be used--
    (1) The award official shall list the excepted materials in the 
award; and
    (2) The head of the Federal department or agency shall publish a 
notice in the Federal Register within two weeks after the determination 
is made, unless the item has already been determined to be domestically 
nonavailable. A list of items that are not domestically available is at 
48 CFR 25.104(a). The Federal Register notice or information from the 
notice may be posted by OMB to Recovery.gov. The notice shall include--
    (i) The title ``Buy American Exception under the American Recovery 
and Reinvestment Act of 2009'';
    (ii) The dollar value and brief description of the project; and
    (iii) A detailed written justification as to why the restriction is 
being waived.



Sec. 176.90  Acquisitions covered under international agreements.

    Section 1605(d) of the Recovery Act provides that the Buy American 
requirement in section 1605 shall be applied in a manner consistent with 
U.S. obligations under international agreements.
    (a) The Buy American requirement set out in Sec. 176.70 shall not 
be applied where the iron, steel, or manufactured goods used in the 
project are from a Party to an international agreement, listed in 
paragraph (b) of this section, and the recipient is required under an 
international agreement, described in the appendix to this subpart, to 
treat the goods and services of that Party the same as domestic goods 
and services. As of January 1, 2010, this obligation shall only apply to 
projects with an estimated value of $7,804,000 or more and projects that 
are not specifically excluded from the application of those agreements.
    (b) The international agreements that obligate recipients that are 
covered under an international agreement to treat the goods and services 
of a Party the same as domestic goods and services and the respective 
Parties to the agreements are:
    (1) The World Trade Organization Government Procurement Agreement 
(Aruba, Austria, Belgium, Bulgaria, Canada, Chinese Taipei (Taiwan), 
Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, 
Greece,

[[Page 26]]

Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea 
(Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, 
Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak 
Republic, Slovenia, Spain, Sweden, Switzerland, and United Kingdom);
    (2) The following Free Trade Agreements:
    (i) Dominican Republic-Central America-United States Free Trade 
Agreement (Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Nicaragua);
    (ii) North American Free Trade Agreement (NAFTA) (Canada and 
Mexico);
    (iii) United States-Australia Free Trade Agreement;
    (iv) United States-Bahrain Free Trade Agreement;
    (v) United States-Chile Free Trade Agreement;
    (vi) United States-Israel Free Trade Agreement;
    (vii) United States-Morocco Free Trade Agreement;
    (viii) United States-Oman Free Trade Agreement;
    (ix) United States-Peru Trade Promotion Agreement; and
    (x) United States-Singapore Free Trade Agreement.
    (3) United States-European Communities Exchange of Letters (May 15, 
1995): Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, 
Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, 
Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, 
Romania, Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom; 
and
    (4) Agreement between the Government of Canada and the Government of 
the United States of America on Government Procurement.

[74 FR 18450, Apr. 23, 2009, as amended at 75 FR 14323, Mar. 25, 2010]



Sec. 176.100  Timely determination concerning the inapplicability of section 1605 of the Recovery Act.

    (a) The head of the Federal department or agency involved may make a 
determination regarding inapplicability of section 1605 to a particular 
case or to a category of cases.
    (b) Before Recovery Act funds are awarded by the Federal agency or 
obligated by the recipient for a project for the construction, 
alteration, maintenance, or repair of a public building or public work, 
an applicant or recipient may request from the award official a 
determination concerning the inapplicability of section 1605 of the 
Recovery Act for specifically identified items.
    (c) The time for submitting the request and the information and 
supporting data that must be included in the request are to be specified 
in the agency's and recipient's request for applications and/or 
proposals, and as appropriate, in other written communications. The 
content of those communications should be consistent with the notice in 
Sec. 176.150 or Sec. 176.170, whichever applies.
    (d) The award official must evaluate all requests based on the 
information provided and may supplement this information with other 
readily available information.
    (e) In making a determination based on the increased cost to the 
project of using domestic iron, steel, and/or manufactured goods, the 
award official must compare the total estimated cost of the project 
using foreign iron, steel and/or relevant manufactured goods to the 
estimated cost if all domestic iron, steel, and/or relevant manufactured 
goods were used. If use of domestic iron, steel, and/or relevant 
manufactured goods would increase the cost of the overall project by 
more than 25 percent, then the award official shall determine that the 
cost of the domestic iron, steel, and/or relevant manufactured goods is 
unreasonable.



Sec. 176.110  Evaluating proposals of foreign iron, steel, and/or manufactured goods.

    (a) If the award official receives a request for an exception based 
on the cost of certain domestic iron, steel, and/or manufactured goods 
being unreasonable, in accordance with Sec. 176.80, then the award 
official shall apply evaluation factors to the proposal to use such 
foreign iron, steel, and/or manufactured goods as follows:
    (1) Use an evaluation factor of 25 percent, applied to the total 
estimated cost of the project, if the foreign iron,

[[Page 27]]

steel, and/or manufactured goods are to be used in the project based on 
an exception for unreasonable cost requested by the applicant.
    (2) Total evaluated cost = project cost estimate + (.25 x project 
cost estimate, if paragraph (a)(1) of this section applies).
    (b) Applicants or recipients also may submit alternate proposals 
based on use of equivalent domestic iron, steel, and/or manufactured 
goods to avoid possible denial of Recovery Act funding for the proposal 
if the Federal Government determines that an exception permitting use of 
the foreign item(s) does not apply.
    (c) If the award official makes an award to an applicant that 
proposed foreign iron, steel, and/or manufactured goods not listed in 
the applicable notice in the request for applications or proposals, then 
the award official must add the excepted materials to the list in the 
award term.



Sec. 176.120  Determinations on late requests.

    (a) If a recipient requests a determination regarding the 
inapplicability of section 1605 of the Recovery Act after obligating 
Recovery Act funds for a project for construction, alteration, 
maintenance, or repair (late request), the recipient must explain why it 
could not request the determination before making the obligation or why 
the need for such determination otherwise was not reasonably 
foreseeable. If the award official concludes that the recipient should 
have made the request before making the obligation, the award official 
may deny the request.
    (b) The award official must base evaluation of any late request for 
a determination regarding the inapplicability of section 1605 of the 
Recovery Act on information required by Sec. 176.150(c) and (d) or 
Sec. 176.170(c) and (d) and/or other readily available information.
    (c) If a determination, under Sec. 176.80 is made after Recovery 
Act funds were obligated for a project for construction, alteration, 
maintenance, or repair that an exception to section 1605 of the Recovery 
Act applies, the award official must amend the award to allow use of the 
foreign iron, steel, and/or relevant manufactured goods. When the basis 
of the exception is nonavailability or public interest, the amended 
award shall reflect adjustment of the award amount, redistribution of 
budgeted funds, and/or other appropriate actions taken to cover costs 
associated with acquiring or using the foreign iron, steel, and/or 
manufactured goods. When the basis for the exception is the unreasonable 
cost of domestic iron, steel, and/or manufactured goods the award 
official shall adjust the award amount or the budget, as appropriate, by 
at least the differential established in Sec. 176.110(a).



Sec. 176.130  Noncompliance.

    The award official must--
    (a) Review allegations of violations of section 1605 of the Recovery 
Act;
    (b) Unless fraud is suspected, notify the recipient of the apparent 
unauthorized use of foreign iron, steel, and/or manufactured goods and 
request a reply, to include proposed corrective action; and
    (c) If the review reveals that a recipient or subrecipient has used 
foreign iron, steel, and/or manufactured goods without authorization, 
take appropriate action, including one or more of the following:
    (1) Process a determination concerning the inapplicability of 
section 1605 of the Recovery Act in accordance with Sec. 176.120.
    (2) Consider requiring the removal and replacement of the 
unauthorized foreign iron, steel, and/or manufactured goods.
    (3) If removal and replacement of foreign iron, steel, and/or 
manufactured goods used in a public building or a public work would be 
impracticable, cause undue delay, or otherwise be detrimental to the 
interests of the Federal Government, the award official may determine in 
writing that the foreign iron, steel, and/or manufactured goods need not 
be removed and replaced. A determination to retain foreign iron, steel, 
and/or manufactured goods does not constitute a determination that an 
exception to section 1605 of the Recovery Act applies, and this should 
be stated in the determination. Further, a determination to retain 
foreign iron, steel, and/or manufactured goods does not affect the 
Federal Government's

[[Page 28]]

right to reduce the amount of the award by the cost of the steel, iron, 
or manufactured goods that are used in the project or to take 
enforcement or termination action in accordance with the agency's grants 
management regulations.
    (4) If the noncompliance is sufficiently serious, consider 
exercising appropriate remedies, such as withholding cash payments 
pending correction of the deficiency, suspending or terminating the 
award, and withholding further awards for the project. Also consider 
preparing and forwarding a report to the agency suspending or debarring 
official in accordance with the agency's debarment rule implementing 2 
CFR part 180. If the noncompliance appears to be fraudulent, refer the 
matter to other appropriate agency officials, such as the officer 
responsible for criminal investigation.



Sec. 176.140  Award term--Required Use of American Iron, Steel, and Manufactured

Goods--Section 1605 of the American Recovery and Reinvestment Act of 2009.

    When awarding Recovery Act funds for construction, alteration, 
maintenance, or repair of a public building or public work that does not 
involve iron, steel, and/or manufactured goods covered under 
international agreements, the agency shall use the award term described 
in the following paragraphs:
    (a) Definitions. As used in this award term and condition--
    (1) Manufactured good means a good brought to the construction site 
for incorporation into the building or work that has been--
    (i) Processed into a specific form and shape; or
    (ii) Combined with other raw material to create a material that has 
different properties than the properties of the individual raw 
materials.
    (2) Public building and public work means a public building of, and 
a public work of, a governmental entity (the United States; the District 
of Columbia; commonwealths, territories, and minor outlying islands of 
the United States; State and local governments; and multi-State, 
regional, or interstate entities which have governmental functions). 
These buildings and works may include, without limitation, bridges, 
dams, plants, highways, parkways, streets, subways, tunnels, sewers, 
mains, power lines, pumping stations, heavy generators, railways, 
airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, 
jetties, breakwaters, levees, and canals, and the construction, 
alteration, maintenance, or repair of such buildings and works.
    (3) Steel means an alloy that includes at least 50 percent iron, 
between .02 and 2 percent carbon, and may include other elements.
    (b) Domestic preference. (1) This award term and condition 
implements Section 1605 of the American Recovery and Reinvestment Act of 
2009 (Recovery Act) (Pub. L. 111-5), by requiring that all iron, steel, 
and manufactured goods used in the project are produced in the United 
States except as provided in paragraph (b)(3) and (b)(4) of this section 
and condition.
    (2) This requirement does not apply to the material listed by the 
Federal Government as follows:
________________________________________________________________________

    [Award official to list applicable excepted materials or indicate 
``none'']
    (3) The award official may add other iron, steel, and/or 
manufactured goods to the list in paragraph (b)(2) of this section and 
condition if the Federal Government determines that--
    (i) The cost of the domestic iron, steel, and/or manufactured goods 
would be unreasonable. The cost of domestic iron, steel, or manufactured 
goods used in the project is unreasonable when the cumulative cost of 
such material will increase the cost of the overall project by more than 
25 percent;
    (ii) The iron, steel, and/or manufactured good is not produced, or 
manufactured in the United States in sufficient and reasonably available 
quantities and of a satisfactory quality; or
    (iii) The application of the restriction of section 1605 of the 
Recovery Act would be inconsistent with the public interest.
    (c) Request for determination of inapplicability of Section 1605 of 
the Recovery Act. (1)(i) Any recipient request to use foreign iron, 
steel, and/or manufactured goods in accordance with paragraph (b)(3) of 
this section shall include

[[Page 29]]

adequate information for Federal Government evaluation of the request, 
including--
    (A) A description of the foreign and domestic iron, steel, and/or 
manufactured goods;
    (B) Unit of measure;
    (C) Quantity;
    (D) Cost;
    (E) Time of delivery or availability;
    (F) Location of the project;
    (G) Name and address of the proposed supplier; and
    (H) A detailed justification of the reason for use of foreign iron, 
steel, and/or manufactured goods cited in accordance with paragraph 
(b)(3) of this section.
    (ii) A request based on unreasonable cost shall include a reasonable 
survey of the market and a completed cost comparison table in the format 
in paragraph (d) of this section.
    (iii) The cost of iron, steel, and/or manufactured goods material 
shall include all delivery costs to the construction site and any 
applicable duty.
    (iv) Any recipient request for a determination submitted after 
Recovery Act funds have been obligated for a project for construction, 
alteration, maintenance, or repair shall explain why the recipient could 
not reasonably foresee the need for such determination and could not 
have requested the determination before the funds were obligated. If the 
recipient does not submit a satisfactory explanation, the award official 
need not make a determination.
    (2) If the Federal Government determines after funds have been 
obligated for a project for construction, alteration, maintenance, or 
repair that an exception to section 1605 of the Recovery Act applies, 
the award official will amend the award to allow use of the foreign 
iron, steel, and/or relevant manufactured goods. When the basis for the 
exception is nonavailability or public interest, the amended award shall 
reflect adjustment of the award amount, redistribution of budgeted 
funds, and/or other actions taken to cover costs associated with 
acquiring or using the foreign iron, steel, and/or relevant manufactured 
goods. When the basis for the exception is the unreasonable cost of the 
domestic iron, steel, or manufactured goods, the award official shall 
adjust the award amount or redistribute budgeted funds by at least the 
differential established in 2 CFR 176.110(a).
    (3) Unless the Federal Government determines that an exception to 
section 1605 of the Recovery Act applies, use of foreign iron, steel, 
and/or manufactured goods is noncompliant with section 1605 of the 
American Recovery and Reinvestment Act.
    (d) Data. To permit evaluation of requests under paragraph (b) of 
this section based on unreasonable cost, the Recipient shall include the 
following information and any applicable supporting data based on the 
survey of suppliers:

                                   Foreign and Domestic Items Cost Comparison
----------------------------------------------------------------------------------------------------------------
                                                                   Unit of                             Cost
                         Description                               measure          Quantity        (dollars)*
----------------------------------------------------------------------------------------------------------------
Item 1:
    Foreign steel, iron, or manufactured good................      ----------       ----------       ----------
    Domestic steel, iron, or manufactured good...............      ----------       ----------       ----------
Item 2:
    Foreign steel, iron, or manufactured good................      ----------       ----------       ----------
    Domestic steel, iron, or manufactured good...............      ----------       ----------       ----------
----------------------------------------------------------------------------------------------------------------
[List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of
  response; if oral, attach summary.]
[Include other applicable supporting information.]
[*Include all delivery costs to the construction site.]


[[Page 30]]



Sec. 176.150  Notice of Required Use of American Iron, Steel, and Manufactured 

Goods--Section 1605 of the American Recovery and Reinvestment Act of 2009.

    When requesting applications or proposals for Recovery Act programs 
or activities that may involve construction, alteration, maintenance, or 
repair of a public building or public work, and do not involve iron, 
steel, and/or manufactured goods covered under international agreements, 
the agency shall use the notice described in the following paragraphs in 
their solicitations:
    (a) Definitions. Manufactured good, public building and public work, 
and steel, as used in this notice, are defined in the 2 CFR 176.140.
    (b) Requests for determinations of inapplicability. A prospective 
applicant requesting a determination regarding the inapplicability of 
section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. 
L. 111-5) (Recovery Act) should submit the request to the award official 
in time to allow a determination before submission of applications or 
proposals. The prospective applicant shall include the information and 
applicable supporting data required by paragraphs at 2 CFR 176.140(c) 
and (d) in the request. If an applicant has not requested a 
determination regarding the inapplicability of 1605 of the Recovery Act 
before submitting its application or proposal, or has not received a 
response to a previous request, the applicant shall include the 
information and supporting data in the application or proposal.
    (c) Evaluation of project proposals. If the Federal Government 
determines that an exception based on unreasonable cost of domestic 
iron, steel, and/or manufactured goods applies, the Federal Government 
will evaluate a project requesting exception to the requirements of 
section 1605 of the Recovery Act by adding to the estimated total cost 
of the project 25 percent of the project cost, if foreign iron, steel, 
or manufactured goods are used in the project based on unreasonable cost 
of comparable manufactured domestic iron, steel, and/or manufactured 
goods.
    (d) Alternate project proposals. (1) When a project proposal 
includes foreign iron, steel, and/or manufactured goods not listed by 
the Federal Government at 2 CFR 176.140(b)(2), the applicant also may 
submit an alternate proposal based on use of equivalent domestic iron, 
steel, and/or manufactured goods.
    (2) If an alternate proposal is submitted, the applicant shall 
submit a separate cost comparison table prepared in accordance with 2 
CFR 176.140(c) and (d) for the proposal that is based on the use of any 
foreign iron, steel, and/or manufactured goods for which the Federal 
Government has not yet determined an exception applies.
    (3) If the Federal Government determines that a particular exception 
requested in accordance with 2 CFR 176.140(b) does not apply, the 
Federal Government will evaluate only those proposals based on use of 
the equivalent domestic iron, steel, and/or manufactured goods, and the 
applicant shall be required to furnish such domestic items.



Sec. 176.160  Award term--Required Use of American Iron, Steel, and 

Manufactured Goods (covered under International Agreements)--Section 1605 of the American 
          Recovery and Reinvestment Act of 2009.

    When awarding Recovery Act funds for construction, alteration, 
maintenance, or repair of a public building or public work that involves 
iron, steel, and/or manufactured goods materials covered under 
international agreements, the agency shall use the award term described 
in the following paragraphs:
    (a) Definitions. As used in this award term and condition--
    Designated country--(1) A World Trade Organization Government 
Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria, 
Canada, Chinese Taipei (Taiwan), Cyprus, Czech Republic, Denmark, 
Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, 
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, 
Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, 
Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, 
Sweden, Switzerland, and United Kingdom;
    (2) A Free Trade Agreement (FTA) country (Australia, Bahrain, 
Canada,

[[Page 31]]

Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, 
Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
    (3) A United States-European Communities Exchange of Letters (May 
15, 1995) country: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, 
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, 
Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, 
Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United 
Kingdom; or
    (4) An Agreement between Canada and the United States of America on 
Government Procurement country (Canada).
    Designated country iron, steel, and/or manufactured goods--(1) Is 
wholly the growth, product, or manufacture of a designated country; or
    (2) In the case of a manufactured good that consist in whole or in 
part of materials from another country, has been substantially 
transformed in a designated country into a new and different 
manufactured good distinct from the materials from which it was 
transformed.
    Domestic iron, steel, and/or manufactured good--(1) Is wholly the 
growth, product, or manufacture of the United States; or
    (2) In the case of a manufactured good that consists in whole or in 
part of materials from another country, has been substantially 
transformed in the United States into a new and different manufactured 
good distinct from the materials from which it was transformed. There is 
no requirement with regard to the origin of components or subcomponents 
in manufactured goods or products, as long as the manufacture of the 
goods occurs in the United States.
    Foreign iron, steel, and/or manufactured good means iron, steel and/
or manufactured good that is not domestic or designated country iron, 
steel, and/or manufactured good.
    Manufactured good means a good brought to the construction site for 
incorporation into the building or work that has been--
    (1) Processed into a specific form and shape; or
    (2) Combined with other raw material to create a material that has 
different properties than the properties of the individual raw 
materials.
    Public building and public work means a public building of, and a 
public work of, a governmental entity (the United States; the District 
of Columbia; commonwealths, territories, and minor outlying islands of 
the United States; State and local governments; and multi-State, 
regional, or interstate entities which have governmental functions). 
These buildings and works may include, without limitation, bridges, 
dams, plants, highways, parkways, streets, subways, tunnels, sewers, 
mains, power lines, pumping stations, heavy generators, railways, 
airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, 
jetties, breakwaters, levees, and canals, and the construction, 
alteration, maintenance, or repair of such buildings and works.
    Steel means an alloy that includes at least 50 percent iron, between 
.02 and 2 percent carbon, and may include other elements.
    (b) Iron, steel, and manufactured goods. (1) The award term and 
condition described in this section implements--
    (i) Section 1605(a) of the American Recovery and Reinvestment Act of 
2009 (Pub. L. 111-5) (Recovery Act), by requiring that all iron, steel, 
and manufactured goods used in the project are produced in the United 
States; and
    (ii) Section 1605(d), which requires application of the Buy American 
requirement in a manner consistent with U.S. obligations under 
international agreements. The restrictions of section 1605 of the 
Recovery Act do not apply to designated country iron, steel, and/or 
manufactured goods. The Buy American requirement in section 1605 shall 
not be applied where the iron, steel or manufactured goods used in the 
project are from a Party to an international agreement that obligates 
the recipient to treat the goods and services of that Party the same as 
domestic goods and services. As of January 1, 2010, this obligation 
shall only apply to projects with an estimated value of $7,804,000 or 
more.
    (2) The recipient shall use only domestic or designated country 
iron,

[[Page 32]]

steel, and manufactured goods in performing the work funded in whole or 
part with this award, except as provided in paragraphs (b)(3) and (b)(4) 
of this section.
    (3) The requirement in paragraph (b)(2) of this section does not 
apply to the iron, steel, and manufactured goods listed by the Federal 
Government as follows:
________________________________________________________________________

    [Award official to list applicable excepted materials or indicate 
``none'']

    (4) The award official may add other iron, steel, and manufactured 
goods to the list in paragraph (b)(3) of this section if the Federal 
Government determines that--
    (i) The cost of domestic iron, steel, and/or manufactured goods 
would be unreasonable. The cost of domestic iron, steel, and/or 
manufactured goods used in the project is unreasonable when the 
cumulative cost of such material will increase the overall cost of the 
project by more than 25 percent;
    (ii) The iron, steel, and/or manufactured good is not produced, or 
manufactured in the United States in sufficient and reasonably available 
commercial quantities of a satisfactory quality; or
    (iii) The application of the restriction of section 1605 of the 
Recovery Act would be inconsistent with the public interest.
    (c) Request for determination of inapplicability of section 1605 of 
the Recovery Act or the Buy American Act. (1)(i) Any recipient request 
to use foreign iron, steel, and/or manufactured goods in accordance with 
paragraph (b)(4) of this section shall include adequate information for 
Federal Government evaluation of the request, including--
    (A) A description of the foreign and domestic iron, steel, and/or 
manufactured goods;
    (B) Unit of measure;
    (C) Quantity;
    (D) Cost;
    (E) Time of delivery or availability;
    (F) Location of the project;
    (G) Name and address of the proposed supplier; and
    (H) A detailed justification of the reason for use of foreign iron, 
steel, and/or manufactured goods cited in accordance with paragraph 
(b)(4) of this section.
    (ii) A request based on unreasonable cost shall include a reasonable 
survey of the market and a completed cost comparison table in the format 
in paragraph (d) of this section.
    (iii) The cost of iron, steel, or manufactured goods shall include 
all delivery costs to the construction site and any applicable duty.
    (iv) Any recipient request for a determination submitted after 
Recovery Act funds have been obligated for a project for construction, 
alteration, maintenance, or repair shall explain why the recipient could 
not reasonably foresee the need for such determination and could not 
have requested the determination before the funds were obligated. If the 
recipient does not submit a satisfactory explanation, the award official 
need not make a determination.
    (2) If the Federal Government determines after funds have been 
obligated for a project for construction, alteration, maintenance, or 
repair that an exception to section 1605 of the Recovery Act applies, 
the award official will amend the award to allow use of the foreign 
iron, steel, and/or relevant manufactured goods. When the basis for the 
exception is nonavailability or public interest, the amended award shall 
reflect adjustment of the award amount, redistribution of budgeted 
funds, and/or other appropriate actions taken to cover costs associated 
with acquiring or using the foreign iron, steel, and/or relevant 
manufactured goods.. When the basis for the exception is the 
unreasonable cost of the domestic iron, steel, or manufactured goods, 
the award official shall adjust the award amount or redistribute 
budgeted funds, as appropriate, by at least the differential established 
in 2 CFR 176.110(a).
    (3) Unless the Federal Government determines that an exception to 
section 1605 of the Recovery Act applies, use of foreign iron, steel, 
and/or manufactured goods other than designated country iron, steel, 
and/or manufactured goods is noncompliant with the applicable Act.

[[Page 33]]

    (d) Data. To permit evaluation of requests under paragraph (b) of 
this section based on unreasonable cost, the applicant shall include the 
following information and any applicable supporting data based on the 
survey of suppliers:

                                   Foreign and Domestic Items Cost Comparison
----------------------------------------------------------------------------------------------------------------
            Description                  Unit of measure              Quantity              Cost  (dollars)*
----------------------------------------------------------------------------------------------------------------
Item 1:
    Foreign steel, iron, or                ----------------            --------------            --------------
     manufactured good............
    Domestic steel, iron, or                 --------------            --------------            --------------
     manufactured good............
Item 2:
    Foreign steel, iron, or              ------------------        ------------------        ------------------
     manufactured good............
    Domestic steel, iron, or             ------------------        ------------------        ------------------
     manufactured good............
----------------------------------------------------------------------------------------------------------------
[List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of
  response; if oral, attach summary.]
[Include other applicable supporting information.]
[*Include all delivery costs to the construction site.]


[74 FR 18450, Apr. 23, 2009, as amended at 75 FR 14323, Mar. 25, 2010]



Sec. 176.170  Notice of Required Use of American Iron, Steel, and

Manufactured Goods (covered under International Agreements)--Section 1605 of the American 
          Recovery and Reinvestment Act of 2009.

    When requesting applications or proposals for Recovery Act programs 
or activities that may involve construction, alteration, maintenance, or 
repair of a public building or public work, and involve iron, steel, 
and/or manufactured goods covered under international agreements, the 
agency shall use the notice described in the following paragraphs in the 
solicitation:
    (a) Definitions. Designated country iron, steel, and/or manufactured 
goods, foreign iron, steel, and/or manufactured good, manufactured good, 
public building and public work, and steel, as used in this provision, 
are defined in 2 CFR 176.160(a).
    (b) Requests for determinations of inapplicability. A prospective 
applicant requesting a determination regarding the inapplicability of 
section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. 
L. 111-5) (Recovery Act) should submit the request to the award official 
in time to allow a determination before submission of applications or 
proposals. The prospective applicant shall include the information and 
applicable supporting data required by 2 CFR 176.160 (c) and (d) in the 
request. If an applicant has not requested a determination regarding the 
inapplicability of section 1605 of the Recovery Act before submitting 
its application or proposal, or has not received a response to a 
previous request, the applicant shall include the information and 
supporting data in the application or proposal.
    (c) Evaluation of project proposals. If the Federal Government 
determines that an exception based on unreasonable cost of domestic 
iron, steel, and/or manufactured goods applies, the Federal Government 
will evaluate a project requesting exception to the requirements of 
section 1605 of the Recovery Act by adding to the estimated total cost 
of the project 25 percent of the project cost if foreign iron, steel, or 
manufactured goods are used based on unreasonable cost of comparable 
domestic iron, steel, or manufactured goods.
    (d) Alternate project proposals. (1) When a project proposal 
includes foreign iron, steel, and/or manufactured goods, other than 
designated country iron, steel, and/or manufactured goods, that are not 
listed by the Federal Government in this Buy American notice in the 
request for applications or proposals, the applicant may submit an 
alternate proposal based on use of equivalent domestic or designated 
country iron, steel, and/or manufactured goods.

[[Page 34]]

    (2) If an alternate proposal is submitted, the applicant shall 
submit a separate cost comparison table prepared in accordance with 
paragraphs 2 CFR 176.160(c) and (d) for the proposal that is based on 
the use of any foreign iron, steel, and/or manufactured goods for which 
the Federal Government has not yet determined an exception applies.
    (3) If the Federal Government determines that a particular exception 
requested in accordance with 2 CFR 176.160(b) does not apply, the 
Federal Government will evaluate only those proposals based on use of 
the equivalent domestic or designated country iron, steel, and/or 
manufactured goods, and the applicant shall be required to furnish such 
domestic or designated country items.



  Sec. Appendix to subpart B of 2 CFR part 176--U.S. States, Other Sub-
 
 Federal Entities, and Other Entities Subject to U.S. Obligations Under 
           International Agreements (as of February 16, 2010)

----------------------------------------------------------------------------------------------------------------
                                                                                          Relevant international
                States                     Entities covered            Exclusions               agreements
----------------------------------------------------------------------------------------------------------------
Arizona..............................  Executive branch         .......................  --WTO GPA.
                                        agencies.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Singapore FTA.
Arkansas.............................  Executive branch         Construction services..  --WTO GPA.
                                        agencies, including                              --DR-CAFTA.
                                        universities but                                 --U.S.-Australia FTA.
                                        excluding the Office                             --U.S.-Chile FTA.
                                        of Fish and Game.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Peru TPA.
                                                                                         --U.S.-Singapore FTA.
California...........................  Executive branch         .......................  --WTO GPA.
                                        agencies.
                                                                                         --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Singapore FTA.
Colorado.............................  Executive branch         .......................  --WTO GPA.
                                        agencies.
                                                                                         --DR-CAFTA.
                                                                                         --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Peru TPA.
                                                                                         --U.S.-Singapore FTA.
Connecticut..........................  --Department of          .......................  --WTO GPA.
                                        Administrative                                   --DR-CAFTA.
                                        Services                                         --U.S.-Australia FTA.
                                       --Department of                                   --U.S.-Chile FTA.
                                        Transportation..                                 --U.S.-Morocco FTA.
                                       --Department of Public                            --U.S.-Singapore FTA.
                                        Works..
                                       --Constituent Units of
                                        Higher Education.
Delaware.............................  --Administrative         Construction-grade       --WTO GPA.
                                        Services (Central        steel (including        --DR-CAFTA (except
                                        Procurement Agency).     requirements on          Honduras).
                                       --State Universities...   subcontracts); motor    --U.S.-Australia FTA.
                                       --State Colleges.......   vehicles; coal.         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Singapore FTA.
Florida..............................  Executive branch         Construction-grade       --WTO GPA.
                                        agencies.                steel (including        --DR-CAFTA.
                                                                 requirements on         --U.S.-Australia FTA.
                                                                 subcontracts); motor    --U.S.-Chile FTA.
                                                                 vehicles; coal.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Peru TPA.
                                                                                         --U.S.-Singapore FTA.
Georgia..............................  --Department of          Beef; compost; mulch...  --U.S.-Australia FTA.
                                        Administrative
                                        Services.
                                       --Georgia Technology
                                        Authority.
Hawaii...............................  Department of            Software developed in    --WTO GPA.
                                        Accounting and General   the State;              --DR-CAFTA (except
                                        Services.                construction.            Honduras).

[[Page 35]]

 
                                                                                         --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Singapore FTA.
Idaho................................  Central Procurement      .......................  --WTO GPA.
                                        Agency (including all                            --DR-CAFTA (except
                                        colleges and                                      Honduras).
                                        universities subject                             --U.S.-Australia FTA.
                                        to central purchasing                            --U.S.-Chile FTA.
                                        oversight).
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Singapore FTA.
Illinois.............................  --Department of Central  Construction-grade       --WTO GPA.
                                        Management Services.     steel (including        --U.S.-Australia FTA.
                                                                 requirements on         --U.S.-Chile FTA.
                                                                 subcontracts); motor
                                                                 vehicles; coal.
                                                                                         --U.S.-Peru TPA.
                                                                                         --U.S.-Singapore FTA.
                                                                                         --U.S.-EC.
                                                                                         Exchange of Letters
                                                                                          (applies to EC Member
                                                                                          States for procurement
                                                                                          not covered by WTO GPA
                                                                                          and only where the
                                                                                          State considers out-of-
                                                                                          State suppliers).
Iowa.................................  --Department of General  Construction-grade       --WTO GPA.
                                        Services                 steel (including        --U.S.-Chile FTA.
                                       --Department of           requirements on         --U.S.-Singapore FTA.
                                        Transportation..         subcontracts); motor
                                       --Board of Regents'       vehicles; coal.
                                        Institutions
                                        (universities).
Kansas...............................  Executive branch         Construction services;   --WTO GPA.
                                        agencies.                automobiles; aircraft.  --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Singapore FTA.
Kentucky.............................  Division of Purchases,   Construction projects..  --WTO GPA.
                                        Finance and                                      --DR-CAFTA.
                                        Administration Cabinet.                          --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Singapore FTA.
Louisiana............................  Executive branch         .......................  --WTO GPA.
                                        agencies.
                                                                                         --DR-CAFTA.
                                                                                         --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Singapore FTA.
Maine................................  --Department of          Construction-grade       --WTO GPA.
                                        Administrative and       steel (including        --U.S.-Australia FTA.
                                        Financial Services       requirements on         --U.S.-Chile FTA.
                                       --Bureau of General       subcontracts); motor    --U.S.-Singapore FTA.
                                        Services (covering       vehicles; coal.
                                        State government
                                        agencies and school
                                        construction).
                                       -- Department of
                                        Transportation..

[[Page 36]]

 
Maryland.............................  --Office of the          Construction-grade       --WTO GPA.
                                        Treasury                 steel (including        --DR-CAFTA.
                                       --Department of the       requirements on         --U.S.-Australia FTA.
                                        Environment..            subcontracts); motor    --U.S.-Chile FTA.
                                       --Department of General   vehicles; coal.         --U.S.-Morocco FTA.
                                        Services..                                       --U.S.-Singapore FTA.
                                       --Department of Housing
                                        and Community
                                        Development..
                                       --Department of Human
                                        Resources..
                                       --Department of
                                        Licensing and
                                        Regulation..
                                       --Department of Natural
                                        Resources..
                                       --Department of Public
                                        Safety and
                                        Correctional Services..
                                       --Department of
                                        Personnel..
                                       --Department of
                                        Transportation..
Massachusetts........................  --Executive Office for   .......................  --WTO GPA.
                                        Administration and                               --U.S.-Chile FTA.
                                        Finance.
                                       --Executive Office of                             --U.S.-Singapore FTA.
                                        Communities and
                                        Development.
                                       --Executive Office of
                                        Consumer Affairs.
                                       --Executive Office of
                                        Economic Affairs.
                                       --Executive Office of
                                        Education.
                                       --Executive Office of
                                        Elder Affairs.
                                       --Executive Office of
                                        Environmental Affairs.
                                       --Executive Office of
                                        Health and Human
                                        Service.
                                       --Executive Office of
                                        Labor.
                                       --Executive Office of
                                        Public Safety.
                                       --Executive Office of
                                        Transportation and
                                        Construction.
Michigan.............................  Department of            Construction-grade       --WTO GPA.
                                        Management and Budget.   steel (including        --U.S.-Australia FTA.
                                                                 requirements on         --U.S.-Chile FTA.
                                                                 subcontracts); motor    --U.S.-Singapore FTA.
                                                                 vehicles; coal.
Minnesota............................  Executive branch         .......................  --WTO GPA.
                                        agencies.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Singapore FTA.
Mississippi..........................  Department of Finance    Services...............  --WTO GPA.
                                        and Administration.                              --DR-CAFTA.
                                                                                         --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Peru TPA.
                                                                                         --U.S.-Singapore FTA.
Missouri.............................  --Office of              .......................  --WTO GPA.
                                        Administration.
                                       --Division of                                     --U.S.-Chile FTA.
                                        Purchasing and                                   --U.S.-Singapore FTA.
                                        Materials Management.
Montana..............................  Executive branch         Goods..................  --WTO GPA.
                                        agencies.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Singapore FTA.
Nebraska.............................  Central Procurement      .......................  --WTO GPA.
                                        Agency.
                                                                                         --DR-CAFTA.
                                                                                         --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Singapore FTA.
New Hampshire........................  Central Procurement      Construction-grade       --WTO GPA.
                                        Agency.                  steel (including        --DR-CAFTA.
                                                                 requirements on         --U.S.-Australia FTA.
                                                                 subcontracts), motor    --U.S.-Chile FTA.
                                                                 vehicles; coal.         --U.S.-Morocco FTA.
                                                                                         --U.S.-Singapore FTA.

[[Page 37]]

 
New York.............................  --State agencies         Construction-grade       --WTO GPA.
                                       --State university        steel (including        --DR-CAFTA.
                                        system..                 requirements on         --U.S.-Australia FTA.
                                       --Public authorities      subcontracts); motor    --U.S.-Chile FTA.
                                        and public benefit       vehicles; coal;         --U.S.-Morocco FTA.
                                        corporations, with the   transit cars, buses     --U.S.-Peru TPA.
                                        exception of those       and related equipment.  --U.S.-Singapore FTA.
                                        entities with multi-
                                        State mandates..
North Dakota.........................  .......................  .......................  --U.S.-EC Exchange of
                                                                                          Letters (applies to EC
                                                                                          Member States and only
                                                                                          where the State
                                                                                          considers out-of-State
                                                                                          suppliers).
Oklahoma.............................  Department of Central    Construction services;   --WTO GPA.
                                        Services and all State   construction-grade      --U.S.-Australia FTA.
                                        agencies and             steel (including        --U.S.-Chile FTA.
                                        departments subject to   requirements on         --U.S.-Peru TPA.
                                        the Oklahoma Central     subcontracts); motor    --U.S.-Singapore FTA.
                                        Purchasing Act.          vehicles; coal.
Oregon...............................  Department of            .......................  --WTO GPA.
                                        Administrative                                   --DR-CAFTA (except
                                        Services.                                         Honduras).
                                                                                         --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Singapore FTA.
Pennsylvania.........................  Executive branch         Construction-grade       --WTO GPA.
                                        agencies, including:     steel (including        --U.S.-Australia FTA.
                                       --Governor's Office....   requirements on         --U.S.-Chile FTA.
                                       --Department of the       subcontracts); motor    --U.S.-Singapore FTA.
                                        Auditor General..        vehicles; coal.
                                       --Treasury Department..
                                       --Department of
                                        Agriculture..
                                       --Department of Banking
                                       --Pennsylvania
                                        Securities Commission.
                                       --Department of Health.
                                       --Department of
                                        Transportation.
                                       --Insurance Department.
                                       --Department of Aging..
                                       --Department of
                                        Correction.
                                       --Department of Labor
                                        and Industry.
                                       --Department of
                                        Military Affairs.
                                       --Office of Attorney
                                        General.
                                       --Department of General
                                        Services.
                                       --Department of
                                        Education.
                                       --Public Utility
                                        Commission.
                                       --Department of Revenue
                                       --Department of State..
                                       --Pennsylvania State
                                        Police.
                                       --Department of Public
                                        Welfare.
                                       --Fish Commission......
                                       --Game Commission......
                                       --Department of
                                        Commerce.
                                       --Board of Probation
                                        and Parole.
                                       --Liquor Control Board.
                                       --Milk Marketing Board.
                                       --Lieutenant Governor's
                                        Office.
                                       --Department of
                                        Community Affairs.
                                       --Pennsylvania
                                        Historical and Museum
                                        Commission.
                                       --Pennsylvania
                                        Emergency Management
                                        Agency.
                                       --State Civil Service
                                        Commission.
                                       --Pennsylvania Public
                                        Television Network.

[[Page 38]]

 
                                       --Department of
                                        Environmental
                                        Resources.
                                       --State Tax
                                        Equalization Board.
                                       --Department of Public
                                        Welfare.
                                       --State Employees'
                                        Retirement System.
                                       --Pennsylvania
                                        Municipal Retirement
                                        Board.
                                       --Public School
                                        Employees' Retirement
                                        System.
                                       --Pennsylvania Crime
                                        Commission.
                                       --Executive Offices....
Rhode Island.........................  Executive branch         Boats, automobiles,      --WTO GPA.
                                        agencies.                buses and related       --DR-CAFTA (except
                                                                 equipment.               Honduras).
                                                                                         --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Singapore FTA.
South Dakota.........................  Central Procuring        Beef...................  --WTO GPA.
                                        Agency (including                                --DR-CAFTA.
                                        universities and penal                           --U.S.-Australia FTA.
                                        institutions).
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Singapore FTA.
Tennessee............................  Executive branch         Services; construction.  --WTO GPA-U.S.-
                                        agencies.                                         Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Singapore FTA.
Texas................................  Texas Building and       .......................  --WTO GPA.
                                        Procurement Commission.                          --DR-CAFTA.
                                                                                         --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Peru TPA.
                                                                                         --U.S.-Singapore FTA.
Utah.................................  Executive branch         .......................  --WTO GPA.
                                        agencies.                                        --DR-CAFTA (except
                                                                                          Honduras).
                                                                                         --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Peru TPA.
                                                                                         --U.S.-Singapore FTA.
Vermont..............................  Executive branch         .......................  --WTO GPA.
                                        agencies.                                        --DR-CAFTA.
                                                                                         --U.S.-Australia FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Singapore FTA.
Washington...........................  Executive branch         Fuel; paper products;    --WTO GPA.
                                        agencies, including:     boats; ships; and       --DR-CAFTA.
                                       --General                 vessels.                --U.S.-Australia FTA.
                                        Administration..                                 --U.S.-Chile FTA.
                                       --Department of                                   --U.S.-Morocco FTA.
                                        Transportation..                                 --U.S.-Singapore FTA.
                                       --State Universities...
West Virginia........................  .......................  .......................  --U.S.-EC Exchange of
                                                                                          Letters (applies to EC
                                                                                          Member States and only
                                                                                          where the State
                                                                                          considers out-of-State
                                                                                          suppliers).

[[Page 39]]

 
Wisconsin............................  Executive branch         .......................  --WTO GPA.
                                        agencies, including:                             --U.S.-Chile FTA.
                                       --Department of                                   --U.S.-Singapore FTA.
                                        Administration..
                                       --State Correctional
                                        Institutions..
                                       --Department of
                                        Development..
                                       --Educational
                                        Communications Board..
                                       --Department of
                                        Employment Relations..
                                       --State Historical
                                        Society..
                                       --Department of Health
                                        and Social Services..
                                       --Insurance
                                        Commissioner..
                                       --Department of
                                        Justice..
                                       --Lottery Board........
                                       --Department of Natural
                                        Resources..
                                       --Administration for
                                        Public Instruction..
                                       --Racing Board.........
                                       --Department of
                                        Revenue..
                                       --State Fair Park
                                        Board..
                                       --Department of
                                        Transportation..
                                       --State University
                                        System..
Wyoming..............................  --Procurement Services   Construction-grade       --WTO GPA.
                                        Division                 steel (including        --DR-CAFTA.
                                       --Wyoming Department of   requirements on         --U.S.-Australia FTA.
                                        Transportation..         subcontracts); motor    --U.S.-Chile FTA.
                                       --University of           vehicles; coal.         --U.S.-Morocco FTA.
                                        Wyoming..                                        --U.S.-Singapore FTA.
----------------------------------------------------------------------------------------------------------------
      Other sub-federal entities           Entities covered            Exclusions         Relevant international
                                                                                                agreements
----------------------------------------------------------------------------------------------------------------
Puerto Rico..........................  --Department of State    Construction services..  --DR-CAFTA.
                                       --Department of                                   --U.S.-Peru TPA.
                                        Justice..
                                       --Department of the      --Department of
                                        Treasury.                Economic Development
                                       .......................   and Commerce.
                                       --Department of Labor
                                        and Human Resources.
                                       --Department of Natural
                                        and Environmental
                                        Resources.
                                       --Department of
                                        Consumer Affairs.
                                       --Department of Sports
                                        and Recreation.
Port Authority of New York and New     .......................  Restrictions attached    --WTO GPA (except
 Jersey.                                                         to Federal funds for     Canada).
                                                                 airport projects;       --U.S.-Chile FTA.
                                                                 maintenance, repair     --U.S.-Singapore FTA.
                                                                 and operating
                                                                 materials and supplies.
Port of Baltimore....................  .......................  Restrictions attached    --WTO GPA (except
                                                                 to Federal funds for     Canada).
                                                                 airport projects.       --U.S.-Chile FTA.
                                                                                         --U.S.-Singapore FTA.
New York Power Authority.............  .......................  Restrictions attached    --WTO GPA (except
                                                                 to Federal funds for     Canada).
                                                                 airport projects;       --U.S.-Chile FTA.
                                                                 conditions specified    --U.S.-Singapore FTA.
                                                                 for the State of New
                                                                 York
Massachusetts Port Authority.........  .......................  .......................  U.S.-EC Exchange of
                                                                                          Letters (applies to EC
                                                                                          Member States and only
                                                                                          where the Port
                                                                                          Authority considers
                                                                                          out-of-State
                                                                                          suppliers).

[[Page 40]]

 
Boston, Chicago, Dallas, Detroit,      .......................  .......................  U.S.-EC Exchange of
 Indianapolis, Nashville, and San                                                         Letters (only applies
 Antonio.                                                                                 to EC Member States
                                                                                          and where the city
                                                                                          considers out-of-city
                                                                                          suppliers).
----------------------------------------------------------------------------------------------------------------
            Other entities                 Entities covered            Exclusions         Relevant international
                                                                                                agreements
----------------------------------------------------------------------------------------------------------------
Rural Utilities Service (waiver of     Any recipient..........  .......................  --WTO GPA.
 Buy American restriction on                                                             --DR-CAFTA.
 financing for all power generation                                                      --NAFTA.
 projects).                                                                              --U.S.-Australia FTA.
                                                                                         --U.S.-Bahrain FTA.
                                                                                         --U.S.-Chile FTA.
                                                                                         --U.S.-Morocco FTA.
                                                                                         --U.S.-Oman FTA.
                                                                                         --U.S.-Peru TPA.
                                                                                         --U.S.-Singapore FTA.
Rural Utilities Service (waiver of     Any recipient..........  .......................  --NAFTA.
 Buy American restriction on                                                             --U.S.-Israel FTA.
 financing for telecommunications
 projects).
U.S. Department of Agriculture, Rural  Any recipient..........  .......................  U.S.-Canada Agreement.
 Utilities Services, Water and Waste
 Disposal Programs (exclusion of
 Canadian iron, steel and
 manufactured products from domestic
 purchasing restriction in Section
 1605 of American Recovery and
 Reinvestment Act of 2009).
U.S. Department of Agriculture, Rural  Any recipient..........  .......................  U.S.-Canada Agreement.
 Housing Service, Community
 Facilities Program (exclusion of
 Canadian iron, steel and
 manufactured products from domestic
 purchasing restriction in Section
 1605 of American Recovery and
 Reinvestment Act of 2009).
U.S. Department of Energy, Office of   Any recipient..........  .......................  U.S.-Canada Agreement.
 Energy Efficiency and Renewable
 Energy, Energy Efficiency and
 Conservation Block Grants (exclusion
 of Canadian iron, steel and
 manufactured products from domestic
 purchasing restriction in Section
 1605 of American Recovery and
 Reinvestment Act of 2009).
U.S. Department of Energy, Office of   Any recipient..........  .......................  U.S.-Canada Agreement.
 Energy Efficiency and Renewable
 Energy, State Energy Program
 (exclusion of Canadian iron, steel
 and manufactured products from
 domestic purchasing restriction in
 Section 1605 of American Recovery
 and Reinvestment Act of 2009 (ARRA).

[[Page 41]]

 
U.S. Department of Housing and Urban   Any recipient..........  .......................  U.S.-Canada Agreement.
 Development, Office of Community
 Planning and Development, Community
 Development Block Grants Recovery
 (CDBG-R) (exclusion of Canadian
 iron, steel and manufactured
 products from domestic purchasing
 restriction in Section 1605 of
 American Recovery and Reinvestment
 Act of 2009).
U.S. Department of Housing and Urban   Any recipient..........  .......................  U.S.-Canada Agreement.
 Development, Office of Public and
 Indian Housing, Public Housing
 Capital Fund (exclusion of Canadian
 iron, steel and manufactured
 products from domestic purchasing
 restriction in Section 1605 of
 American Recovery and Reinvestment
 Act of 2009).
U.S. Environmental Protection Clean    Any recipient..........  .......................  U.S.-Canada Agreement.
 Water and Drinking Water State
 Revolving Funds Agency for projects
 funded by reallocated ARRA funds
 where the contracts are signed after
 February 17, 2010 (exclusion of
 Canadian iron, steel and
 manufactured products from domestic
 purchasing restriction in Section
 1605 of American Recovery and
 Reinvestment Act of 2009).
----------------------------------------------------------------------------------------------------------------

    General Exceptions: The following restrictions and exceptions are 
excluded from U.S. obligations under international agreements:
    1. The restrictions attached to Federal funds to States for mass 
transit and highway projects.
    2. Dredging.
    The World Trade Organization Government Procurement Agreement (WTO 
GPA) Parties: Aruba, Austria, Belgium, Bulgaria, Canada, Chinese Taipei 
(Taiwan), Cyprus, Czech Republic, Denmark, Estonia, Finland, France, 
Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, 
Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, 
Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, 
Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and 
United Kingdom.
    The Free Trade Agreements and the respective Parties to the 
agreements are:
    (1) Dominican Republic-Central America-United States Free Trade 
Agreement (DR-CAFTA): Costa Rica, Dominican Republic, El Salvador, 
Guatemala, Honduras, and Nicaragua;
    (2) North American Free Trade Agreement (NAFTA): Canada and Mexico;
    (3) United States-Australia Free Trade Agreement (U.S.-Australia 
FTA);
    (4) United States-Bahrain Free Trade Agreement (U.S.-Bahrain FTA);
    (5) United States-Chile Free Trade Agreement (U.S.-Chile FTA);
    (6) United States-Israel Free Trade Agreement (U.S.-Israel FTA);
    (7) United States-Morocco Free Trade Agreement (U.S.-Morocco FTA);
    (8) United States-Oman Free Trade Agreement (U.S.-Oman FTA);
    (9) United States-Peru Trade Promotion Agreement (U.S.-Peru TPA); 
and
    (10) United States-Singapore Free Trade Agreement (U.S.-Singapore 
FTA).
    United States-European Communities Exchange of Letters (May 30, 
1995) (U.S.-EC Exchange of Letters) applies to EC Member States: 
Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, 
Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, 
Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, 
Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom.
    Agreement between the Government of Canada and the Government of the 
United States of

[[Page 42]]

America on Government Procurement (Feb. 10, 2010) (U.S.-Canada 
Agreement): Applies only to Canada.

[75 FR 14324, Mar. 25, 2010]



  Subpart C_Wage Rate Requirements Under Section 1606 of the American 
                  Recovery and Reinvestment Act of 2009



Sec. 176.180  Procedure.

    The award official shall insert the standard award term in this 
subpart in all awards funded in whole or in part with Recovery Act 
funds.



Sec. 176.190  Award term--Wage rate requirements under Section 1606 of the Recovery Act.

    When issuing announcements or requesting applications for Recovery 
Act programs or activities that may involve construction, alteration, 
maintenance, or repair the agency shall use the award term described in 
the following paragraphs:
    (a) Section 1606 of the Recovery Act requires that all laborers and 
mechanics employed by contractors and subcontractors on projects funded 
directly by or assisted in whole or in part by and through the Federal 
Government pursuant to the Recovery Act shall be paid wages at rates not 
less than those prevailing on projects of a character similar in the 
locality as determined by the Secretary of Labor in accordance with 
subchapter IV of chapter 31 of title 40, United States Code.
    Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40 
U.S.C. 3145, the Department of Labor has issued regulations at 29 CFR 
parts 1, 3, and 5 to implement the Davis-Bacon and related Acts. 
Regulations in 29 CFR 5.5 instruct agencies concerning application of 
the standard Davis-Bacon contract clauses set forth in that section. 
Federal agencies providing grants, cooperative agreements, and loans 
under the Recovery Act shall ensure that the standard Davis-Bacon 
contract clauses found in 29 CFR 5.5(a) are incorporated in any 
resultant covered contracts that are in excess of $2,000 for 
construction, alteration or repair (including painting and decorating).
    (b) For additional guidance on the wage rate requirements of section 
1606, contact your awarding agency. Recipients of grants, cooperative 
agreements and loans should direct their initial inquiries concerning 
the application of Davis-Bacon requirements to a particular federally 
assisted project to the Federal agency funding the project. The 
Secretary of Labor retains final coverage authority under Reorganization 
Plan Number 14.



 Subpart D_Single Audit Information for Recipients of Recovery Act Funds



Sec. 176.200  Procedure.

    The award official shall insert the standard award term in this 
subpart in all awards funded in whole or in part with Recovery Act 
funds.



Sec. 176.210  Award term--Recovery Act transactions listed in Schedule of

Expenditures of Federal Awards and Recipient Responsibilities for Informing 
          Subrecipients.

    The award term described in this section shall be used by agencies 
to clarify recipient responsibilities regarding tracking and documenting 
Recovery Act expenditures:
    (a) To maximize the transparency and accountability of funds 
authorized under the American Recovery and Reinvestment Act of 2009 
(Pub. L. 111-5) (Recovery Act) as required by Congress and in accordance 
with 2 CFR 215.21 ``Uniform Administrative Requirements for Grants and 
Agreements'' and OMB Circular A-102 Common Rules provisions, recipients 
agree to maintain records that identify adequately the source and 
application of Recovery Act funds. OMB Circular A-102 is available at 
http://www.whitehouse.gov/omb/circulars/a102/a102.html.
    (b) For recipients covered by the Single Audit Act Amendments of 
1996 and OMB Circular A-133, ``Audits of States, Local Governments, and 
Non-Profit Organizations,'' recipients agree to separately identify the 
expenditures for Federal awards under the Recovery Act on the Schedule 
of Expenditures of Federal Awards (SEFA) and the Data Collection Form 
(SF-SAC) required by OMB Circular A-133. OMB Circular A-133 is available 
at http://www.whitehouse.gov/omb/circulars/a133/

[[Page 43]]

a133.html. This shall be accomplished by identifying expenditures for 
Federal awards made under the Recovery Act separately on the SEFA, and 
as separate rows under Item 9 of Part III on the SF-SAC by CFDA number, 
and inclusion of the prefix ``ARRA-'' in identifying the name of the 
Federal program on the SEFA and as the first characters in Item 9d of 
Part III on the SF-SAC.
    (c) Recipients agree to separately identify to each subrecipient, 
and document at the time of subaward and at the time of disbursement of 
funds, the Federal award number, CFDA number, and amount of Recovery Act 
funds. When a recipient awards Recovery Act funds for an existing 
program, the information furnished to subrecipients shall distinguish 
the subawards of incremental Recovery Act funds from regular subawards 
under the existing program.
    (d) Recipients agree to require their subrecipients to include on 
their SEFA information to specifically identify Recovery Act funding 
similar to the requirements for the recipient SEFA described above. This 
information is needed to allow the recipient to properly monitor 
subrecipient expenditure of ARRA funds as well as oversight by the 
Federal awarding agencies, Offices of Inspector General and the 
Government Accountability Office.

                        PARTS 177	179 [RESERVED]



PART 180_OMB GUIDELINES TO AGENCIES ON GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)--Table of Contents



Sec.
180.5 What does this part do?
180.10 How is this part organized?
180.15 To whom do these guidelines apply?
180.20 What must a Federal agency do to implement these guidelines?
180.25 What must a Federal agency address in its implementation of these 
          guidelines?
180.30 Where does a Federal agency implement these guidelines?
180.35 By when must a Federal agency implement these guidelines?
180.40 How are these guidelines maintained?
180.45 Do these guidelines cover persons who are disqualified, as well 
          as those who are excluded from nonprocurement transactions?

                            Subpart A_General

180.100 How are subparts A through I organized?
180.105 How is this part written?
180.110 Do terms in this part have special meanings?
180.115 What do subparts A through I of this part do?
180.120 Do subparts A through I of this part apply to me?
180.125 What is the purpose of the nonprocurement debarment and 
          suspension system?
180.130 How does an exclusion restrict a person's involvement in covered 
          transactions?
180.135 May a Federal agency grant an exception to let an excluded 
          person participate in a covered transaction?
180.140 Does an exclusion under the nonprocurement system affect a 
          person's eligibility for Federal procurement contracts?
180.145 Does an exclusion under the Federal procurement system affect a 
          person's eligibility to participate in nonprocurement 
          transactions?
180.150 Against whom may a Federal agency take an exclusion action?
180.155 How do I know if a person is excluded?

                     Subpart B_Covered Transactions

180.200 What is a covered transaction?
180.205 Why is it important to know if a particular transaction is a 
          covered transaction?
180.210 Which nonprocurement transactions are covered transactions?
180.215 Which nonprocurement transactions are not covered transactions?
180.220 Are any procurement contracts included as covered transactions?
180.225 How do I know if a transaction in which I may participate is a 
          covered transaction?

Subpart C_Responsibilities of Participants Regarding Transactions Doing 
                       Business With Other Persons

180.300 What must I do before I enter into a covered transaction with 
          another person at the next lower tier?
180.305 May I enter into a covered transaction with an excluded or 
          disqualified person?
180.310 What must I do if a Federal agency excludes a person with whom I 
          am already doing business in a covered transaction?

[[Page 44]]

180.315 May I use the services of an excluded person as a principal 
          under a covered transaction?
180.320 Must I verify that principals of my covered transactions are 
          eligible to participate?
180.325 What happens if I do business with an excluded person in a 
          covered transaction?
180.330 What requirements must I pass down to persons at lower tiers 
          with whom I intend to do business?

            Disclosing Information--Primary Tier Participants

180.335 What information must I provide before entering into a covered 
          transaction with a Federal agency?
180.340 If I disclose unfavorable information required under Sec. 
          180.335 will I be prevented from participating in the 
          transaction?
180.345 What happens if I fail to disclose information required under 
          Sec. 180.335?
180.350 What must I do if I learn of information required under Sec. 
          180.335 after entering into a covered transaction with a 
          Federal agency?

             Disclosing Information--Lower Tier Participants

180.355 What information must I provide to a higher tier participant 
          before entering into a covered transaction with that 
          participant?
180.360 What happens if I fail to disclose information required under 
          Sec. 180.355?
180.365 What must I do if I learn of information required under Sec. 
          180.355 after entering into a covered transaction with a 
          higher tier participant?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

180.400 May I enter into a transaction with an excluded or disqualified 
          person?
180.405 May I enter into a covered transaction with a participant if a 
          principal of the transaction is excluded?
180.410 May I approve a participant's use of the services of an excluded 
          person?
180.415 What must I do if a Federal agency excludes the participant or a 
          principal after I enter into a covered transaction?
180.420 May I approve a transaction with an excluded or disqualified 
          person at a lower tier?
180.425 When do I check to see if a person is excluded or disqualified?
180.430 How do I check to see if a person is excluded or disqualified?
180.435 What must I require of a primary tier participant?
180.440 What action may I take if a primary tier participant knowingly 
          does business with an excluded or disqualified person?
180.445 What action may I take if a primary tier participant fails to 
          disclose the information required under Sec. 180.335?
180.450 What may I do if a lower tier participant fails to disclose the 
          information required under Sec. 180.355 to the next higher 
          tier?

                 Subpart E_Excluded Parties List System

180.500 What is the purpose of the Excluded Parties List System (EPLS)?
180.505 Who uses the EPLS?
180.510 Who maintains the EPLS?
180.515 What specific information is in the EPLS?
180.520 Who places the information into the EPLS?
180.525 Whom do I ask if I have questions about a person in the EPLS?
180.530 Where can I find the EPLS?

   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions

180.600 How do suspension and debarment actions start?
180.605 How does suspension differ from debarment?
180.610 What procedures does a Federal agency use in suspension and 
          debarment actions?
180.615 How does a Federal agency notify a person of a suspension or 
          debarment action?
180.620 Do Federal agencies coordinate suspension and debarment actions?
180.625 What is the scope of a suspension or debarment?
180.630 May a Federal agency impute the conduct of one person to 
          another?
180.635 May a Federal agency settle a debarment or suspension action?
180.640 May a settlement include a voluntary exclusion?
180.645 Do other Federal agencies know if an agency agrees to a 
          voluntary exclusion?

                          Subpart G_Suspension

180.700 When may the suspending official issue a suspension?
180.705 What does the suspending official consider in issuing a 
          suspension?
180.710 When does a suspension take effect?
180.715 What notice does the suspending official give me if I am 
          suspended?
180.720 How may I contest a suspension?
180.725 How much time do I have to contest a suspension?
180.730 What information must I provide to the suspending official if I 
          contest the suspension?
180.735 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the suspension is based?

[[Page 45]]

180.740 Are suspension proceedings formal?
180.745 How is fact-finding conducted?
180.750 What does the suspending official consider in deciding whether 
          to continue or terminate my suspension?
180.755 When will I know whether the suspension is continued or 
          terminated?
180.760 How long may my suspension last?

                           Subpart H_Debarment

180.800 What are the causes for debarment?
180.805 What notice does the debarring official give me if I am proposed 
          for debarment?
180.810 When does a debarment take effect?
180.815 How may I contest a proposed debarment?
180.820 How much time do I have to contest a proposed debarment?
180.825 What information must I provide to the debarring official if I 
          contest the proposed debarment?
180.830 Under what conditions do I get an additional opportunity to 
          challenge the facts on which the proposed debarment is based?
180.835 Are debarment proceedings formal?
180.840 How is fact-finding conducted?
180.845 What does the debarring official consider in deciding whether to 
          debar me?
180.850 What is the standard of proof in a debarment action?
180.855 Who has the burden of proof in a debarment action?
180.860 What factors may influence the debarring official's decision?
180.865 How long may my debarment last?
180.870 When do I know if the debarring official debars me?
180.875 May I ask the debarring official to reconsider a decision to 
          debar me?
180.880 What factors may influence the debarring official during 
          reconsideration?
180.885 May the debarring official extend a debarment?

                          Subpart I_Definitions

180.900 Adequate evidence.
180.905 Affiliate.
180.910 Agent or representative.
180.915 Civil judgment.
180.920 Conviction.
180.925 Debarment.
180.930 Debarring official.
180.935 Disqualified.
180.940 Excluded or exclusion.
180.945 Excluded Parties List System (EPLS).
180.950 Federal agency.
180.955 Indictment.
180.960 Ineligible or ineligibility.
180.965 Legal proceedings.
180.970 Nonprocurement transaction.
180.975 Notice.
180.980 Participant.
180.985 Person.
180.990 Preponderance of the evidence.
180.995 Principal.
180.1000 Respondent.
180.1005 State.
180.1010 Suspending official.
180.1015 Suspension.
180.1020 Voluntary exclusion or voluntarily excluded.

Appendix to Part 180--Covered Transactions

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p.189; E.O. 12689, 3 CFR, 1989 Comp., p. 235.

    Source: 70 FR 51865, Aug. 31, 2005, unless otherwise noted.



Sec. 180.5  What does this part do?

    This part provides Office of Management and Budget (OMB) guidance 
for Federal agencies on the governmentwide debarment and suspension 
system for nonprocurement programs and activities.



Sec. 180.10  How is this part organized?

    This part is organized in two segments.
    (a) Sections 180.5 through 180.45 contain general policy direction 
for Federal agencies' use of the standards in subparts A through I of 
this part.
    (b) Subparts A through I of this part contain uniform governmentwide 
standards that Federal agencies are to use to specify--
    (1) The types of transactions that are covered by the nonprocurement 
debarment and suspension system;
    (2) The effects of an exclusion under that nonprocurement system, 
including reciprocal effects with the governmentwide debarment and 
suspension system for procurement;
    (3) The criteria and minimum due process to be used in 
nonprocurement debarment and suspension actions; and
    (4) Related policies and procedures to ensure the effectiveness of 
those actions.



Sec. 180.15  To whom does the guidance apply?

    The guidance provides OMB guidance only to Federal agencies. 
Publication of the guidance in the CFR does not change its nature--it is 
guidance and not regulation. Federal agencies' implementation of the 
guidance governs the rights and responsibilities of other

[[Page 46]]

persons affected by the nonprocurement debarment and suspension system.



Sec. 180.20  What must a Federal agency do to implement these guidelines?

    As required by Section 3 of E.O. 12549, each Federal agency with 
nonprocurement programs and activities covered by subparts A through I 
of the guidance must issue regulations consistent with those subparts.



Sec. 180.25  What must a Federal agency address in its implementation of the guidance?

    Each Federal agency implementing regulation:
    (a) Must establish policies and procedures for that agency's 
nonprocurement debarment and suspension programs and activities that are 
consistent with the guidance. When adopted by a Federal agency, the 
provisions of the guidance has regulatory effect for that agency's 
programs and activities.
    (b) Must address some matters for which these guidelines give each 
Federal agency some discretion. Specifically, the regulation must--
    (1) Identify either the Federal agency head or the title of the 
designated official who is authorized to grant exceptions under Sec. 
180.135 to let an excluded person participate in a covered transaction.
    (2) State whether the agency includes as covered transactions an 
additional tier of contracts awarded under covered nonprocurement 
transactions, as permitted under Sec. 180.220(c).
    (3) Identify the method(s) an agency official may use, when entering 
into a covered transaction with a primary tier participant, to 
communicate to the participant the requirements described in Sec. 
180.435. Examples of methods are an award term that requires compliance 
as a condition of the award; an assurance of compliance obtained at time 
of application; or a certification.
    (4) State whether the Federal agency specifies a particular method 
that participants must use to communicate compliance requirements to 
lower-tier participants, as described in Sec. 180.330(a). If there is a 
specified method, the regulation needs to require agency officials, when 
entering into covered transactions with primary tier participants, to 
communicate that requirement.
    (c) May also, at the agency's option:
    (1) Identify any specific types of transactions that the Federal 
agency includes as ``nonprocurement transactions'' in addition to the 
examples provided in Sec. 180.970.
    (2) Identify any types of nonprocurement transactions that the 
Federal agency exempts from coverage under these guidelines, as 
authorized under Sec. 180.215(g)(2).
    (3) Identify specific examples of types of individuals who would be 
``principals'' under the Federal agency's nonprocurement programs and 
transactions, in addition to the types of individuals described at Sec. 
180.995.
    (4) Specify the Federal agency's procedures, if any, by which a 
respondent may appeal a suspension or debarment decision.
    (5) Identify by title the officials designated by the Federal agency 
head as debarring officials under Sec. 180.930 or suspending officials 
under Sec. 180.1010.
    (6) Include a subpart covering disqualifications, as authorized in 
Sec. 180.45.
    (7) Include any provisions authorized by OMB.

[70 FR 51865, Aug. 31, 2005, as amended at 71 FR 66432, Nov. 15, 2006]



Sec. 180.30  Where does a Federal agency implement these guidelines?

    Each Federal agency that participates in the governmentwide 
nonprocurement debarment and suspension system must issue a regulation 
implementing these guidelines within its chapter in subtitle B of this 
title of the Code of Federal Regulations.



Sec. 180.35  By when must a Federal agency implement these guidelines?

    Federal agencies must submit proposed regulations to the OMB for 
review within nine months of the issuance of these guidelines and issue 
final regulations within eighteen months of these guidelines.



Sec. 180.40  How are these guidelines maintained?

    The Interagency Committee on Debarment and Suspension established by 
section 4 of E.O. 12549 recommends to

[[Page 47]]

the OMB any needed revisions to the guidelines in this part. The OMB 
publishes proposed changes to the guidelines in the Federal Register for 
public comment, considers comments with the help of the Interagency 
Committee on Debarment and Suspension, and issues the final guidelines.



Sec. 180.45  Do these guidelines cover persons who are disqualified, as well

as those who are excluded from nonprocurement transactions?

    A Federal agency may add a subpart covering disqualifications to its 
regulation implementing these guidelines, but the guidelines in subparts 
A through I of this part--
    (a) Address disqualified persons only to--
    (1) Provide for their inclusion in the EPLS; and
    (2) State responsibilities of Federal agencies and participants to 
check for disqualified persons before entering into covered 
transactions.
    (b) Do not specify the--
    (1) Transactions for which a disqualified person is ineligible. 
Those transactions vary on a case-by-case basis, because they depend on 
the language of the specific statute, Executive order or regulation that 
caused the disqualification;
    (2) Entities to which a disqualification applies; or
    (3) Process that a Federal agency uses to disqualify a person. 
Unlike exclusion under subparts A through I of this part, 
disqualification is frequently not a discretionary action that a Federal 
agency takes, and may include special procedures.



                            Subpart A_General



Sec. 180.100  How are subparts A through I organized?

    (a) Each subpart contains information related to a broad topic or 
specific audience with special responsibilities, as shown in the 
following table:

----------------------------------------------------------------------------------------------------------------
              In subpart . . .                             You will find provisions related to . . .
----------------------------------------------------------------------------------------------------------------
A...........................................  general information about Subparts A through I of this part.
B...........................................  the types of transactions that are covered by the Governmentwide
                                               nonprocurement suspension and debarment system.
C...........................................  the responsibilities of persons who participate in covered
                                               transactions.
D...........................................  the responsibilities of Federal agency officials who are
                                               authorized to enter into covered transactions.
E...........................................  the responsibilities of Federal agencies for entering information
                                               into the EPLS
F...........................................  the general principles governing suspension, debarment, voluntary
                                               exclusion and settlement.
G...........................................  suspension actions.
H...........................................  debarment actions.
I...........................................  definitions of terms used in this part.
----------------------------------------------------------------------------------------------------------------

    (b) The following table shows which subparts may be of special 
interest to you, depending on who you are:

------------------------------------------------------------------------
          If you are . . .                   See Subpart(s) . . .
------------------------------------------------------------------------
(1) a participant or principal in a  A, B, C and I.
 nonprocurement transaction.
(2) a respondent in a suspension     A, B, F, G and I.
 action.
(3) a respondent in a debarment      A, B, F, H and I.
 action.
(4) a suspending official..........  A, B, E, F, G and I.
(5) a debarring official...........  A, B, D, F, H and I.
(6) an Federal agency official       A, B, D, E and I.
 authorized to enter into a covered
 transaction.
------------------------------------------------------------------------



Sec. 180.105  How is this part written?

    (a) This part uses a ``plain language'' format to make it easier for 
the general public and business community to use. The section headings 
and text, often in the form of questions and answers, must be read 
together.
    (b) Pronouns used within this part, such as ``I'' and ``you,'' 
change from subpart to subpart depending on the audience being 
addressed.
    (c) The ``Covered Transactions'' diagram in the appendix to this 
part shows the levels or ``tiers'' at which a Federal agency may enforce 
an exclusion.

[[Page 48]]



Sec. 180.110  Do terms in this part have special meanings?

    This part uses terms throughout the text that have special meaning. 
Those terms are defined in subpart I of this part. For example, three 
important terms are--
    (a) Exclusion or excluded, which refers only to discretionary 
actions taken by a suspending or debarring official under Executive 
Order 12549 and Executive Order 12689 or under the Federal Acquisition 
Regulation (48 CFR part 9, subpart 9.4);
    (b) Disqualification or disqualified, which refers to prohibitions 
under specific statutes, executive orders (other than Executive Order 
12549 and Executive Order 12689), or other authorities. 
Disqualifications frequently are not subject to the discretion of a 
Federal agency official, may have a different scope than exclusions, or 
have special conditions that apply to the disqualification; and
    (c) Ineligibility or ineligible, which generally refers to a person 
who is either excluded or disqualified.



Sec. 180.115  What do Subparts A through I of this part do?

    Subparts A through I of this part provide for reciprocal exclusion 
of persons who have been excluded under the Federal Acquisition 
Regulation, and provide for the consolidated listing of all persons who 
are excluded, or disqualified by statute, executive order or other legal 
authority.



Sec. 180.120  Do subparts A through I of this part apply to me?

    Portions of subparts A through I of this part (see table at Sec. 
180.100(b)) apply to you if you are a--
    (a) Person who has been, is, or may reasonably be expected to be, a 
participant or principal in a covered transaction;
    (b) Respondent (a person against whom a Federal agency has initiated 
a debarment or suspension action);
    (c) Federal agency debarring or suspending official; or
    (d) Federal agency official who is authorized to enter into covered 
transactions with non-Federal parties.



Sec. 180.125  What is the purpose of the nonprocurement debarment and suspension system?

    (a) To protect the public interest, the Federal Government ensures 
the integrity of Federal programs by conducting business only with 
responsible persons.
    (b) A Federal agency uses the nonprocurement debarment and 
suspension system to exclude from Federal programs persons who are not 
presently responsible.
    (c) An exclusion is a serious action that a Federal agency may take 
only to protect the public interest. A Federal agency may not exclude a 
person or commodity for the purposes of punishment.



Sec. 180.130  How does an exclusion restrict a person's involvement in covered transactions?

    With the exceptions stated in Sec. Sec. 180.135, 315, and 420, a 
person who is excluded by any Federal agency may not:
    (a) Be a participant in a Federal agency transaction that is a 
covered transaction; or
    (b) Act as a principal of a person participating in one of those 
covered transactions.



Sec. 180.135  May a Federal agency grant an exception to let an excluded person participate in a covered transaction?

    (a) A Federal agency head or designee may grant an exception 
permitting an excluded person to participate in a particular covered 
transaction. If the agency head or designee grants an exception, the 
exception must be in writing and state the reason(s) for deviating from 
the governmentwide policy in Executive Order 12549.
    (b) An exception granted by one Federal agency for an excluded 
person does not extend to the covered transactions of another Federal 
agency.



Sec. 180.140  Does an exclusion under the nonprocurement system affect a person's eligibility for Federal procurement contracts?

    If any Federal agency excludes a person under Executive Order 12549 
or Executive Order 12689, on or after August

[[Page 49]]

25, 1995, the excluded person is also ineligible for Federal procurement 
transactions under the FAR. Therefore, an exclusion under this part has 
reciprocal effect in Federal procurement transactions.



Sec. 180.145  Does an exclusion under the Federal procurement system 

affect a person's eligibility to participate in nonprocurement transactions?

    If any Federal agency excludes a person under the FAR on or after 
August 25, 1995, the excluded person is also ineligible to participate 
in Federal agencies' nonprocurement covered transactions. Therefore, an 
exclusion under the FAR has reciprocal effect in Federal nonprocurement 
transactions.



Sec. 180.150  Against whom may a Federal agency take an exclusion action?

    Given a cause that justifies an exclusion under this part, a Federal 
agency may exclude any person who has been, is, or may reasonably be 
expected to be a participant or principal in a covered transaction.



Sec. 180.155  How do I know if a person is excluded?

    Check the Governmentwide Excluded Parties List System (EPLS) to 
determine whether a person is excluded. The General Services 
Administration (GSA) maintains the EPLS and makes it available, as 
detailed in Subpart E of this part. When a Federal agency takes an 
action to exclude a person under the nonprocurement or procurement 
debarment and suspension system, the agency enters the information about 
the excluded person into the EPLS.



                     Subpart B_Covered Transactions



Sec. 180.200  What is a covered transaction?

    A covered transaction is a nonprocurement or procurement transaction 
that is subject to the prohibitions of this part. It may be a 
transaction at--
    (a) The primary tier, between a Federal agency and a person (see 
appendix to this part); or
    (b) A lower tier, between a participant in a covered transaction and 
another person.



Sec. 180.205  Why is it important if a particular transaction is a covered transaction?

    The importance of whether a transaction is a covered transaction 
depends upon who you are.
    (a) As a participant in the transaction, you have the 
responsibilities laid out in subpart C of this part. Those include 
responsibilities to the person or Federal agency at the next higher tier 
from whom you received the transaction, if any. They also include 
responsibilities if you subsequently enter into other covered 
transactions with persons at the next lower tier.
    (b) As a Federal official who enters into a primary tier 
transaction, you have the responsibilities laid out in subpart D of this 
part.
    (c) As an excluded person, you may not be a participant or principal 
in the transaction unless--
    (1) The person who entered into the transaction with you allows you 
to continue your involvement in a transaction that predates your 
exclusion, as permitted under Sec. 180.310 or Sec. 180.415; or
    (2) A Federal agency official obtains an exception from the agency 
head or designee to allow you to be involved in the transaction, as 
permitted under Sec. 180.135.



Sec. 180.210  Which nonprocurement transactions are covered transactions?

    All nonprocurement transactions, as defined in Sec. 180.970, are 
covered transactions unless listed in the exemptions under Sec. 
180.215.



Sec. 180.215  Which nonprocurement transactions are not covered transactions?

    The following types of nonprocurement transactions are not covered 
transactions:
    (a) A direct award to--
    (1) A foreign government or foreign governmental entity;
    (2) A public international organization;
    (3) An entity owned (in whole or in part) or controlled by a foreign 
government; or
    (4) Any other entity consisting wholly or partially of one or more 
foreign

[[Page 50]]

governments or foreign governmental entities.
    (b) A benefit to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted). For example, if 
a person receives social security benefits under the Supplemental 
Security Income provisions of the Social Security Act, 42 U.S.C. 1301 et 
seq., those benefits are not covered transactions and, therefore, are 
not affected if the person is excluded.
    (c) Federal employment.
    (d) A transaction that a Federal agency needs to respond to a 
national or agency-recognized emergency or disaster.
    (e) A permit, license, certificate or similar instrument issued as a 
means to regulate public health, safety or the environment, unless a 
Federal agency specifically designates it to be a covered transaction.
    (f) An incidental benefit that results from ordinary governmental 
operations.
    (g) Any other transaction if--
    (1) The application of an exclusion to the transaction is prohibited 
by law; or
    (2) A Federal agency's regulation exempts it from coverage under 
this part.



Sec. 180.220  Are any procurement contracts included as covered transactions?

    (a) Covered transactions under this part--
    (1) Do not include any procurement contracts awarded directly by a 
Federal agency; but
    (2) Do include some procurement contracts awarded by non-Federal 
participants in nonprocurement covered transactions.
    (b) Specifically, a contract for goods or services is a covered 
transaction if any of the following applies:
    (1) The contract is awarded by a participant in a nonprocurement 
transaction that is covered under Sec. 180.210, and the amount of the 
contract is expected to equal or exceed $25,000.
    (2) The contract requires the consent of an official of a Federal 
agency. In that case, the contract, regardless of the amount, always is 
a covered transaction, and it does not matter who awarded it. For 
example, it could be a subcontract awarded by a contractor at a tier 
below a nonprocurement transaction, as shown in the appendix to this 
part.
    (3) The contract is for Federally-required audit services.
    (c) A subcontract also is a covered transaction if,--
    (1) It is awarded by a participant in a procurement transaction 
under a nonprocurement transaction of a Federal agency that extends the 
coverage of paragraph (b)(1) of this section to additional tiers of 
contracts (see the diagram in the appendix to this part showing that 
optional lower tier coverage); and
    (2) The value of the subcontract is expected to equal or exceed 
$25,000.

[70 FR 51865, Aug. 31, 2005, as amended at 71 FR 66432, Nov. 15, 2006]



Sec. 180.225  How do I know if a transaction in which I may participate is a covered transaction?

    As a participant in a transaction, you will know that it is a 
covered transaction because the Federal agency regulations governing the 
transaction, the appropriate Federal agency official or participant at 
the next higher tier who enters into the transaction with you, will tell 
you that you must comply with applicable portions of this part.



Subpart C_Responsibilities of Participants Regarding Transactions Doing 
                       Business With Other Persons



Sec. 180.300  What must I do before I enter into a covered transaction with another person at the next lower tier?

    When you enter into a covered transaction with another person at the 
next lower tier, you must verify that the person with whom you intend to 
do business is not excluded or disqualified. You do this by:
    (a) Checking the EPLS; or
    (b) Collecting a certification from that person; or

[[Page 51]]

    (c) Adding a clause or condition to the covered transaction with 
that person.

[70 FR 51865, Aug. 31, 2005, as amended at 71 FR 66432, Nov. 15, 2006]



Sec. 180.305  May I enter into a covered transaction with an excluded or disqualified person?

    (a) You as a participant may not enter into a covered transaction 
with an excluded person, unless the Federal agency responsible for the 
transaction grants an exception under Sec. 180.135.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you have obtained an 
exception under the disqualifying statute, Executive order, or 
regulation.



Sec. 180.310  What must I do if a Federal agency excludes a person with whom I am already doing business in a covered transaction?

    (a) You as a participant may continue covered transactions with an 
excluded person if the transactions were in existence when the agency 
excluded the person. However, you are not required to continue the 
transactions, and you may consider termination. You should make a 
decision about whether to terminate and the type of termination action, 
if any, only after a thorough review to ensure that the action is proper 
and appropriate.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, unless the Federal 
agency responsible for the transaction grants an exception under Sec. 
180.135.



Sec. 180.315  May I use the services of an excluded person as a principal under a covered transaction?

    (a) You as a participant may continue to use the services of an 
excluded person as a principal under a covered transaction if you were 
using the services of that person in the transaction before the person 
was excluded. However, you are not required to continue using that 
person's services as a principal. You should make a decision about 
whether to discontinue that person's services only after a thorough 
review to ensure that the action is proper and appropriate.
    (b) You may not begin to use the services of an excluded person as a 
principal under a covered transaction unless the Federal agency 
responsible for the transaction grants an exception under Sec. 180.135.



Sec. 180.320  Must I verify that principals of my covered transactions are eligible to participate?

    Yes, you as a participant are responsible for determining whether 
any of your principals of your covered transactions is excluded or 
disqualified from participating in the transaction.
    You may decide the method and frequency by which you do so. You may, 
but you are not required to, check the EPLS.



Sec. 180.325  What happens if I do business with an excluded person in a covered transaction?

    If as a participant you knowingly do business with an excluded 
person, the Federal agency responsible for your transaction may disallow 
costs, annul or terminate the transaction, issue a stop work order, 
debar or suspend you, or take other remedies as appropriate.



Sec. 180.330  What requirements must I pass down to persons at lower tiers with whom I intend to do business?

    Before entering into a covered transaction with a participant at the 
next lower tier, you must require that participant to--
    (a) Comply with this subpart as a condition of participation in the 
transaction. You may do so using any method(s), unless the regulation of 
the Federal agency responsible for the transaction requires you to use 
specific methods.
    (b) Pass the requirement to comply with this subpart to each person 
with whom the participant enters into a covered transaction at the next 
lower tier.

[[Page 52]]

            Disclosing Information--Primary Tier Participants



Sec. 180.335  What information must I provide before entering into a covered transaction with a Federal agency?

    Before you enter into a covered transaction at the primary tier, you 
as the participant must notify the Federal agency office that is 
entering into the transaction with you, if you know that you or any of 
the principals for that covered transaction:
    (a) Are presently excluded or disqualified;
    (b) Have been convicted within the preceding three years of any of 
the offenses listed in Sec. 180.800(a) or had a civil judgment rendered 
against you for one of those offenses within that time period;
    (c) Are presently indicted for or otherwise criminally or civilly 
charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses listed in Sec. 180.800(a); or
    (d) Have had one or more public transactions (Federal, State, or 
local) terminated within the preceding three years for cause or default.



Sec. 180.340  If I disclose unfavorable information required under

Sec. 180.335, will I be prevented from participating in the transaction?

    As a primary tier participant, your disclosure of unfavorable 
information about yourself or a principal under Sec. 180.335 will not 
necessarily cause a Federal agency to deny your participation in the 
covered transaction. The agency will consider the information when it 
determines whether to enter into the covered transaction. The agency 
will also consider any additional information or explanation that you 
elect to submit with the disclosed information.



Sec. 180.345  What happens if I fail to disclose information required under Sec. 180.335?

    If a Federal agency later determines that you failed to disclose 
information under Sec. 180.335 that you knew at the time you entered 
into the covered transaction, the agency may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec. 180.350  What must I do if I learn of information required under 

Sec. 180.335 after entering into a covered transaction with a Federal agency?

    At any time after you enter into a covered transaction, you must 
give immediate written notice to the Federal agency office with which 
you entered into the transaction if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec. 
180.335; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec. 180.335.

             Disclosing Information--Lower Tier Participants



Sec. 180.355  What information must I provide to a higher tier participant before entering into a covered transaction with that participant?

    Before you enter into a covered transaction with a person at the 
next higher tier, you as a lower tier participant must notify that 
person if you know that you or any of the principals are presently 
excluded or disqualified.



Sec. 180.360  What happens if I fail to disclose information required under Sec. 180.355?

    If a Federal agency later determines that you failed to tell the 
person at the higher tier that you were excluded or disqualified at the 
time you entered into the covered transaction with that person, the 
agency may pursue any available remedies, including suspension and 
debarment.



Sec. 180.365  What must I do if I learn of information required under

Sec. 180.355 after entering into a covered transaction with a higher tier participant?

    At any time after you enter into a lower tier covered transaction 
with a person at a higher tier, you must provide immediate written 
notice to that person if you learn either that--

[[Page 53]]

    (a) You failed to disclose information earlier, as required by Sec. 
180.355; or
    (b) Due to changed circumstances, you or any of the principals for 
the transaction now meet any of the criteria in Sec. 180.355.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 180.400  May I enter into a transaction with an excluded or disqualified person?

    (a) You as a Federal agency official may not enter into a covered 
transaction with an excluded person unless you obtain an exception under 
Sec. 180.135.
    (b) You may not enter into any transaction with a person who is 
disqualified from that transaction, unless you obtain a waiver or 
exception under the statute, Executive order, or regulation that is the 
basis for the person's disqualification.



Sec. 180.405  May I enter into a covered transaction with a participant if a principal of the transaction is excluded?

    As a Federal agency official, you may not enter into a covered 
transaction with a participant if you know that a principal of the 
transaction is excluded, unless you obtain an exception under Sec. 
180.135.



Sec. 180.410  May I approve a participant's use of the services of an excluded person?

    After entering into a covered transaction with a participant, you as 
a Federal agency official may not approve a participant's use of an 
excluded person as a principal under that transaction, unless you obtain 
an exception under Sec. 180.135.



Sec. 180.415  What must I do if a Federal agency excludes the participant or a principal after I enter into a covered transaction?

    (a) You as a Federal agency official may continue covered 
transactions with an excluded person, or under which an excluded person 
is a principal, if the transactions were in existence when the person 
was excluded. You are not required to continue the transactions, 
however, and you may consider termination. You should make a decision 
about whether to terminate and the type of termination action, if any, 
only after a thorough review to ensure that the action is proper.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, or under which an 
excluded person is a principal, unless you obtain an exception under 
Sec. 180.135.



Sec. 180.420  May I approve a transaction with an excluded or disqualified person at a lower tier?

    If a transaction at a lower tier is subject to your approval, you as 
a Federal agency official may not approve--
    (a) A covered transaction with a person who is currently excluded, 
unless you obtain an exception under Sec. 180.135; or
    (b) A transaction with a person who is disqualified from that 
transaction, unless you obtain a waiver or exception under the statute, 
Executive order, or regulation that is the basis for the person's 
disqualification.



Sec. 180.425  When do I check to see if a person is excluded or disqualified?

    As a Federal agency official, you must check to see if a person is 
excluded or disqualified before you--
    (a) Enter into a primary tier covered transaction;
    (b) Approve a principal in a primary tier covered transaction;
    (c) Approve a lower tier participant if your agency's approval of 
the lower tier participant is required; or
    (d) Approve a principal in connection with a lower tier transaction 
if your agency's approval of the principal is required.



Sec. 180.430  How do I check to see if a person is excluded or disqualified?

    You check to see if a person is excluded or disqualified in two 
ways:
    (a) You as a Federal agency official must check the EPLS when you 
take any action listed in Sec. 180.425.
    (b) You must review information that a participant gives you, as 
required by Sec. 180.335, about its status or the status of the 
principals of a transaction.

[[Page 54]]



Sec. 180.435  What must I require of a primary tier participant?

    You as a Federal agency official must require each participant in a 
primary tier covered transaction to--
    (a) Comply with subpart C of this part as a condition of 
participation in the transaction; and
    (b) Communicate the requirement to comply with subpart C of this 
part to persons at the next lower tier with whom the primary tier 
participant enters into covered transactions.



Sec. 180.440  What action may I take if a primary tier participant knowingly does business with an excluded or disqualified person?

    If a participant knowingly does business with an excluded or 
disqualified person, you as a Federal agency official may refer the 
matter for suspension and debarment consideration. You may also disallow 
costs, annul or terminate the transaction, issue a stop work order, or 
take any other appropriate remedy.



Sec. 180.445  What action may I take if a primary tier participant fails to disclose the information required under Sec. 180.335?

    If you as a Federal agency official determine that a participant 
failed to disclose information, as required by Sec. 180.335, at the 
time it entered into a covered transaction with you, you may--
    (a) Terminate the transaction for material failure to comply with 
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and 
debarment.



Sec. 180.450  What action may I take if a lower tier participant fails 

to disclose the information required under Sec. 180.355 to the next higher tier?

    If you as a Federal agency official determine that a lower tier 
participant failed to disclose information, as required by Sec. 
180.355, at the time it entered into a covered transaction with a 
participant at the next higher tier, you may pursue any remedies 
available to you, including the initiation of a suspension or debarment 
action.



                 Subpart E_Excluded Parties List System



Sec. 180.500  What is the purpose of the Excluded Parties List System (EPLS)?

    The EPLS is a widely available source of the most current 
information about persons who are excluded or disqualified from covered 
transactions.



Sec. 180.505  Who uses the EPLS?

    (a) Federal agency officials use the EPLS to determine whether to 
enter into a transaction with a person, as required under Sec. 180.430.
    (b) Participants also may, but are not required to, use the EPLS to 
determine if--
    (1) Principals of their transactions are excluded or disqualified, 
as required under Sec. 180.320; or
    (2) Persons with whom they are entering into covered transactions at 
the next lower tier are excluded or disqualified.
    (c) The EPLS is available to the general public.



Sec. 180.510  Who maintains the EPLS?

    The General Services Administration (GSA) maintains the EPLS. When a 
Federal agency takes an action to exclude a person under the 
nonprocurement or procurement debarment and suspension system, the 
agency enters the information about the excluded person into the EPLS.



Sec. 180.515  What specific information is in the EPLS?

    (a) At a minimum, the EPLS indicates--
    (1) The full name (where available) and address of each excluded and 
disqualified person, in alphabetical order, with cross references if 
more than one name is involved in a single action;
    (2) The type of action;
    (3) The cause for the action;
    (4) The scope of the action;
    (5) Any termination date for the action;
    (6) The Federal agency and name and telephone number of the agency 
point of contact for the action; and
    (7) The Dun and Bradstreet Number (DUNS), or other similar code 
approved

[[Page 55]]

by the GSA, of the excluded or disqualified person, if available.
    (b)(1) The database for the EPLS includes a field for the Taxpayer 
Identification Number (TIN) (the social security number (SSN) for an 
individual) of an excluded or disqualified person.
    (2) Agencies disclose the SSN of an individual to verify the 
identity of an individual, only if permitted under the Privacy Act of 
1974 and, if appropriate, the Computer Matching and Privacy Protection 
Act of 1988, as codified in 5 U.S.C. 552(a).



Sec. 180.520  Who places the information into the EPLS?

    Federal agency officials who take actions to exclude persons under 
this part or officials who are responsible for identifying disqualified 
persons must enter the following information about those persons into 
the EPLS:
    (a) Information required by Sec. 180.515(a);
    (b) The Taxpayer Identification Number (TIN) of the excluded or 
disqualified person, including the social security number (SSN) for an 
individual, if the number is available and may be disclosed under law;
    (c) Information about an excluded or disqualified person, generally 
within five working days, after--
    (1) Taking an exclusion action;
    (2) Modifying or rescinding an exclusion action;
    (3) Finding that a person is disqualified; or
    (4) Finding that there has been a change in the status of a person 
who is listed as disqualified.



Sec. 180.525  Whom do I ask if I have questions about a person in the EPLS?

    If you have questions about a listed person in the EPLS, ask the 
point of contact for the Federal agency that placed the person's name 
into the EPLS. You may find the agency point of contact from the EPLS.



Sec. 180.530  Where can I find the EPLS?

    You may access the EPLS through the Internet, currently at http://
epls.arnet.gov or http://www.epls.gov.



   Subpart F_General Principles Relating to Suspension and Debarment 
                                 Actions



Sec. 180.600  How do suspension and debarment actions start?

    When Federal agency officials receive information from any source 
concerning a cause for suspension or debarment, they will promptly 
report it and the agency will investigate. The officials refer the 
question of whether to suspend or debar you to their suspending or 
debarring official for consideration, if appropriate.



Sec. 180.605  How does suspension differ from debarment?

    Suspension differs from debarment in that--

------------------------------------------------------------------------
      A suspending official . . .           A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a temporary    Imposes debarment for a
 status of in eligibility for             specified period as a final
 procurement and nonprocurement           determination that a person is
 transactions, pending completion of an   not presently responsible.
 investigation or legal proceedings.
(b) Must--
    (1) Have adequate evidence that
     there may be a cause for debarment
     of a person; and
    (2) Conclude that immediate action   Must conclude, based on a
     is necessary to protect the          preponderance of the evidence,
     Federal interest                     that the person has engaged in
                                          conduct that warrants
                                          debarment.
(c) Usually imposes the suspension       Imposes debarment after giving
 first, and then promptly notifies the    the respondent notice of the
 suspended person, giving the person an   action and an opportunity to
 opportunity to contest the suspension    contest the proposed
 and have it lifted.                      debarment.
------------------------------------------------------------------------



Sec. 180.610  What procedures does a Federal agency use in suspension and debarment actions?

    In deciding whether to suspend or debar you, a Federal agency 
handles the actions as informally as practicable, consistent with 
principles of fundamental fairness.
    (a) For suspension actions, a Federal agency uses the procedures in 
this subpart and subpart G of this part.

[[Page 56]]

    (b) For debarment actions, a Federal agency uses the procedures in 
this subpart and subpart H of this part.



Sec. 180.615  How does a Federal agency notify a person of a suspension or debarment action?

    (a) The suspending or debarring official sends a written notice to 
the last known street address, facsimile number, or e-mail address of--
    (1) You or your identified counsel; or
    (2) Your agent for service of process, or any of your partners, 
officers, directors, owners, or joint venturers.
    (b) The notice is effective if sent to any of these persons.



Sec. 180.620  Do Federal agencies coordinate suspension and debarment actions?

    Yes, when more than one Federal agency has an interest in a 
suspension or debarment, the agencies may consider designating one 
agency as the lead agency for making the decision. Agencies are 
encouraged to establish methods and procedures for coordinating their 
suspension and debarment actions.



Sec. 180.625  What is the scope of a suspension or debarment?

    If you are suspended or debarred, the suspension or debarment is 
effective as follows:
    (a) Your suspension or debarment constitutes suspension or debarment 
of all of your divisions and other organizational elements from all 
covered transactions, unless the suspension or debarment decision is 
limited--
    (1) By its terms to one or more specifically identified individuals, 
divisions, or other organizational elements; or
    (2) To specific types of transactions.
    (b) Any affiliate of a participant may be included in a suspension 
or debarment action if the suspending or debarring official--
    (1) Officially names the affiliate in the notice; and
    (2) Gives the affiliate an opportunity to contest the action.



Sec. 180.630  May a Federal agency impute the conduct of one person to another?

    For purposes of actions taken under this part, a Federal agency may 
impute conduct as follows:
    (a) Conduct imputed from an individual to an organization. A Federal 
agency may impute the fraudulent, criminal, or other improper conduct of 
any officer, director, shareholder, partner, employee, or other 
individual associated with an organization, to that organization when 
the improper conduct occurred in connection with the individual's 
performance of duties for or on behalf of that organization, or with the 
organization's knowledge, approval or acquiescence. The organization's 
acceptance of the benefits derived from the conduct is evidence of 
knowledge, approval or acquiescence.
    (b) Conduct imputed from an organization to an individual, or 
between individuals. A Federal agency may impute the fraudulent, 
criminal, or other improper conduct of any organization to an 
individual, or from one individual to another individual, if the 
individual to whom the improper conduct is imputed either participated 
in, had knowledge of, or reason to know of the improper conduct.
    (c) Conduct imputed from one organization to another organization. A 
Federal agency may impute the fraudulent, criminal, or other improper 
conduct of one organization to another organization when the improper 
conduct occurred in connection with a partnership, joint venture, joint 
application, association or similar arrangement, or when the 
organization to whom the improper conduct is imputed has the power to 
direct, manage, control or influence the activities of the organization 
responsible for the improper conduct. Acceptance of the benefits derived 
from the conduct is evidence of knowledge, approval or acquiescence.



Sec. 180.635  May a Federal agency settle a debarment or suspension action?

    Yes, a Federal agency may settle a debarment or suspension action at 
any time if it is in the best interest of the Federal Government.

[[Page 57]]



Sec. 180.640  May a settlement include a voluntary exclusion?

    Yes, if a Federal agency enters into a settlement with you in which 
you agree to be excluded, it is called a voluntary exclusion and has 
governmentwide effect.



Sec. 180.645  Do other Federal agencies know if an agency agrees to a voluntary exclusion?

    (a) Yes, the Federal agency agreeing to the voluntary exclusion 
enters information about it into the EPLS.
    (b) Also, any agency or person may contact the Federal agency that 
agreed to the voluntary exclusion to find out the details of the 
voluntary exclusion.



                          Subpart G_Suspension



Sec. 180.700  When may the suspending official issue a suspension?

    Suspension is a serious action. Using the procedures of this subpart 
and subpart F of this part, the suspending official may impose 
suspension only when that official determines that--
    (a) There exists an indictment for, or other adequate evidence to 
suspect, an offense listed under Sec. 180.800(a), or
    (b) There exists adequate evidence to suspect any other cause for 
debarment listed under Sec. 180.800(b) through (d); and
    (c) Immediate action is necessary to protect the public interest.



Sec. 180.705  What does the suspending official consider in issuing a suspension?

    (a) In determining the adequacy of the evidence to support the 
suspension, the suspending official considers how much information is 
available, how credible it is given the circumstances, whether or not 
important allegations are corroborated, and what inferences can 
reasonably be drawn as a result. During this assessment, the suspending 
official may examine the basic documents, including grants, cooperative 
agreements, loan authorizations, contracts, and other relevant 
documents.
    (b) An indictment, conviction, civil judgment, or other official 
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of 
suspension actions.
    (c) In deciding whether immediate action is needed to protect the 
public interest, the suspending official has wide discretion. For 
example, the suspending official may infer the necessity for immediate 
action to protect the public interest either from the nature of the 
circumstances giving rise to a cause for suspension or from potential 
business relationships or involvement with a program of the Federal 
Government.



Sec. 180.710  When does a suspension take effect?

    A suspension is effective when the suspending official signs the 
decision to suspend.



Sec. 180.715  What notice does the suspending official give me if I am suspended?

    After deciding to suspend you, the suspending official promptly 
sends you a Notice of Suspension advising you--
    (a) That you have been suspended;
    (b) That your suspension is based on--
    (1) An indictment;
    (2) A conviction;
    (3) Other adequate evidence that you have committed irregularities 
which seriously reflect on the propriety of further Federal Government 
dealings with you; or
    (4) Conduct of another person that has been imputed to you, or your 
affiliation with a suspended or debarred person;
    (c) Of any other irregularities in terms sufficient to put you on 
notice without disclosing the Federal Government's evidence;
    (d) Of the cause(s) upon which the suspending official relied under 
Sec. 180.700 for imposing suspension;
    (e) That your suspension is for a temporary period pending the 
completion of an investigation or resulting legal or debarment 
proceedings;
    (f) Of the applicable provisions of this subpart, subpart F of this 
part, and any other agency procedures governing suspension 
decisionmaking; and
    (g) Of the governmentwide effect of your suspension from procurement 
and nonprocurement programs and activities.

[[Page 58]]



Sec. 180.720  How may I contest a suspension?

    If you as a respondent wish to contest a suspension, you or your 
representative must provide the suspending official with information in 
opposition to the suspension. You may do this orally or in writing, but 
any information provided orally that you consider important must also be 
submitted in writing for the official record.



Sec. 180.725  How much time do I have to contest a suspension?

    (a) As a respondent you or your representative must either send, or 
make arrangements to appear and present, the information and argument to 
the suspending official within 30 days after you receive the Notice of 
Suspension.
    (b) The Federal agency taking the action considers the notice to be 
received by you--
    (1) When delivered, if the agency mails the notice to the last known 
street address, or five days after the agency sends it if the letter is 
undeliverable;
    (2) When sent, if the agency sends the notice by facsimile or five 
days after the agency sends it if the facsimile is undeliverable; or
    (3) When delivered, if the agency sends the notice by e-mail or five 
days after the agency sends it if the e-mail is undeliverable.



Sec. 180.730  What information must I provide to the suspending official if I contest the suspension?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the suspending official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Suspension. A general denial is insufficient to raise a 
genuine dispute over facts material to the suspension;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing Executive Order 12549 and all similar actions taken by 
Federal, State, or local agencies, including administrative agreements 
that affect only those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Suspension that grew out of facts relevant to the cause(s) stated in the 
notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the Federal agency taking the action may seek further 
criminal, civil or administrative action against you, as appropriate.



Sec. 180.735  Under what conditions do I get an additional opportunity to challenge the facts on which the suspension is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the suspending official determines that--
    (1) Your suspension is based upon an indictment, conviction, civil 
judgment, or other finding by a Federal, State, or local body for which 
an opportunity to contest the facts was provided;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Suspension;
    (3) The issues raised in your presentation in opposition to the 
suspension are not factual in nature, or are not material to the 
suspending official's initial decision to suspend, or the official's 
decision whether to continue the suspension; or
    (4) On the basis of advice from the Department of Justice, an office 
of the United States Attorney, a State attorney general's office, or a 
State or local prosecutor's office, that substantial interests of the 
government in pending or contemplated legal proceedings based on the 
same facts as the suspension would be prejudiced by conducting fact-
finding.
    (b) You will have an opportunity to challenge the facts if the 
suspending official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the suspension.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the suspending official or designee must conduct 
additional proceedings to resolve those facts.

[[Page 59]]



Sec. 180.740  Are suspension proceedings formal?

    (a) Suspension proceedings are conducted in a fair and informal 
manner. The suspending official may use flexible procedures to allow you 
to present matters in opposition. In so doing, the suspending official 
is not required to follow formal rules of evidence or procedure in 
creating an official record upon which the official will base a final 
suspension decision.
    (b) You as a respondent or your representative must submit any 
documentary evidence you want the suspending official to consider.



Sec. 180.745  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the Federal agency agree to waive it in 
advance. If you want a copy of the transcribed record, you may purchase 
it.



Sec. 180.750  What does the suspending official consider in deciding whether to continue or terminate my suspension?

    (a) The suspending official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the suspending official's initial 
decision to suspend you;
    (2) Any further information and argument presented in support of, or 
opposition to, the suspension; and
    (3) Any transcribed record of fact-finding proceedings.
    (b) The suspending official may refer disputed material facts to 
another official for findings of fact. The suspending official may 
reject any resulting findings, in whole or in part, only after 
specifically determining them to be arbitrary, capricious, or clearly 
erroneous.



Sec. 180.755  When will I know whether the suspension is continued or terminated?

    The suspending official must make a written decision whether to 
continue, modify, or terminate your suspension within 45 days of closing 
the official record. The official record closes upon the suspending 
official's receipt of final submissions, information and findings of 
fact, if any. The suspending official may extend that period for good 
cause.



Sec. 180.760  How long may my suspension last?

    (a) If legal or debarment proceedings are initiated at the time of, 
or during your suspension, the suspension may continue until the 
conclusion of those proceedings. However, if proceedings are not 
initiated, a suspension may not exceed 12 months.
    (b) The suspending official may extend the 12 month limit under 
paragraph (a) of this section for an additional 6 months if an office of 
a U.S. Assistant Attorney General, U.S. Attorney, or other responsible 
prosecuting official requests an extension in writing. In no event may a 
suspension exceed 18 months without initiating proceedings under 
paragraph (a) of this section.
    (c) The suspending official must notify the appropriate officials 
under paragraph (b) of this section of an impending termination of a 
suspension at least 30 days before the 12 month period expires to allow 
the officials an opportunity to request an extension.



                           Subpart H_Debarment



Sec. 180.800  What are the causes for debarment?

    A Federal agency may debar a person for--
    (a) Conviction of or civil judgment for--
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public or private 
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including 
those proscribing price fixing between competitors, allocation of 
customers between competitors, and bid rigging;

[[Page 60]]

    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, tax 
evasion, receiving stolen property, making false claims, or obstruction 
of justice; or
    (4) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects your 
present responsibility;
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as--
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction;
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, or a procurement debarment by any Federal agency taken 
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;
    (2) Knowingly doing business with an ineligible person, except as 
permitted under Sec. 180.135;
    (3) Failure to pay a single substantial debt, or a number of 
outstanding debts (including disallowed costs and overpayments, but not 
including sums owed the Federal Government under the Internal Revenue 
Code) owed to any Federal agency or instrumentality, provided the debt 
is uncontested by the debtor or, if contested, provided that the 
debtor's legal and administrative remedies have been exhausted;
    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec. 180.640 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of the provisions of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701); or
    (d) Any other cause of so serious or compelling a nature that it 
affects your present responsibility.



Sec. 180.805  What notice does the debarring official give me if I am proposed for debarment?

    After consideration of the causes in Sec. 180.800, if the debarring 
official proposes to debar you, the official sends you a Notice of 
Proposed Debarment, pursuant to Sec. 180.615, advising you--
    (a) That the debarring official is considering debarring you;
    (b) Of the reasons for proposing to debar you in terms sufficient to 
put you on notice of the conduct or transactions upon which the proposed 
debarment is based;
    (c) Of the cause(s) under Sec. 180.800 upon which the debarring 
official relied for proposing your debarment;
    (d) Of the applicable provisions of this subpart, subpart F of this 
part, and any other agency procedures governing debarment; and
    (e) Of the governmentwide effect of a debarment from procurement and 
nonprocurement programs and activities.



Sec. 180.810  When does a debarment take effect?

    Unlike suspension, a debarment is not effective until the debarring 
official issues a decision. The debarring official does not issue a 
decision until the respondent has had an opportunity to contest the 
proposed debarment.



Sec. 180.815  How may I contest a proposed debarment?

    If you as a respondent wish to contest a proposed debarment, you or 
your representative must provide the debarring official with information 
in opposition to the proposed debarment. You may do this orally or in 
writing, but any information provided orally that you consider important 
must also be submitted in writing for the official record.



Sec. 180.820  How much time do I have to contest a proposed debarment?

    (a) As a respondent you or your representative must either send, or 
make arrangements to appear and present, the information and argument to 
the debarring official within 30 days after you receive the Notice of 
Proposed Debarment.

[[Page 61]]

    (b) The Federal agency taking the action considers the Notice of 
Proposed Debarment to be received by you--
    (1) When delivered, if the agency mails the notice to the last known 
street address, or five days after the agency sends it if the letter is 
undeliverable;
    (2) When sent, if the agency sends the notice by facsimile or five 
days after the agency sends it if the facsimile is undeliverable; or
    (3) When delivered, if the agency sends the notice by e-mail or five 
days after the agency sends it if the e-mail is undeliverable.



Sec. 180.825  What information must I provide to the debarring official if I contest the proposed debarment?

    (a) In addition to any information and argument in opposition, as a 
respondent your submission to the debarring official must identify--
    (1) Specific facts that contradict the statements contained in the 
Notice of Proposed Debarment. Include any information about any of the 
factors listed in Sec. 180.860. A general denial is insufficient to 
raise a genuine dispute over facts material to the debarment;
    (2) All existing, proposed, or prior exclusions under regulations 
implementing Executive Order 12549 and all similar actions taken by 
Federal, State, or local agencies, including administrative agreements 
that affect only those agencies;
    (3) All criminal and civil proceedings not included in the Notice of 
Proposed Debarment that grew out of facts relevant to the cause(s) 
stated in the notice; and
    (4) All of your affiliates.
    (b) If you fail to disclose this information, or provide false 
information, the Federal agency taking the action may seek further 
criminal, civil or administrative action against you, as appropriate.



Sec. 180.830  Under what conditions do I get an additional opportunity to 

challenge the facts on which the proposed debarment is based?

    (a) You as a respondent will not have an additional opportunity to 
challenge the facts if the debarring official determines that--
    (1) Your debarment is based upon a conviction or civil judgment;
    (2) Your presentation in opposition contains only general denials to 
information contained in the Notice of Proposed Debarment; or
    (3) The issues raised in your presentation in opposition to the 
proposed debarment are not factual in nature, or are not material to the 
debarring official's decision whether to debar.
    (b) You will have an additional opportunity to challenge the facts 
if the debarring official determines that--
    (1) The conditions in paragraph (a) of this section do not exist; 
and
    (2) Your presentation in opposition raises a genuine dispute over 
facts material to the proposed debarment.
    (c) If you have an opportunity to challenge disputed material facts 
under this section, the debarring official or designee must conduct 
additional proceedings to resolve those facts.



Sec. 180.835  Are debarment proceedings formal?

    (a) Debarment proceedings are conducted in a fair and informal 
manner. The debarring official may use flexible procedures to allow you 
as a respondent to present matters in opposition. In so doing, the 
debarring official is not required to follow formal rules of evidence or 
procedure in creating an official record upon which the official will 
base the decision whether to debar.
    (b) You or your representative must submit any documentary evidence 
you want the debarring official to consider.



Sec. 180.840  How is fact-finding conducted?

    (a) If fact-finding is conducted--
    (1) You may present witnesses and other evidence, and confront any 
witness presented; and
    (2) The fact-finder must prepare written findings of fact for the 
record.
    (b) A transcribed record of fact-finding proceedings must be made, 
unless you as a respondent and the Federal agency agree to waive it in 
advance. If you want a copy of the transcribed record, you may purchase 
it.

[[Page 62]]



Sec. 180.845  What does the debarring official consider in deciding whether to debar me?

    (a) The debarring official may debar you for any of the causes in 
Sec. 180.800. However, the official need not debar you even if a cause 
for debarment exists. The official may consider the seriousness of your 
acts or omissions and the mitigating or aggravating factors set forth at 
Sec. 180.860.
    (b) The debarring official bases the decision on all information 
contained in the official record. The record includes--
    (1) All information in support of the debarring official's proposed 
debarment;
    (2) Any further information and argument presented in support of, or 
in opposition to, the proposed debarment; and
    (3) Any transcribed record of fact-finding proceedings.
    (c) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any resultant findings, in whole or in part, only after specifically 
determining them to be arbitrary, capricious, or clearly erroneous.



Sec. 180.850  What is the standard of proof in a debarment action?

    (a) In any debarment action, the Federal agency must establish the 
cause for debarment by a preponderance of the evidence.
    (b) If the proposed debarment is based upon a conviction or civil 
judgment, the standard of proof is met.



Sec. 180.855  Who has the burden of proof in a debarment action?

    (a) The Federal agency has the burden to prove that a cause for 
debarment exists.
    (b) Once a cause for debarment is established, you as a respondent 
have the burden of demonstrating to the satisfaction of the debarring 
official that you are presently responsible and that debarment is not 
necessary.



Sec. 180.860  What factors may influence the debarring official's decision?

    This section lists the mitigating and aggravating factors that the 
debarring official may consider in determining whether to debar you and 
the length of your debarment period. The debarring official may consider 
other factors if appropriate in light of the circumstances of a 
particular case. The existence or nonexistence of any factor, such as 
one of those set forth in this section, is not necessarily determinative 
of your present responsibility. In making a debarment decision, the 
debarring official may consider the following factors:
    (a) The actual or potential harm or impact that results or may 
result from the wrongdoing.
    (b) The frequency of incidents and/or duration of the wrongdoing.
    (c) Whether there is a pattern or prior history of wrongdoing. For 
example, if you have been found by another Federal agency or a State 
agency to have engaged in wrongdoing similar to that found in the 
debarment action, the existence of this fact may be used by the 
debarring official in determining that you have a pattern or prior 
history of wrongdoing.
    (d) Whether you are or have been excluded or disqualified by an 
agency of the Federal Government or have not been allowed to participate 
in State or local contracts or assistance agreements on a basis of 
conduct similar to one or more of the causes for debarment specified in 
this part.
    (e) Whether you have entered into an administrative agreement with a 
Federal agency or a State or local government that is not governmentwide 
but is based on conduct similar to one or more of the causes for 
debarment specified in this part.
    (f) Whether and to what extent you planned, initiated, or carried 
out the wrongdoing.
    (g) Whether you have accepted responsibility for the wrongdoing and 
recognize the seriousness of the misconduct that led to the cause for 
debarment.
    (h) Whether you have paid or agreed to pay all criminal, civil and 
administrative liabilities for the improper activity, including any 
investigative or administrative costs incurred by the government, and 
have made or agreed to make full restitution.

[[Page 63]]

    (i) Whether you have cooperated fully with the government agencies 
during the investigation and any court or administrative action. In 
determining the extent of cooperation, the debarring official may 
consider when the cooperation began and whether you disclosed all 
pertinent information known to you.
    (j) Whether the wrongdoing was pervasive within your organization.
    (k) The kind of positions held by the individuals involved in the 
wrongdoing.
    (l) Whether your organization took appropriate corrective action or 
remedial measures, such as establishing ethics training and implementing 
programs to prevent recurrence.
    (m) Whether your principals tolerated the offense.
    (n) Whether you brought the activity cited as a basis for the 
debarment to the attention of the appropriate government agency in a 
timely manner.
    (o) Whether you have fully investigated the circumstances 
surrounding the cause for debarment and, if so, made the result of the 
investigation available to the debarring official.
    (p) Whether you had effective standards of conduct and internal 
control systems in place at the time the questioned conduct occurred.
    (q) Whether you have taken appropriate disciplinary action against 
the individuals responsible for the activity which constitutes the cause 
for debarment.
    (r) Whether you have had adequate time to eliminate the 
circumstances within your organization that led to the cause for the 
debarment.
    (s) Other factors that are appropriate to the circumstances of a 
particular case.



Sec. 180.865  How long may my debarment last?

    (a) If the debarring official decides to debar you, your period of 
debarment will be based on the seriousness of the cause(s) upon which 
your debarment is based. Generally, debarment should not exceed three 
years. However, if circumstances warrant, the debarring official may 
impose a longer period of debarment.
    (b) In determining the period of debarment, the debarring official 
may consider the factors in Sec. 180.860. If a suspension has preceded 
your debarment, the debarring official must consider the time you were 
suspended.
    (c) If the debarment is for a violation of the provisions of the 
Drug-Free Workplace Act of 1988, your period of debarment may not exceed 
five years.



Sec. 180.870  When do I know if the debarring official debars me?

    (a) The debarring official must make a written decision whether to 
debar within 45 days of closing the official record. The official record 
closes upon the debarring official's receipt of final submissions, 
information and findings of fact, if any. The debarring official may 
extend that period for good cause.
    (b) The debarring official sends you written notice, pursuant to 
Sec. 180.615 that the official decided, either--
    (1) Not to debar you; or
    (2) To debar you. In this event, the notice:
    (i) Refers to the Notice of Proposed Debarment;
    (ii) Specifies the reasons for your debarment;
    (iii) States the period of your debarment, including the effective 
dates; and
    (iv) Advises you that your debarment is effective for covered 
transactions and contracts that are subject to the Federal Acquisition 
Regulation (48 CFR chapter 1), throughout the executive branch of the 
Federal Government unless an agency head or an authorized designee 
grants an exception.



Sec. 180.875  May I ask the debarring official to reconsider a decision to debar me?

    Yes, as a debarred person you may ask the debarring official to 
reconsider the debarment decision or to reduce the time period or scope 
of the debarment. However, you must put your request in writing and 
support it with documentation.



Sec. 180.880  What factors may influence the debarring official during reconsideration?

    The debarring official may reduce or terminate your debarment based 
on--
    (a) Newly discovered material evidence;

[[Page 64]]

    (b) A reversal of the conviction or civil judgment upon which your 
debarment was based;
    (c) A bona fide change in ownership or management;
    (d) Elimination of other causes for which the debarment was imposed; 
or
    (e) Other reasons the debarring official finds appropriate.



Sec. 180.885  May the debarring official extend a debarment?

    (a) Yes, the debarring official may extend a debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest.
    (b) However, the debarring official may not extend a debarment 
solely on the basis of the facts and circumstances upon which the 
initial debarment action was based.
    (c) If the debarring official decides that a debarment for an 
additional period is necessary, the debarring official must follow the 
applicable procedures in this subpart, and subpart F of this part, to 
extend the debarment.



                          Subpart I_Definitions



Sec. 180.900  Adequate evidence.

    Adequate evidence means information sufficient to support the 
reasonable belief that a particular act or omission has occurred.



Sec. 180.905  Affiliate.

    Persons are affiliates of each other if, directly or indirectly, 
either one controls or has the power to control the other or a third 
person controls or has the power to control both. The ways a Federal 
agency may determine control include, but are not limited to--
    (a) Interlocking management or ownership;
    (b) Identity of interests among family members;
    (c) Shared facilities and equipment;
    (d) Common use of employees; or
    (e) A business entity which has been organized following the 
exclusion of a person which has the same or similar management, 
ownership, or principal employees as the excluded person.



Sec. 180.910  Agent or representative.

    Agent or representative means any person who acts on behalf of, or 
who is authorized to commit a participant in a covered transaction.



Sec. 180.915  Civil judgment.

    Civil judgment means the disposition of a civil action by any court 
of competent jurisdiction, whether by verdict, decision, settlement, 
stipulation, other disposition which creates a civil liability for the 
complained of wrongful acts, or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-3812).



Sec. 180.920  Conviction.

Conviction means--
    (a) A judgment or any other determination of guilt of a criminal 
offense by any court of competent jurisdiction, whether entered upon a 
verdict or plea, including a plea of nolo contendere; or
    (b) Any other resolution that is the functional equivalent of a 
judgment, including probation before judgment and deferred prosecution. 
A disposition without the participation of the court is the functional 
equivalent of a judgment only if it includes an admission of guilt.



Sec. 180.925  Debarment.

    Debarment means an action taken by a debarring official under 
subpart H of this part to exclude a person from participating in covered 
transactions and transactions covered under the Federal Acquisition 
Regulation (48 CFR chapter 1). A person so excluded is debarred.



Sec. 180.930  Debarring official.

    Debarring official means an agency official who is authorized to 
impose debarment. A debarring official is either--
    (a) The agency head; or
    (b) An official designated by the agency head.



Sec. 180.935  Disqualified.

    Disqualified means that a person is prohibited from participating in 
specified Federal procurement or nonprocurement transactions as required 
under a statute, Executive order (other

[[Page 65]]

than Executive Orders 12549 and 12689) or other authority. Examples of 
disqualifications include persons prohibited under--
    (a) The Davis-Bacon Act (40 U.S.C. 276(a));
    (b) The equal employment opportunity acts and Executive orders; or
    (c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C. 
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).



Sec. 180.940  Excluded or exclusion.

    Excluded or exclusion means--
    (a) That a person or commodity is prohibited from being a 
participant in covered transactions, whether the person has been 
suspended; debarred; proposed for debarment under 48 CFR part 9, subpart 
9.4; voluntarily excluded; or
    (b) The act of excluding a person.



Sec. 180.945  Excluded Parties List System (EPLS).

    Excluded Parties List System (EPLS) means the list maintained and 
disseminated by the General Services Administration (GSA) containing the 
names and other information about persons who are ineligible.



Sec. 180.950  Federal agency.

    Federal agency means any United States executive department, 
military department, defense agency or any other agency of the executive 
branch. Other agencies of the Federal government are not considered 
``agencies'' for the purposes of this part unless they issue regulations 
adopting the governmentwide Debarment and Suspension system under 
Executive Orders 12549 and 12689.



Sec. 180.955  Indictment.

    Indictment means an indictment for a criminal offense. A 
presentment, information, or other filing by a competent authority 
charging a criminal offense shall be given the same effect as an 
indictment.



Sec. 180.960  Ineligible or ineligibility.

    Ineligible or ineligibility means that a person or commodity is 
prohibited from covered transactions because of an exclusion or 
disqualification.



Sec. 180.965  Legal proceedings.

    Legal proceedings means any criminal proceeding or any civil 
judicial proceeding, including a proceeding under the Program Fraud 
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal 
Government or a State or local government or quasi-governmental 
authority is a party. The term also includes appeals from those 
proceedings.



Sec. 180.970  Nonprocurement transaction.

    (a) Nonprocurement transaction means any transaction, regardless of 
type (except procurement contracts), including, but not limited to the 
following:
    (1) Grants.
    (2) Cooperative agreements.
    (3) Scholarships.
    (4) Fellowships.
    (5) Contracts of assistance.
    (6) Loans.
    (7) Loan guarantees.
    (8) Subsidies.
    (9) Insurances.
    (10) Payments for specified uses.
    (11) Donation agreements.
    (b) A nonprocurement transaction at any tier does not require the 
transfer of Federal funds.



Sec. 180.975  Notice.

    Notice means a written communication served in person, sent by 
certified mail or its equivalent, or sent electronically by e-mail or 
facsimile. (See Sec. 180. 615.)



Sec. 180.980  Participant.

    Participant means any person who submits a proposal for or who 
enters into a covered transaction, including an agent or representative 
of a participant.



Sec. 180.985  Person.

    Person means any individual, corporation, partnership, association, 
unit of government, or legal entity, however organized.



Sec. 180.990  Preponderance of the evidence.

    Preponderance of the evidence means proof by information that, 
compared with information opposing it, leads to the conclusion that the 
fact at issue is more probably true than not.

[[Page 66]]



Sec. 180.995  Principal.

    Principal means--
    (a) An officer, director, owner, partner, principal investigator, or 
other person within a participant with management or supervisory 
responsibilities related to a covered transaction; or
    (b) A consultant or other person, whether or not employed by the 
participant or paid with Federal funds, who--
    (1) Is in a position to handle Federal funds;
    (2) Is in a position to influence or control the use of those funds; 
or,
    (3) Occupies a technical or professional position capable of 
substantially influencing the development or outcome of an activity 
required to perform the covered transaction.



Sec. 180.1000  Respondent.

    Respondent means a person against whom an agency has initiated a 
debarment or suspension action.



Sec. 180.1005  State.

    (a) State means--
    (1) Any of the states of the United States;
    (2) The District of Columbia;
    (3) The Commonwealth of Puerto Rico;
    (4) Any territory or possession of the United States; or
    (5) Any agency or instrumentality of a state.
    (b) For purposes of this part, State does not include institutions 
of higher education, hospitals, or units of local government.



Sec. 180.1010  Suspending official.

    (a) Suspending official means an agency official who is authorized 
to impose suspension. The suspending official is either:
    (1) The agency head; or
    (2) An official designated by the agency head.



Sec. 180.1015  Suspension.

    Suspension is an action taken by a suspending official under subpart 
G of this part that immediately prohibits a person from participating in 
covered transactions and transactions covered under the Federal 
Acquisition Regulation (48 CFR chapter 1) for a temporary period, 
pending completion of an agency investigation and any judicial or 
administrative proceedings that may ensue. A person so excluded is 
suspended.



Sec. 180.1020  Voluntary exclusion or voluntarily excluded.

    (a) Voluntary exclusion means a person's agreement to be excluded 
under the terms of a settlement between the person and one or more 
agencies. Voluntary exclusion must have governmentwide effect.
    (b) Voluntarily excluded means the status of a person who has agreed 
to a voluntary exclusion.

[[Page 67]]



             Sec. Appendix to Part 180--Covered Transactions

[GRAPHIC] [TIFF OMITTED] TR31AU05.000

                           PART 181 [RESERVED]



PART 182_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE)--Table of Contents



Sec.
182.5 What does this part do?
182.10 How is this part organized?
182.15 To whom does the guidance apply?
182.20 What must a Federal agency do to implement the guidance?
182.25 What must a Federal agency address in its implementation of the 
          guidance?
182.30 Where does a Federal agency implement the guidance?
182.35 By when must a Federal agency implement the guidance?
182.40 How is the guidance maintained?

                     Subpart A_Purpose and Coverage

182.100 How is this part written?
182.105 Do terms in this part have special meanings?
182.110 What do subparts A through F of this part do?
182.115 Does this part apply to me?
182.120 Are any of my Federal assistance awards exempt from this part?
182.125 Does this part affect the Federal contracts that I receive?

[[Page 68]]

      Subpart B_Requirements for Recipients Other Than Individuals

182.200 What must I do to comply with this part?
182.205 What must I include in my drug-free workplace statement?
182.210 To whom must I distribute my drug-free workplace statement?
182.215 What must I include in my drug-free awareness program?
182.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
182.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
182.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

182.300 What must I do to comply with this part if I am an individual 
          recipient?

         Subpart D_Responsibilities of Agency Awarding Officials

182.400 What are my responsibilities as an agency awarding official?

           Subpart E_Violations of This Part and Consequences

182.500 How are violations of this part determined for recipients other 
          than individuals?
182.505 How are violations of this part determined for recipients who 
          are individuals?
182.510 What actions will the Federal Government take against a 
          recipient determined to have violated this part?
182.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

182.605 Award.
182.610 Controlled substance.
182.615 Conviction.
182.620 Cooperative agreement.
182.625 Criminal drug statute.
182.630 Debarment.
182.635 Drug-free workplace.
182.640 Employee.
182.645 Federal agency or agency.
182.650 Grant.
182.655 Individual.
182.660 Recipient.
182.665 State.
182.670 Suspension.

    Authority: 41 U.S.C. 701, et seq.

    Source: 74 FR 28150, June 15, 2009, unless otherwise noted.



Sec. 182.5  What does this part do?

    This part provides Office of Management and Budget (OMB) guidance 
for Federal agencies on the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701-707, as amended) that applies to grants. It also 
applies the provisions of the Act to cooperative agreements and other 
financial assistance awards, as a matter of Federal Government policy.



Sec. 182.10  How is this part organized?

    This part is organized in two segments.
    (a) Sections 182.5 through 182.40 contain general policy direction 
for Federal agencies' use of the uniform policies and procedures in 
subparts A through F of this part.
    (b) Subparts A through F of this part contain uniform governmentwide 
policies and procedures for Federal agency use to specify the--
    (1) Types of awards that are covered by drug-free workplace 
requirements;
    (2) Drug-free workplace requirements with which a recipient must 
comply;
    (3) Actions required of an agency awarding official; and
    (4) Consequences of a violation of drug-free workplace requirements.



Sec. 182.15  To whom does the guidance apply?

    This part provides OMB guidance only to Federal agencies. 
Publication of this guidance in the Code of Federal Regulations does not 
change its nature--it is guidance and not regulation. Federal agencies' 
implementation of the guidance governs the rights and responsibilities 
of other persons affected by the drug-free workplace requirements.



Sec. 182.20  What must a Federal agency do to implement the guidance?

    To comply with the requirement in Section 41 U.S.C. 705 for 
Governmentwide regulations, each Federal agency that awards grants or 
cooperative agreements or makes other financial assistance awards that 
are subject to the drug-free workplace requirements in subparts A 
through F of the guidance must issue a regulation consistent with those 
subparts.

[[Page 69]]



Sec. 182.25  What must a Federal agency address in its implementation of the guidance?

    Each Federal agency's implementing regulation:
    (a) Must establish drug-free workplace policies and procedures for 
that agency's awards that are consistent with the guidance in this part. 
When adopted by a Federal agency, the provisions of the guidance have 
regulatory effect for that agency's awards.
    (b) Must address some matters for which the guidance in this part 
gives the agency discretion. Specifically, the regulation must--
    (1) State whether the agency:
    (i) Has a central point to which a recipient may send the 
notification of a conviction that is required under Sec. 182.225(a) or 
Sec. 182.300(b); or
    (ii) Requires the recipient to send the notification to the awarding 
official for each agency award, or to his or her official designee.
    (2) Either:
    (i) State that the agency head is the official authorized to 
determine under Sec. 182.500 or Sec. 182.505 that a recipient has 
violated the drug-free workplace requirements; or
    (ii) Provide the title of the official designated to make that 
determination.
    (c) May also, at the agency's option, identify any specific types of 
financial assistance awards, in addition to grants and cooperative 
agreements, to which the Federal agency makes this guidance applicable.



Sec. 182.30  Where does a Federal agency implement the guidance?

    Each Federal agency that awards grants or cooperative agreements or 
makes other financial assistance awards that are subject to the drug-
free workplace guidance in this part must issue a regulation 
implementing the guidance within its chapter in subtitle B of this title 
of the Code of Federal Regulations.



Sec. 182.35  By when must a Federal agency implement the guidance?

    Federal agencies must submit proposed regulations to the OMB for 
review within nine months of the issuance of this part and issue final 
regulations within eighteen months of the guidance.



Sec. 182.40  How is the guidance maintained?

    The OMB publishes proposed changes to the guidance in the Federal 
Register for public comment, considers comments with the help of 
appropriate interagency working groups, and then issues any changes to 
the guidance in final form.



                     Subpart A_Purpose and Coverage



Sec. 182.100  How is this part written?

    (a) This part uses a ``plain language'' format to make it easier for 
the general public and business community to use and understand. The 
section headings and text, often in the form of questions and answers, 
must be read together.
    (b) Pronouns used within this part, such as ``I'' and ``you,'' 
change from subpart to subpart depending on the audience being 
addressed.



Sec. 182.105  Do terms in this part have special meanings?

    This part uses terms that have special meanings. Those terms are 
defined in subpart F of this part.



Sec. 182.110  What do subparts A through F of this part do?

    Subparts A through F of this part specify standard policies and 
procedures to carry out the Drug-Free Workplace Act of 1988 for 
financial assistance awards.



Sec. 182.115  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of a Federal assistance award (see definitions of 
award and recipient in Sec. Sec. 182.605 and 182.660, respectively); or
    (2) A Federal agency awarding official.
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
             If you are * * *                    See subparts * * *
------------------------------------------------------------------------
(1) a recipient who is not an individual.  A, B and E.
(2) a recipient who is an individual.....  A, C and E.

[[Page 70]]

 
(3) a Federal agency awarding official...  A, D and E.
------------------------------------------------------------------------



Sec. 182.120  Are any of my Federal assistance awards exempt from this part?

    This part does not apply to any award to which the agency head, or 
his or her designee, determines that the application of this part would 
be inconsistent with the international obligations of the United States 
or the laws or regulations of a foreign government.



Sec. 182.125  Does this part affect the Federal contracts that I receive?

    This part will affect future contract awards indirectly if you are 
debarred or suspended for a violation of the requirements of this part, 
as described in Sec. 182.510(c). However, this part does not apply 
directly to procurement contracts. The portion of the Drug-Free 
Workplace Act of 1988 that applies to Federal procurement contracts is 
carried out through the Federal Acquisition Regulation in chapter 1 of 
Title 48 of the Code of Federal Regulations (the drug-free workplace 
coverage currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 182.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec. 182.205 
through 182.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec. 182.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec. 182.230).



Sec. 182.205  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.



Sec. 182.210  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec. 
182.205 be given to each employee who will be engaged in the performance 
of any Federal award.



Sec. 182.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.



Sec. 182.220  By when must I publish my drug-free workplace statement and establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec. 182.205 and an ongoing awareness program 
as described in

[[Page 71]]

Sec. 182.215, you must publish the statement and establish the program 
by the time given in the following table:

------------------------------------------------------------------------
                If * * *                          Then you * * *
------------------------------------------------------------------------
(a) the performance period of the award  must have the policy statement
 is less than 30 days.                    and program in place as soon
                                          as possible, but before the
                                          date on which performance is
                                          expected to be completed.
(b) the performance period of the award  must have the policy statement
 is 30 days or more.                      and program in place within 30
                                          days after award.
(c) you believe there are extraordinary  may ask the agency awarding
 circumstances that will require more     official to give you more time
 than 30 days for you to publish the      to do so. The amount of
 policy statement and establish the       additional time, if any, to be
 awareness program.                       given is at the discretion of
                                          the awarding official.
------------------------------------------------------------------------



Sec. 182.225  What actions must I take concerning employees who are convicted of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec. 182.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec. 182.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each agency award. 
A failure to do so is a violation of your drug-free workplace 
requirements. You may identify the workplaces--
    (1) To the agency official that is making the award, either at the 
time of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by agency officials or their 
designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award takes place. Categorical descriptions may be used 
(e.g., all vehicles of a mass transit authority or State highway 
department while in operation, State employees in each local 
unemployment office, performers in concert halls or radio studios).
    (c) If you identified workplaces to the agency awarding official at 
the time of application or award, as described in paragraph (a)(1) of 
this section, and any workplace that you identified changes during the 
performance of the award, you must inform the agency awarding official.

[[Page 72]]



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 182.300  What must I do to comply with this part if I am an individual recipient?

    As a condition of receiving a Federal agency award, if you are an 
individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the Federal agency awarding official or other designee for 
each award that you currently have, unless the agency designates a 
central point for the receipt of the notices, either in the award 
document or its regulation implementing the guidance in this part. When 
notice is made to a central point, it must include the identification 
number(s) of each affected award.



         Subpart D_Responsibilities of Agency Awarding Officials



Sec. 182.400  What are my responsibilities as an agency awarding official?

    As a Federal agency awarding official, you must obtain each 
recipient's agreement, as a condition of the award, to comply with the 
requirements in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.



           Subpart E_Violations of This Part and Consequences



Sec. 182.500  How are violations of this part determined for recipients other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the agency head or his or her designee 
determines, in writing, that--
    (a) The recipient has violated the requirements of subpart B of this 
part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.



Sec. 182.505  How are violations of this part determined for recipients who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the agency head or his or her designee determines, in writing, 
that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec. 182.510  What actions will the Federal Government take against a recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec. 182.500 or Sec. 182.505, the agency may take one or 
more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under the agency's 
regulation implementing the OMB guidance on nonprocurement debarment and 
suspension (2 CFR part 180), for a period not to exceed five years.



Sec. 182.515  Are there any exceptions to those actions?

    The agency head may waive with respect to a particular award, in 
writing, a suspension of payments under an award, suspension or 
termination of an award, or suspension or debarment of a recipient if 
the agency head determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.

[[Page 73]]



                          Subpart F_Definitions



Sec. 182.605  Award.

    Award means an award of financial assistance by a Federal agency 
directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 
that implements OMB Circular A-102 (for availability of OMB circulars, 
see 5 CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).



Sec. 182.610  Controlled substance.

    Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15.



Sec. 182.615  Conviction.

    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes.



Sec. 182.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec. 182.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.



Sec. 182.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.



Sec. 182.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered nonprocurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and agency 
regulations implementing the OMB guidance on nonprocurement debarment 
and suspension (2 CFR part 180, which implements Executive Orders 12549 
and 12689).



Sec. 182.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec. 182.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on

[[Page 74]]

the payroll; or employees of subrecipients or subcontractors in covered 
workplaces).



Sec. 182.645  Federal agency or agency.

    Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency.



Sec. 182.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec. 182.655  Individual.

    Individual means a natural person.



Sec. 182.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec. 182.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.



Sec. 182.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may ensue. A recipient so 
prohibited is suspended, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 
agency regulations implementing the OMB guidance on nonprocurement 
debarment and suspension (2 CFR part 180, which implements Executive 
Orders 12549 and 12689). Suspension of a recipient is a distinct and 
separate action from suspension of an award or suspension of payments 
under an award.

                        PARTS 183	199 [RESERVED]

[[Page 75]]



   CHAPTER II--OFFICE OF MANAGEMENT AND BUDGET CIRCULARS AND GUIDANCE




  --------------------------------------------------------------------
Part                                                                Page
200-214

[Reserved]

215             Uniform administrative requirements for 
                    grants and agreements with institutions 
                    of higher education, hospitals, and 
                    other non-profit organizations (OMB 
                    Circular A-110).........................          77
216-219

[Reserved]

220             Cost principles for educational institutions 
                    (OMB Circular A-21).....................         106
221-224

[Reserved]

225             Cost principles for state, local, and Indian 
                    tribal governments (OMB Circular A-87)..         153
226-229

[Reserved]

230             Cost principles for non-profit organizations 
                    (OMB Circular A-122)....................         182
231-299

[Reserved]

[[Page 77]]




                        PARTS 200	214 [RESERVED]



PART 215_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND OTHER NON-PROFIT ORGANIZATIONS (OMB 
CIRCULAR A	110)--Table of Contents



Sec.
215.0 About this part.

                            Subpart A_General

215.1 Purpose.
215.2 Definitions.
215.3 Effect on other issuances.
215.4 Deviations.
215.5 Subawards.

                    Subpart B_Pre-Award Requirements

215.10 Purpose.
215.11 Pre-award policies.
215.12 Forms for applying for Federal assistance.
215.13 Debarment and suspension.
215.14 Special award conditions.
215.15 Metric system of measurement.
215.16 Resource Conservation and Recovery Act.
215.17 Certifications and representations.

                    Subpart C_Post-Award Requirements

                    Financial and Program Management

215.20 Purpose of financial and program management.
215.21 Standards for financial management systems.
215.22 Payment.
215.23 Cost sharing or matching.
215.24 Program income.
215.25 Revision of budget and program plans.
215.26 Non-Federal audits.
215.27 Allowable costs.
215.28 Period of availability of funds.
215.29 Conditional exemptions.

                           Property Standards

215.30 Purpose of property standards.
215.31 Insurance coverage.
215.32 Real property.
215.33 Federally-owned and exempt property.
215.34 Equipment.
215.35 Supplies and other expendable property.
215.36 Intangible property.
215.37 Property trust relationship.

                          Procurement Standards

215.40 Purpose of procurement standards.
215.41 Recipient responsibilities.
215.42 Codes of conduct.
215.43 Competition.
215.44 Procurement procedures.
215.45 Cost and price analysis.
215.46 Procurement records.
215.47 Contract administration.
215.48 Contract provisions.

                           Reports and Records

215.50 Purpose of reports and records.
215.51 Monitoring and reporting program performance.
215.52 Financial reporting.
215.53 Retention and access requirements for records.

                       Termination and Enforcement

215.60 Purpose of termination and enforcement.
215.61 Termination.
215.62 Enforcement.

                 Subpart D_After-the-Award Requirements

215.70 Purpose.
215.71 Closeout procedures.
215.72 Subsequent adjustments and continuing responsibilities.
215.73 Collection of amounts due.

Appendix A to Part 215--Contract Provisions

    Authority: 31 U.S.C. 503; 31 U.S.C. 1111; 41 U.S.C. 405; 
Reorganization Plan No. 2 of 1970; E.O. 11541, 35 FR 10737, 3 CFR, 1966-
1970, p. 939.

    Source: 69 FR 26281, May 11, 2004, unless otherwise noted.



Sec. 215.0  About this part.

    (a) Purpose. This part contains OMB guidance to Federal agencies on 
the administration of grants to and agreements with institutions of 
higher education, hospitals, and other non-profit organizations. The 
guidance sets forth standards for obtaining consistency and uniformity 
in the agencies' administration of those grants and agreements.
    (b) Applicability. (1) Except as provided herein, the standards set 
forth in this part are applicable to all Federal agencies. If any 
statute specifically

[[Page 78]]

prescribes policies or specific requirements that differ from the 
standards provided in this part, the provisions of the statute shall 
govern.
    (2) The provisions of subparts A through D of this part shall be 
applied by Federal agencies to recipients. Recipients shall apply the 
provisions of those subparts to subrecipients performing substantive 
work under grants and agreements that are passed through or awarded by 
the primary recipient, if such subrecipients are organizations described 
in paragraph (a) of this section.
    (3) This part does not apply to grants, contracts, or other 
agreements between the Federal Government and units of State or local 
governments covered by OMB Circular A-102, ``Grants and Cooperative 
Agreements with State and Local Governments'' \1\ and the Federal 
agencies' grants management common rule (see Sec. 215.5) which 
standardize the administrative requirements Federal agencies impose on 
State and local grantees. In addition, subawards and contracts to State 
or local governments are not covered by this part. However, this part 
applies to subawards made by State and local governments to 
organizations covered by this part.
---------------------------------------------------------------------------

    \1\ See 5 CFR 1310.9 for availability of OMB circulars.
---------------------------------------------------------------------------

    (4) Federal agencies may apply the provisions of subparts A through 
D of this part to commercial organizations, foreign governments, 
organizations under the jurisdiction of foreign governments, and 
international organizations.
    (c) OMB responsibilities. OMB is responsible for:
    (1) Issuing and maintaining the guidance in this part.
    (2) Interpreting the policy requirements in this part and providing 
assistance to ensure effective and efficient implementation.
    (3) Reviewing Federal agency regulations implementing the guidance 
in this part, as required by Executive Order 12866.
    (4) Granting any deviations to Federal agencies from the guidance in 
this part, as provided in Sec. 215.4. Exceptions will only be made in 
particular cases where adequate justification is presented.
    (5) Conducting broad oversight of government-wide compliance with 
the guidance in this part.
    (d) Federal agency responsibilities. The head of each Federal agency 
that awards and administers grants and agreements subject to the 
guidance in this part is responsible for:
    (1) Implementing the guidance in subparts A through D of this part 
by adopting the language in those subparts unless different provisions 
are required by Federal statute or are approved by OMB.
    (2) Ensuring that the agency's components and subcomponents comply 
with the agency's implementation of the guidance in subparts A through D 
of this part.
    (3) Requesting approval from OMB for deviations from the guidance in 
subparts A through D of this part in situations where the guidance 
requires that approval.
    (4) Performing other functions specified in this part.
    (e) Relationship to previous issuance. The guidance in this part 
previously was issued as OMB Circular A-110. Subparts A through D of 
this part contain the guidance that was in the attachment to the OMB 
circular. Appendix A to this part contains the guidance that was in the 
appendix to the attachment.
    (f) Information Contact. Further information concerning this part 
may be obtained by contacting the Office of Federal Financial 
Management, Office of Management and Budget, Washington, DC 20503, 
telephone (202) 395-3993.
    (g) Termination Review Date. This part will have a policy review 
three years from the date of issuance.



                            Subpart A_General



Sec. 215.1  Purpose.

    This part establishes uniform administrative requirements for 
Federal grants and agreements awarded to institutions of higher 
education, hospitals, and other non-profit organizations. Federal 
awarding agencies shall not impose additional or inconsistent 
requirements, except as provided in Sec. Sec. 215.4, and 215.14 or 
unless specifically

[[Page 79]]

required by Federal statute or executive order. Non-profit organizations 
that implement Federal programs for the States are also subject to State 
requirements.



Sec. 215.2  Definitions.

    (a) Accrued expenditures means the charges incurred by the recipient 
during a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subrecipients, and 
other payees; and,
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required.
    (b) Accrued income means the sum of:
    (1) Earnings during a given period from:
    (i) Services performed by the recipient, and
    (ii) Goods and other tangible property delivered to purchasers, and
    (2) Amounts becoming owed to the recipient for which no current 
services or performance is required by the recipient.
    (c) Acquisition cost of equipment means the net invoice price of the 
equipment, including the cost of modifications, attachments, 
accessories, or auxiliary apparatus necessary to make the property 
usable for the purpose for which it was acquired. Other charges, such as 
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit 
acquisition cost in accordance with the recipient's regular accounting 
practices.
    (d) Advance means a payment made by Treasury check or other 
appropriate payment mechanism to a recipient upon its request either 
before outlays are made by the recipient or through the use of 
predetermined payment schedules.
    (e) Award means financial assistance that provides support or 
stimulation to accomplish a public purpose. Awards include grants and 
other agreements in the form of money or property in lieu of money, by 
the Federal Government to an eligible recipient. The term does not 
include: technical assistance, which provides services instead of money; 
other assistance in the form of loans, loan guarantees, interest 
subsidies, or insurance; direct payments of any kind to individuals; 
and, contracts which are required to be entered into and administered 
under procurement laws and regulations.
    (f) Cash contributions means the recipient's cash outlay, including 
the outlay of money contributed to the recipient by third parties.
    (g) Closeout means the process by which a Federal awarding agency 
determines that all applicable administrative actions and all required 
work of the award have been completed by the recipient and Federal 
awarding agency.
    (h) Contract means a procurement contract under an award or 
subaward, and a procurement subcontract under a recipient's or 
subrecipient's contract.
    (i) Cost sharing or matching means that portion of project or 
program costs not borne by the Federal Government.
    (j) Date of completion means the date on which all work under an 
award is completed or the date on the award document, or any supplement 
or amendment thereto, on which Federal sponsorship ends.
    (k) Disallowed costs means those charges to an award that the 
Federal awarding agency determines to be unallowable, in accordance with 
the applicable Federal cost principles or other terms and conditions 
contained in the award.
    (l) Equipment means tangible nonexpendable personal property 
including exempt property charged directly to the award having a useful 
life of more than one year and an acquisition cost of $5,000 or more per 
unit. However, consistent with recipient policy, lower limits may be 
established.
    (m) Excess property means property under the control of any Federal 
awarding agency that, as determined by the head thereof, is no longer 
required for its needs or the discharge of its responsibilities.
    (n) Exempt property means tangible personal property acquired in 
whole or in part with Federal funds, where the Federal awarding agency 
has statutory authority to vest title in the recipient

[[Page 80]]

without further obligation to the Federal Government. An example of 
exempt property authority is contained in the Federal Grant and 
Cooperative Agreement Act (31 U.S.C. 6306), for property acquired under 
an award to conduct basic or applied research by a non-profit 
institution of higher education or non-profit organization whose 
principal purpose is conducting scientific research.
    (o) Federal awarding agency means the Federal agency that provides 
an award to the recipient.
    (p) Federal funds authorized means the total amount of Federal funds 
obligated by the Federal Government for use by the recipient. This 
amount may include any authorized carryover of unobligated funds from 
prior funding periods when permitted by agency regulations or agency 
implementing instructions.
    (q) Federal share of real property, equipment, or supplies means 
that percentage of the property's acquisition costs and any improvement 
expenditures paid with Federal funds.
    (r) Funding period means the period of time when Federal funding is 
available for obligation by the recipient.
    (s) Intangible property and debt instruments means, but is not 
limited to, trademarks, copyrights, patents and patent applications and 
such property as loans, notes and other debt instruments, lease 
agreements, stock and other instruments of property ownership, whether 
considered tangible or intangible.
    (t) Obligations means the amounts of orders placed, contracts and 
grants awarded, services received and similar transactions during a 
given period that require payment by the recipient during the same or a 
future period.
    (u) Outlays or expenditures means charges made to the project or 
program. They may be reported on a cash or accrual basis. For reports 
prepared on a cash basis, outlays are the sum of cash disbursements for 
direct charges for goods and services, the amount of indirect expense 
charged, the value of third party in-kind contributions applied and the 
amount of cash advances and payments made to subrecipients. For reports 
prepared on an accrual basis, outlays are the sum of cash disbursements 
for direct charges for goods and services, the amount of indirect 
expense incurred, the value of in-kind contributions applied, and the 
net increase (or decrease) in the amounts owed by the recipient for 
goods and other property received, for services performed by employees, 
contractors, subrecipients and other payees and other amounts becoming 
owed under programs for which no current services or performance are 
required.
    (v) Personal property means property of any kind except real 
property. It may be tangible, having physical existence, or intangible, 
having no physical existence, such as copyrights, patents, or 
securities.
    (w) Prior approval means written approval by an authorized official 
evidencing prior consent.
    (x) Program income means gross income earned by the recipient that 
is directly generated by a supported activity or earned as a result of 
the award (see exclusions in Sec. 215.24(e) and (h)). Program income 
includes, but is not limited to, income from fees for services 
performed, the use or rental of real or personal property acquired under 
federally-funded projects, the sale of commodities or items fabricated 
under an award, license fees and royalties on patents and copyrights, 
and interest on loans made with award funds. Interest earned on advances 
of Federal funds is not program income. Except as otherwise provided in 
Federal awarding agency regulations or the terms and conditions of the 
award, program income does not include the receipt of principal on 
loans, rebates, credits, discounts, etc., or interest earned on any of 
them.
    (y) Project costs means all allowable costs, as set forth in the 
applicable Federal cost principles, incurred by a recipient and the 
value of the contributions made by third parties in accomplishing the 
objectives of the award during the project period.
    (z) Project period means the period established in the award 
document during which Federal sponsorship begins and ends.
    (aa) Property means, unless otherwise stated, real property, 
equipment, intangible property and debt instruments.

[[Page 81]]

    (bb) Real property means land, including land improvements, 
structures and appurtenances thereto, but excludes movable machinery and 
equipment.
    (cc) Recipient means an organization receiving financial assistance 
directly from Federal awarding agencies to carry out a project or 
program. The term includes public and private institutions of higher 
education, public and private hospitals, and other quasi-public and 
private non-profit organizations such as, but not limited to, community 
action agencies, research institutes, educational associations, and 
health centers. The term may include commercial organizations, foreign 
or international organizations (such as agencies of the United Nations) 
which are recipients, subrecipients, or contractors or subcontractors of 
recipients or subrecipients at the discretion of the Federal awarding 
agency. The term does not include government-owned contractor-operated 
facilities or research centers providing continued support for mission-
oriented, large-scale programs that are government-owned or controlled, 
or are designated as federally-funded research and development centers.
    (dd) Research and development means all research activities, both 
basic and applied, and all development activities that are supported at 
universities, colleges, and other non-profit institutions. ``Research'' 
is defined as a systematic study directed toward fuller scientific 
knowledge or understanding of the subject studied. ``Development'' is 
the systematic use of knowledge and understanding gained from research 
directed toward the production of useful materials, devices, systems, or 
methods, including design and development of prototypes and processes. 
The term research also includes activities involving the training of 
individuals in research techniques where such activities utilize the 
same facilities as other research and development activities and where 
such activities are not included in the instruction function.
    (ee) Small awards means a grant or cooperative agreement not 
exceeding the small purchase threshold fixed at 41 U.S.C. 403(11) 
(currently $25,000).
    (ff) Subaward means an award of financial assistance in the form of 
money, or property in lieu of money, made under an award by a recipient 
to an eligible subrecipient or by a subrecipient to a lower tier 
subrecipient. The term includes financial assistance when provided by 
any legal agreement, even if the agreement is called a contract, but 
does not include procurement of goods and services nor does it include 
any form of assistance which is excluded from the definition of 
``award'' in Sec. 215.2(e).
    (gg) Subrecipient means the legal entity to which a subaward is made 
and which is accountable to the recipient for the use of the funds 
provided. The term may include foreign or international organizations 
(such as agencies of the United Nations) at the discretion of the 
Federal awarding agency.
    (hh) Supplies means all personal property excluding equipment, 
intangible property, and debt instruments as defined in this section, 
and inventions of a contractor conceived or first actually reduced to 
practice in the performance of work under a funding agreement (``subject 
inventions''), as defined in 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts, and Cooperative Agreements.''
    (ii) Suspension means an action by a Federal awarding agency that 
temporarily withdraws Federal sponsorship under an award, pending 
corrective action by the recipient or pending a decision to terminate 
the award by the Federal awarding agency. Suspension of an award is a 
separate action from suspension under Federal agency regulations 
implementing E.O. 12549 (51 FR 6370, 3 CFR, 1986 Comp., p. 189) and E.O. 
12689 (54 FR 34131, 3 CFR, 1989 Comp., p. 235), ``Debarment and 
Suspension.''
    (jj) Termination means the cancellation of Federal sponsorship, in 
whole or in part, under an agreement at any time prior to the date of 
completion.
    (kk) Third party in-kind contributions means the value of non-cash 
contributions provided by non-Federal third parties. Third party in-kind 
contributions may be in the form of real property, equipment, supplies 
and other expendable property, and the value of goods and services 
directly benefiting

[[Page 82]]

and specifically identifiable to the project or program.
    (ll) Unliquidated obligations, for financial reports prepared on a 
cash basis, means the amount of obligations incurred by the recipient 
that have not been paid. For reports prepared on an accrued expenditure 
basis, they represent the amount of obligations incurred by the 
recipient for which an outlay has not been recorded.
    (mm) Unobligated balance means the portion of the funds authorized 
by the Federal awarding agency that has not been obligated by the 
recipient and is determined by deducting the cumulative obligations from 
the cumulative funds authorized.
    (nn) Unrecovered indirect cost means the difference between the 
amount awarded and the amount which could have been awarded under the 
recipient's approved negotiated indirect cost rate.
    (oo) Working capital advance means a procedure whereby funds are 
advanced to the recipient to cover its estimated disbursement needs for 
a given initial period.



Sec. 215.3  Effect on other issuances.

    For awards subject to this part, all administrative requirements of 
codified program regulations, program manuals, handbooks and other 
nonregulatory materials which are inconsistent with the requirements of 
this part shall be superseded, except to the extent they are required by 
statute, or authorized in accordance with the deviations provision in 
Sec. 215.4.



Sec. 215.4  Deviations.

    The Office of Management and Budget (OMB) may grant exceptions for 
classes of grants or recipients subject to the requirements of this part 
when exceptions are not prohibited by statute. However, in the interest 
of maximum uniformity, exceptions from the requirements of this part 
shall be permitted only in unusual circumstances. Federal awarding 
agencies may apply more restrictive requirements to a class of 
recipients when approved by OMB. Federal awarding agencies may apply 
less restrictive requirements when awarding small awards, except for 
those requirements which are statutory. Exceptions on a case-by-case 
basis may also be made by Federal awarding agencies.



Sec. 215.5  Subawards.

    Unless sections of this part specifically exclude subrecipients from 
coverage, the provisions of this part shall be applied to subrecipients 
performing work under awards if such subrecipients are institutions of 
higher education, hospitals or other non-profit organizations. State and 
local government subrecipients are subject to the provisions of 
regulations implementing the grants management common rule, ``Uniform 
Administrative Requirements for Grants and Cooperative Agreements to 
State and Local Governments,'' published at 7 CFR parts 3015 and 3016, 
10 CFR part 600, 13 CFR part 143, 15 CFR part 24, 20 CFR part 437, 22 
CFR part 135, 24 CFR parts 44, 85, 111, 511, 570, 571, 575, 590, 850, 
882, 905, 941, 968, 970, and 990, 28 CFR part 66, 29 CFR parts 97 and 
1470, 32 CFR part 278, 34 CFR parts 74 and 80, 36 CFR part 1207, 38 CFR 
part 43, 40 CFR parts 30, 31, and 33, 43 CFR part 12, 44 CFR part 13, 45 
CFR parts 74, 92, 602, 1157, 1174, 1183, 1234, and 2015, and 49 CFR part 
18.

[69 FR 26281, May 11, 2004, as amended at 70 FR 51880, Aug. 31, 2005]



                    Subpart B_Pre-Award Requirements



Sec. 215.10  Purpose.

    Sections 215.11 through 215.17 prescribe forms and instructions and 
other pre-award matters to be used in applying for Federal awards.



Sec. 215.11  Pre-award policies.

    (a) Use of Grants and Cooperative Agreements, and Contracts. In each 
instance, the Federal awarding agency shall decide on the appropriate 
award instrument (i.e., grant, cooperative agreement, or contract). The 
Federal Grant and Cooperative Agreement Act (31 U.S.C. 6301-08) governs 
the use of grants, cooperative agreements and contracts. A grant or 
cooperative agreement shall be used only when the principal purpose of a 
transaction is to accomplish a public purpose of support or stimulation 
authorized by Federal

[[Page 83]]

statute. The statutory criterion for choosing between grants and 
cooperative agreements is that for the latter, ``substantial involvement 
is expected between the executive agency and the State, local 
government, or other recipient when carrying out the activity 
contemplated in the agreement.'' Contracts shall be used when the 
principal purpose is acquisition of property or services for the direct 
benefit or use of the Federal Government.
    (b) Public Notice and Priority Setting. Federal awarding agencies 
shall notify the public of its intended funding priorities for 
discretionary grant programs, unless funding priorities are established 
by Federal statute.



Sec. 215.12  Forms for applying for Federal assistance.

    (a) Federal awarding agencies shall comply with the applicable 
report clearance requirements of 5 CFR part 1320, ``Controlling 
Paperwork Burdens on the Public,'' with regard to all forms used by the 
Federal awarding agency in place of or as a supplement to the Standard 
Form 424 (SF-424) series.
    (b) Applicants shall use the SF-424 series or those forms and 
instructions prescribed by the Federal awarding agency.
    (c) For Federal programs covered by E.O. 12372, ``Intergovernmental 
Review of Federal Programs,'' (47 FR 30959, 3 CFR, 1982 Comp., p. 197) 
the applicant shall complete the appropriate sections of the SF-424 
(Application for Federal Assistance) indicating whether the application 
was subject to review by the State Single Point of Contact (SPOC). The 
name and address of the SPOC for a particular State can be obtained from 
the Federal awarding agency or the Catalog of Federal Domestic 
Assistance. The SPOC shall advise the applicant whether the program for 
which application is made has been selected by that State for review.
    (d) Federal awarding agencies that do not use the SF-424 form should 
indicate whether the application is subject to review by the State under 
E.O. 12372.



Sec. 215.13  Debarment and suspension.

    Federal awarding agencies and recipients shall comply with Federal 
agency regulations implementing E.O.s 12549 and 12689, ``Debarment and 
Suspension.'' Under those regulations, certain parties who are debarred, 
suspended or otherwise excluded may not be participants or principals in 
Federal assistance awards and subawards, and in certain contracts under 
those awards and subawards.

[70 FR 51879, Aug. 31, 2005]



Sec. 215.14  Special award conditions.

    If an applicant or recipient: has a history of poor performance, is 
not financially stable, has a management system that does not meet the 
standards prescribed in this part, has not conformed to the terms and 
conditions of a previous award, or is not otherwise responsible, Federal 
awarding agencies may impose additional requirements as needed, provided 
that such applicant or recipient is notified in writing as to: the 
nature of the additional requirements, the reason why the additional 
requirements are being imposed, the nature of the corrective action 
needed, the time allowed for completing the corrective actions, and the 
method for requesting reconsideration of the additional requirements 
imposed. Any special conditions shall be promptly removed once the 
conditions that prompted them have been corrected.



Sec. 215.15  Metric system of measurement.

    The Metric Conversion Act, as amended by the Omnibus Trade and 
Competitiveness Act (15 U.S.C. 205) declares that the metric system is 
the preferred measurement system for U.S. trade and commerce. The Act 
requires each Federal agency to establish a date or dates in 
consultation with the Secretary of Commerce, when the metric system of 
measurement will be used in the agency's procurements, grants, and other 
business-related activities. Metric implementation may take longer where 
the use of the system is initially impractical or likely to cause 
significant inefficiencies in the accomplishment of federally-funded 
activities. Federal awarding agencies shall follow the provisions of 
E.O. 12770, ``Metric Usage in Federal Government Programs'' (56 FR 
35801, 3 CFR, 1991 Comp., p. 343).

[[Page 84]]



Sec. 215.16  Resource Conservation and Recovery Act.

    Under the Act, any State agency or agency of a political subdivision 
of a State which is using appropriated Federal funds must comply with 
section 6002. Section 6002 requires that preference be given in 
procurement programs to the purchase of specific products containing 
recycled materials identified in guidelines developed by the 
Environmental Protection Agency (EPA) (40 CFR parts 247-254). 
Accordingly, State and local institutions of higher education, 
hospitals, and non-profit organizations that receive direct Federal 
awards or other Federal funds shall give preference in their procurement 
programs funded with Federal funds to the purchase of recycled products 
pursuant to the EPA guidelines.



Sec. 215.17  Certifications and representations.

    Unless prohibited by statute or codified regulation, each Federal 
awarding agency is authorized and encouraged to allow recipients to 
submit certifications and representations required by statute, executive 
order, or regulation on an annual basis, if the recipients have ongoing 
and continuing relationships with the agency. Annual certifications and 
representations shall be signed by responsible officials with the 
authority to ensure recipients' compliance with the pertinent 
requirements.



                    Subpart C_Post Award Requirements

                    Financial and Program Management



Sec. 215.20  Purpose of financial and program management.

    Sections 215.21 through 215.28 prescribe standards for financial 
management systems, methods for making payments and rules for: 
satisfying cost sharing and matching requirements, accounting for 
program income, budget revision approvals, making audits, determining 
allowability of cost, and establishing fund availability.



Sec. 215.21  Standards for financial management systems.

    (a) Federal awarding agencies shall require recipients to relate 
financial data to performance data and develop unit cost information 
whenever practical.
    (b) Recipients' financial management systems shall provide for the 
following.
    (1) Accurate, current and complete disclosure of the financial 
results of each federally-sponsored project or program in accordance 
with the reporting requirements set forth in Sec. 215.52. If a Federal 
awarding agency requires reporting on an accrual basis from a recipient 
that maintains its records on other than an accrual basis, the recipient 
shall not be required to establish an accrual accounting system. These 
recipients may develop such accrual data for its reports on the basis of 
an analysis of the documentation on hand.
    (2) Records that identify adequately the source and application of 
funds for federally-sponsored activities. These records shall contain 
information pertaining to Federal awards, authorizations, obligations, 
unobligated balances, assets, outlays, income and interest.
    (3) Effective control over and accountability for all funds, 
property and other assets. Recipients shall adequately safeguard all 
such assets and assure they are used solely for authorized purposes.
    (4) Comparison of outlays with budget amounts for each award. 
Whenever appropriate, financial information should be related to 
performance and unit cost data.
    (5) Written procedures to minimize the time elapsing between the 
transfer of funds to the recipient from the U.S. Treasury and the 
issuance or redemption of checks, warrants or payments by other means 
for program purposes by the recipient. To the extent that the provisions 
of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern, 
payment methods of State agencies, instrumentalities, and fiscal agents 
shall be consistent with CMIA Treasury-State Agreements or the CMIA 
default procedures codified at 31 CFR part 205, ``Withdrawal of Cash 
from the Treasury for Advances under Federal Grant and Other Programs.''
    (6) Written procedures for determining the reasonableness, 
allocability and allowability of costs in accordance with the provisions 
of the applicable

[[Page 85]]

Federal cost principles and the terms and conditions of the award.
    (7) Accounting records including cost accounting records that are 
supported by source documentation.
    (c) Where the Federal Government guarantees or insures the repayment 
of money borrowed by the recipient, the Federal awarding agency, at its 
discretion, may require adequate bonding and insurance if the bonding 
and insurance requirements of the recipient are not deemed adequate to 
protect the interest of the Federal Government.
    (d) The Federal awarding agency may require adequate fidelity bond 
coverage where the recipient lacks sufficient coverage to protect the 
Federal Government's interest.
    (e) Where bonds are required in the situations described above, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties, as prescribed in 31 CFR part 223, ``Surety 
Companies Doing Business with the United States.''



Sec. 215.22  Payment.

    (a) Payment methods shall minimize the time elapsing between the 
transfer of funds from the United States Treasury and the issuance or 
redemption of checks, warrants, or payment by other means by the 
recipients. Payment methods of State agencies or instrumentalities shall 
be consistent with Treasury-State CMIA agreements or default procedures 
codified at 31 CFR part 205.
    (b) Recipients are to be paid in advance, provided they maintain or 
demonstrate the willingness to maintain:
    (1) Written procedures that minimize the time elapsing between the 
transfer of funds and disbursement by the recipient, and
    (2) Financial management systems that meet the standards for fund 
control and accountability as established in Sec. 215.21. Cash advances 
to a recipient organization shall be limited to the minimum amounts 
needed and be timed to be in accordance with the actual, immediate cash 
requirements of the recipient organization in carrying out the purpose 
of the approved program or project. The timing and amount of cash 
advances shall be as close as is administratively feasible to the actual 
disbursements by the recipient organization for direct program or 
project costs and the proportionate share of any allowable indirect 
costs.
    (c) Whenever possible, advances shall be consolidated to cover 
anticipated cash needs for all awards made by the Federal awarding 
agency to the recipient.
    (1) Advance payment mechanisms include, but are not limited to, 
Treasury check and electronic funds transfer.
    (2) Advance payment mechanisms are subject to 31 CFR part 205.
    (3) Recipients shall be authorized to submit requests for advances 
and reimbursements at least monthly when electronic fund transfers are 
not used.
    (d) Requests for Treasury check advance payment shall be submitted 
on SF-270, ``Request for Advance or Reimbursement,'' or other forms as 
may be authorized by OMB. This form is not to be used when Treasury 
check advance payments are made to the recipient automatically through 
the use of a predetermined payment schedule or if precluded by special 
Federal awarding agency instructions for electronic funds transfer.
    (e) Reimbursement is the preferred method when the requirements in 
Sec. 215.12(b) cannot be met. Federal awarding agencies may also use 
this method on any construction agreement, or if the major portion of 
the construction project is accomplished through private market 
financing or Federal loans, and the Federal assistance constitutes a 
minor portion of the project.
    (1) When the reimbursement method is used, the Federal awarding 
agency shall make payment within 30 days after receipt of the billing, 
unless the billing is improper.
    (2) Recipients shall be authorized to submit request for 
reimbursement at least monthly when electronic funds transfers are not 
used.
    (f) If a recipient cannot meet the criteria for advance payments and 
the Federal awarding agency has determined that reimbursement is not 
feasible because the recipient lacks sufficient working capital, the 
Federal awarding agency may provide cash on a working capital advance 
basis. Under this procedure, the Federal awarding

[[Page 86]]

agency shall advance cash to the recipient to cover its estimated 
disbursement needs for an initial period generally geared to the 
awardee's disbursing cycle. Thereafter, the Federal awarding agency 
shall reimburse the recipient for its actual cash disbursements. The 
working capital advance method of payment shall not be used for 
recipients unwilling or unable to provide timely advances to their 
subrecipient to meet the subrecipient's actual cash disbursements.
    (g) To the extent available, recipients shall disburse funds 
available from repayments to and interest earned on a revolving fund, 
program income, rebates, refunds, contract settlements, audit recoveries 
and interest earned on such funds before requesting additional cash 
payments.
    (h) Unless otherwise required by statute, Federal awarding agencies 
shall not withhold payments for proper charges made by recipients at any 
time during the project period unless paragraphs (h)(1) or (2) of this 
section apply.
    (1) A recipient has failed to comply with the project objectives, 
the terms and conditions of the award, or Federal reporting 
requirements.
    (2) The recipient or subrecipient is delinquent in a debt to the 
United States as defined in OMB Circular A-129, ``Managing Federal 
Credit Programs.'' Under such conditions, the Federal awarding agency 
may, upon reasonable notice, inform the recipient that payments shall 
not be made for obligations incurred after a specified date until the 
conditions are corrected or the indebtedness to the Federal Government 
is liquidated.
    (i) Standards governing the use of banks and other institutions as 
depositories of funds advanced under awards are as follows.
    (1) Except for situations described in paragraph (i)(2) of this 
section, Federal awarding agencies shall not require separate depository 
accounts for funds provided to a recipient or establish any eligibility 
requirements for depositories for funds provided to a recipient. 
However, recipients must be able to account for the receipt, obligation 
and expenditure of funds.
    (2) Advances of Federal funds shall be deposited and maintained in 
insured accounts whenever possible.
    (j) Consistent with the national goal of expanding the opportunities 
for women-owned and minority-owned business enterprises, recipients 
shall be encouraged to use women-owned and minority-owned banks (a bank 
which is owned at least 50 percent by women or minority group members).
    (k) Recipients shall maintain advances of Federal funds in interest 
bearing accounts, unless paragraphs (k)(1), (2) or (3) of this section 
apply.
    (1) The recipient receives less than $120,000 in Federal awards per 
year.
    (2) The best reasonably available interest bearing account would not 
be expected to earn interest in excess of $250 per year on Federal cash 
balances.
    (3) The depository would require an average or minimum balance so 
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
    (l) For those entities where CMIA and its implementing regulations 
at 31 CFR part 205 do not apply, interest earned on Federal advances 
deposited in interest bearing accounts shall be remitted annually to 
Department of Health and Human Services, Payment Management System, 
Rockville, MD 20852. Interest amounts up to $250 per year may be 
retained by the recipient for administrative expense. State universities 
and hospitals shall comply with CMIA, as it pertains to interest. If an 
entity subject to CMIA uses its own funds to pay pre-award costs for 
discretionary awards without prior written approval from the Federal 
awarding agency, it waives its right to recover the interest under CMIA.
    (m) Except as noted elsewhere in this part, only the following forms 
shall be authorized for the recipients in requesting advances and 
reimbursements. Federal agencies shall not require more than an original 
and two copies of these forms.
    (1) SF-270, Request for Advance or Reimbursement. Each Federal 
awarding agency shall adopt the SF-270 as a standard form for all 
nonconstruction programs when electronic funds transfer or predetermined 
advance methods

[[Page 87]]

are not used. Federal awarding agencies, however, have the option of 
using this form for construction programs in lieu of the SF-271, 
``Outlay Report and Request for Reimbursement for Construction 
Programs.''
    (2) SF-271, Outlay Report and Request for Reimbursement for 
Construction Programs. Each Federal awarding agency shall adopt the SF-
271 as the standard form to be used for requesting reimbursement for 
construction programs. However, a Federal awarding agency may substitute 
the SF-270 when the Federal awarding agency determines that it provides 
adequate information to meet Federal needs.



Sec. 215.23  Cost sharing or matching.

    (a) All contributions, including cash and third party in-kind, shall 
be accepted as part of the recipient's cost sharing or matching when 
such contributions meet all of the following criteria.
    (1) Are verifiable from the recipient's records.
    (2) Are not included as contributions for any other federally-
assisted project or program.
    (3) Are necessary and reasonable for proper and efficient 
accomplishment of project or program objectives.
    (4) Are allowable under the applicable cost principles.
    (5) Are not paid by the Federal Government under another award, 
except where authorized by Federal statute to be used for cost sharing 
or matching.
    (6) Are provided for in the approved budget when required by the 
Federal awarding agency.
    (7) Conform to other provisions of this part, as applicable.
    (b) Unrecovered indirect costs may be included as part of cost 
sharing or matching only with the prior approval of the Federal awarding 
agency.
    (c) Values for recipient contributions of services and property 
shall be established in accordance with the applicable cost principles. 
If a Federal awarding agency authorizes recipients to donate buildings 
or land for construction/facilities acquisition projects or long-term 
use, the value of the donated property for cost sharing or matching 
shall be the lesser of paragraphs (c)(1) or (2) of this section.
    (1) The certified value of the remaining life of the property 
recorded in the recipient's accounting records at the time of donation.
    (2) The current fair market value. However, when there is sufficient 
justification, the Federal awarding agency may approve the use of the 
current fair market value of the donated property, even if it exceeds 
the certified value at the time of donation to the project.
    (d) Volunteer services furnished by professional and technical 
personnel, consultants, and other skilled and unskilled labor may be 
counted as cost sharing or matching if the service is an integral and 
necessary part of an approved project or program. Rates for volunteer 
services shall be consistent with those paid for similar work in the 
recipient's organization. In those instances in which the required 
skills are not found in the recipient organization, rates shall be 
consistent with those paid for similar work in the labor market in which 
the recipient competes for the kind of services involved. In either 
case, paid fringe benefits that are reasonable, allowable, and allocable 
may be included in the valuation.
    (e) When an employer other than the recipient furnishes the services 
of an employee, these services shall be valued at the employee's regular 
rate of pay (plus an amount of fringe benefits that are reasonable, 
allowable, and allocable, but exclusive of overhead costs), provided 
these services are in the same skill for which the employee is normally 
paid.
    (f) Donated supplies may include such items as expendable equipment, 
office supplies, laboratory supplies or workshop and classroom supplies. 
Value assessed to donated supplies included in the cost sharing or 
matching share shall be reasonable and shall not exceed the fair market 
value of the property at the time of the donation.
    (g) The method used for determining cost sharing or matching for 
donated equipment, buildings and land for which title passes to the 
recipient may differ according to the purpose of the award, if 
paragraphs (g)(1) or (2) of this section apply.
    (1) If the purpose of the award is to assist the recipient in the 
acquisition

[[Page 88]]

of equipment, buildings or land, the total value of the donated property 
may be claimed as cost sharing or matching.
    (2) If the purpose of the award is to support activities that 
require the use of equipment, buildings or land, normally only 
depreciation or use charges for equipment and buildings may be made. 
However, the full value of equipment or other capital assets and fair 
rental charges for land may be allowed, provided that the Federal 
awarding agency has approved the charges.
    (h) The value of donated property shall be determined in accordance 
with the usual accounting policies of the recipient, with the following 
qualifications.
    (1) The value of donated land and buildings shall not exceed its 
fair market value at the time of donation to the recipient as 
established by an independent appraiser (e.g., certified real property 
appraiser or General Services Administration representative) and 
certified by a responsible official of the recipient.
    (2) The value of donated equipment shall not exceed the fair market 
value of equipment of the same age and condition at the time of 
donation.
    (3) The value of donated space shall not exceed the fair rental 
value of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately-owned building in the 
same locality.
    (4) The value of loaned equipment shall not exceed its fair rental 
value.
    (5) The following requirements pertain to the recipient's supporting 
records for in-kind contributions from third parties.
    (i) Volunteer services shall be documented and, to the extent 
feasible, supported by the same methods used by the recipient for its 
own employees.
    (ii) The basis for determining the valuation for personal service, 
material, equipment, buildings and land shall be documented.



Sec. 215.24  Program income.

    (a) Federal awarding agencies shall apply the standards set forth in 
this section in requiring recipient organizations to account for program 
income related to projects financed in whole or in part with Federal 
funds.
    (b) Except as provided in paragraph (h) of this section, program 
income earned during the project period shall be retained by the 
recipient and, in accordance with Federal awarding agency regulations or 
the terms and conditions of the award, shall be used in one or more of 
the ways listed in the following.
    (1) Added to funds committed to the project by the Federal awarding 
agency and recipient and used to further eligible project or program 
objectives.
    (2) Used to finance the non-Federal share of the project or program.
    (3) Deducted from the total project or program allowable cost in 
determining the net allowable costs on which the Federal share of costs 
is based.
    (c) When an agency authorizes the disposition of program income as 
described in paragraphs (b)(1) or (b)(2) of this section, program income 
in excess of any limits stipulated shall be used in accordance with 
paragraph (b)(3) of this section.
    (d) In the event that the Federal awarding agency does not specify 
in its regulations or the terms and conditions of the award how program 
income is to be used, paragraph (b)(3) of this section shall apply 
automatically to all projects or programs except research. For awards 
that support research, paragraph (b)(1) of this section shall apply 
automatically unless the awarding agency indicates in the terms and 
conditions another alternative on the award or the recipient is subject 
to special award conditions, as indicated in Sec. 215.14.
    (e) Unless Federal awarding agency regulations or the terms and 
conditions of the award provide otherwise, recipients shall have no 
obligation to the Federal Government regarding program income earned 
after the end of the project period.
    (f) If authorized by Federal awarding agency regulations or the 
terms and conditions of the award, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income, provided these costs have not been charged to the award.

[[Page 89]]

    (g) Proceeds from the sale of property shall be handled in 
accordance with the requirements of the Property Standards (see Sec. 
215.30 through Sec. 215.37).
    (h) Unless Federal awarding agency regulations or the terms and 
condition of the award provide otherwise, recipients shall have no 
obligation to the Federal Government with respect to program income 
earned from license fees and royalties for copyrighted material, 
patents, patent applications, trademarks, and inventions produced under 
an award. However, Patent and Trademark Amendments (35 U.S.C. 18) apply 
to inventions made under an experimental, developmental, or research 
award.



Sec. 215.25  Revision of budget and program plans.

    (a) The budget plan is the financial expression of the project or 
program as approved during the award process. It may include either the 
Federal and non-Federal share, or only the Federal share, depending upon 
Federal awarding agency requirements. It shall be related to performance 
for program evaluation purposes whenever appropriate.
    (b) Recipients are required to report deviations from budget and 
program plans, and request prior approvals for budget and program plan 
revisions, in accordance with this section.
    (c) For nonconstruction awards, recipients shall request prior 
approvals from Federal awarding agencies for one or more of the 
following program or budget related reasons.
    (1) Change in the scope or the objective of the project or program 
(even if there is no associated budget revision requiring prior written 
approval).
    (2) Change in a key person specified in the application or award 
document.
    (3) The absence for more than three months, or a 25 percent 
reduction in time devoted to the project, by the approved project 
director or principal investigator.
    (4) The need for additional Federal funding.
    (5) The transfer of amounts budgeted for indirect costs to absorb 
increases in direct costs, or vice versa, if approval is required by the 
Federal awarding agency.
    (6) The inclusion, unless waived by the Federal awarding agency, of 
costs that require prior approval in accordance with any of the 
following, as applicable:
    (i) 2 CFR part 220, ``Cost Principles for Educational Institutions 
(OMB Circular A-21);''
    (ii) 2 CFR part 230, ``Cost Principles for Non-Profit Organizations 
(OMB Circular A-122);''
    (iii) 45 CFR part 74, Appendix E, ``Principles for Determining Costs 
Applicable to Research and Development under Grants and Contracts with 
Hospitals;'' and
    (iv) 48 CFR part 31, ``Contract Cost Principles and Procedures.''
    (7) The transfer of funds allotted for training allowances (direct 
payment to trainees) to other categories of expense.
    (8) Unless described in the application and funded in the approved 
awards, the subaward, transfer or contracting out of any work under an 
award. This provision does not apply to the purchase of supplies, 
material, equipment or general support services.
    (d) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved by OMB.
    (e) Except for requirements listed in paragraphs (c)(1) and (c)(4) 
of this section, Federal awarding agencies are authorized, at their 
option, to waive cost-related and administrative prior written approvals 
required by 2 CFR parts 220 and 230 (OMB Circulars A-21 and A-122). Such 
waivers may include authorizing recipients to do any one or more of the 
following.
    (1) Incur pre-award costs 90 calendar days prior to award or more 
than 90 calendar days with the prior approval of the Federal awarding 
agency. All pre-award costs are incurred at the recipient's risk (i.e., 
the Federal awarding agency is under no obligation to reimburse such 
costs if for any reason the recipient does not receive an award or if 
the award is less than anticipated and inadequate to cover such costs).
    (2) Initiate a one-time extension of the expiration date of the 
award of up to 12 months unless one or more of the following conditions 
apply. For one-

[[Page 90]]

time extensions, the recipient must notify the Federal awarding agency 
in writing with the supporting reasons and revised expiration date at 
least 10 days before the expiration date specified in the award. This 
one-time extension may not be exercised merely for the purpose of using 
unobligated balances.
    (i) The terms and conditions of award prohibit the extension.
    (ii) The extension requires additional Federal funds.
    (iii) The extension involves any change in the approved objectives 
or scope of the project.
    (3) Carry forward unobligated balances to subsequent funding 
periods.
    (4) For awards that support research, unless the Federal awarding 
agency provides otherwise in the award or in the agency's regulations, 
the prior approval requirements described in this paragraph (e) are 
automatically waived (i.e., recipients need not obtain such prior 
approvals) unless one of the conditions included in paragraph (e)(2) 
applies.
    (f) The Federal awarding agency may, at its option, restrict the 
transfer of funds among direct cost categories or programs, functions 
and activities for awards in which the Federal share of the project 
exceeds $100,000 and the cumulative amount of such transfers exceeds or 
is expected to exceed 10 percent of the total budget as last approved by 
the Federal awarding agency. No Federal awarding agency shall permit a 
transfer that would cause any Federal appropriation or part thereof to 
be used for purposes other than those consistent with the original 
intent of the appropriation.
    (g) All other changes to nonconstruction budgets, except for the 
changes described in paragraph (j) of this section, do not require prior 
approval.
    (h) For construction awards, recipients shall request prior written 
approval promptly from Federal awarding agencies for budget revisions 
whenever paragraphs (h)(1), (2) or (3) of this section apply.
    (1) The revision results from changes in the scope or the objective 
of the project or program.
    (2) The need arises for additional Federal funds to complete the 
project.
    (3) A revision is desired which involves specific costs for which 
prior written approval requirements may be imposed consistent with 
applicable OMB cost principles listed in Sec. 215.27.
    (i) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved by OMB.
    (j) When a Federal awarding agency makes an award that provides 
support for both construction and nonconstruction work, the Federal 
awarding agency may require the recipient to request prior approval from 
the Federal awarding agency before making any fund or budget transfers 
between the two types of work supported.
    (k) For both construction and nonconstruction awards, Federal 
awarding agencies shall require recipients to notify the Federal 
awarding agency in writing promptly whenever the amount of Federal 
authorized funds is expected to exceed the needs of the recipient for 
the project period by more than $5000 or five percent of the Federal 
award, whichever is greater. This notification shall not be required if 
an application for additional funding is submitted for a continuation 
award.
    (l) When requesting approval for budget revisions, recipients shall 
use the budget forms that were used in the application unless the 
Federal awarding agency indicates a letter of request suffices.
    (m) Within 30 calendar days from the date of receipt of the request 
for budget revisions, Federal awarding agencies shall review the request 
and notify the recipient whether the budget revisions have been 
approved. If the revision is still under consideration at the end of 30 
calendar days, the Federal awarding agency shall inform the recipient in 
writing of the date when the recipient may expect the decision.

[69 FR 26281, May 11, 2004, as amended at 70 FR 51880, Aug. 31, 2005]



Sec. 215.26  Non-Federal audits.

    (a) Recipients and subrecipients that are institutions of higher 
education or other non-profit organizations (including hospitals) shall 
be subject to the audit requirements contained in the Single Audit Act 
Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB

[[Page 91]]

Circular A-133, ``Audits of States, Local Governments, and Non-Profit 
Organizations.''
    (b) State and local governments shall be subject to the audit 
requirements contained in the Single Audit Act Amendments of 1996 (31 
U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of States, 
Local Governments, and Non-Profit Organizations.''
    (c) For-profit hospitals not covered by the audit provisions of 
revised OMB Circular A-133 shall be subject to the audit requirements of 
the Federal awarding agencies.
    (d) Commercial organizations shall be subject to the audit 
requirements of the Federal awarding agency or the prime recipient as 
incorporated into the award document.



Sec. 215.27  Allowable costs.

    For each kind of recipient, there is a set of Federal principles for 
determining allowable costs. Allowability of costs shall be determined 
in accordance with the cost principles applicable to the entity 
incurring the costs. Thus, allowability of costs incurred by State, 
local or federally-recognized Indian tribal governments is determined in 
accordance with the provisions of 2 CFR part 225, ``Cost Principles for 
State, Local, and Indian Tribal Governments (OMB Circular A-87.'' The 
allowability of costs incurred by non-profit organizations is determined 
in accordance with the provisions of 2 CFR part 230, ``Cost Principles 
for Non-Profit Organizations (OMB Circular A-122).'' The allowability of 
costs incurred by institutions of higher education is determined in 
accordance with the provisions of 2 CFR part 220, ``Cost Principles for 
Educational Institutions (OMB Circular A-21).'' The allowability of 
costs incurred by hospitals is determined in accordance with the 
provisions of appendix E of 45 CFR part 74, ``Principles for Determining 
Costs Applicable to Research and Development Under Grants and Contracts 
with Hospitals.'' The allowability of costs incurred by commercial 
organizations and those non-profit organizations listed in Attachment C 
to Circular A-122 is determined in accordance with the provisions of the 
Federal Acquisition Regulation (FAR) at 48 CFR part 31.

[70 FR 51880, Aug. 31, 2005]



Sec. 215.28  Period of availability of funds.

    Where a funding period is specified, a recipient may charge to the 
grant only allowable costs resulting from obligations incurred during 
the funding period and any pre-award costs authorized by the Federal 
awarding agency.



Sec. 215.29  Conditional exemptions.

    (a) OMB authorizes conditional exemption from OMB administrative 
requirements and cost principles circulars for certain Federal programs 
with statutorily-authorized consolidated planning and consolidated 
administrative funding, that are identified by a Federal agency and 
approved by the head of the Executive department or establishment. A 
Federal agency shall consult with OMB during its consideration of 
whether to grant such an exemption.
    (b) To promote efficiency in State and local program administration, 
when Federal non-entitlement programs with common purposes have specific 
statutorily-authorized consolidated planning and consolidated 
administrative funding and where most of the State agency's resources 
come from non-Federal sources, Federal agencies may exempt these covered 
State-administered, non-entitlement grant programs from certain OMB 
grants management requirements. The exemptions would be from:
    (1) The requirements in 2 CFR part 225, ``Cost Principles for State, 
Local, and Indian Tribal Governments (OMB Circular A-87)'' other than 
the allocability of costs provisions that are contained in subsection 
C.3 of appendix A to that part;
    (2) The requirements in 2 CFR part 220, ``Cost Principles for 
Educational Institutions (OMB Circular A-21)'' other than the 
allocability of costs provisions that are contained in paragraph C.4 in 
section C of the appendix to that part;
    (3) The requirements in 2 CFR part 230, ``Cost Principles for Non-
Profit Organizations (OMB Circular A-122)''

[[Page 92]]

other than the allocability of costs provisions that are in paragraph 
A.4 in section A of appendix A to that part;
    (4) The administrative requirements provisions of part 215 (OMB 
Circular A-110, ``Uniform Administrative Requirements for Grants and 
Agreements with Institutions of Higher Education, Hospitals, and Other 
Non-Profit Organizations,''); and
    (5) The agencies' grants management common rule (see Sec. 215.5).
    (c) When a Federal agency provides this flexibility, as a 
prerequisite to a State's exercising this option, a State must adopt its 
own written fiscal and administrative requirements for expending and 
accounting for all funds, which are consistent with the provisions of 2 
CFR part 225, ``Cost Principles for State, Local, and Indian Tribal 
Governments (OMB Circular A-87)'' and extend such policies to all 
subrecipients. These fiscal and administrative requirements must be 
sufficiently specific to ensure that: funds are used in compliance with 
all applicable Federal statutory and regulatory provisions, costs are 
reasonable and necessary for operating these programs, and funds are not 
be used for general expenses required to carry out other 
responsibilities of a State or its subrecipients.

[69 FR 26281, May 11, 2004, as amended at 70 FR 51881, Aug. 31, 2005]

                           Property Standards



Sec. 215.30  Purpose of property standards.

    Sections 215.31 through 215.37 set forth uniform standards governing 
management and disposition of property furnished by the Federal 
Government whose cost was charged to a project supported by a Federal 
award. Federal awarding agencies shall require recipients to observe 
these standards under awards and shall not impose additional 
requirements, unless specifically required by Federal statute. The 
recipient may use its own property management standards and procedures 
provided it observes the provisions of Sec. Sec. 215.31 through 215.37.



Sec. 215.31  Insurance coverage.

    Recipients shall, at a minimum, provide the equivalent insurance 
coverage for real property and equipment acquired with Federal funds as 
provided to property owned by the recipient. Federally-owned property 
need not be insured unless required by the terms and conditions of the 
award.



Sec. 215.32  Real property.

    Each Federal awarding agency shall prescribe requirements for 
recipients concerning the use and disposition of real property acquired 
in whole or in part under awards. Unless otherwise provided by statute, 
such requirements, at a minimum, shall contain the following.
    (a) Title to real property shall vest in the recipient subject to 
the condition that the recipient shall use the real property for the 
authorized purpose of the project as long as it is needed and shall not 
encumber the property without approval of the Federal awarding agency.
    (b) The recipient shall obtain written approval by the Federal 
awarding agency for the use of real property in other federally-
sponsored projects when the recipient determines that the property is no 
longer needed for the purpose of the original project. Use in other 
projects shall be limited to those under federally-sponsored projects 
(i.e., awards) or programs that have purposes consistent with those 
authorized for support by the Federal awarding agency.
    (c) When the real property is no longer needed as provided in 
paragraphs (a) and (b) of this section, the recipient shall request 
disposition instructions from the Federal awarding agency or its 
successor Federal awarding agency. The Federal awarding agency shall 
observe one or more of the following disposition instructions.
    (1) The recipient may be permitted to retain title without further 
obligation to the Federal Government after it compensates the Federal 
Government for that percentage of the current fair market value of the 
property attributable to the Federal participation in the project.

[[Page 93]]

    (2) The recipient may be directed to sell the property under 
guidelines provided by the Federal awarding agency and pay the Federal 
Government for that percentage of the current fair market value of the 
property attributable to the Federal participation in the project (after 
deducting actual and reasonable selling and fix-up expenses, if any, 
from the sales proceeds). When the recipient is authorized or required 
to sell the property, proper sales procedures shall be established that 
provide for competition to the extent practicable and result in the 
highest possible return.
    (3) The recipient may be directed to transfer title to the property 
to the Federal Government or to an eligible third party provided that, 
in such cases, the recipient shall be entitled to compensation for its 
attributable percentage of the current fair market value of the 
property.



Sec. 215.33  Federally-owned and exempt property.

    (a) Federally-owned property. (1) Title to federally-owned property 
remains vested in the Federal Government. Recipients shall submit 
annually an inventory listing of federally-owned property in their 
custody to the Federal awarding agency. Upon completion of the award or 
when the property is no longer needed, the recipient shall report the 
property to the Federal awarding agency for further Federal agency 
utilization.
    (2) If the Federal awarding agency has no further need for the 
property, it shall be declared excess and reported to the General 
Services Administration, unless the Federal awarding agency has 
statutory authority to dispose of the property by alternative methods 
(e.g., the authority provided by the Federal Technology Transfer Act (15 
U.S.C. 3710 (I)) to donate research equipment to educational and non-
profit organizations in accordance with E.O. 12821, ``Improving 
Mathematics and Science Education in Support of the National Education 
Goals'' (57 FR 54285, 3 CFR, 1992 Comp., p. 323)). Appropriate 
instructions shall be issued to the recipient by the Federal awarding 
agency.
    (b) Exempt property. When statutory authority exists, the Federal 
awarding agency has the option to vest title to property acquired with 
Federal funds in the recipient without further obligation to the Federal 
Government and under conditions the Federal awarding agency considers 
appropriate. Such property is ``exempt property.'' Should a Federal 
awarding agency not establish conditions, title to exempt property upon 
acquisition shall vest in the recipient without further obligation to 
the Federal Government.



Sec. 215.34  Equipment.

    (a) Title to equipment acquired by a recipient with Federal funds 
shall vest in the recipient, subject to conditions of this section.
    (b) The recipient shall not use equipment acquired with Federal 
funds to provide services to non-Federal outside organizations for a fee 
that is less than private companies charge for equivalent services, 
unless specifically authorized by Federal statute, for as long as the 
Federal Government retains an interest in the equipment.
    (c) The recipient shall use the equipment in the project or program 
for which it was acquired as long as needed, whether or not the project 
or program continues to be supported by Federal funds and shall not 
encumber the property without approval of the Federal awarding agency. 
When no longer needed for the original project or program, the recipient 
shall use the equipment in connection with its other federally-sponsored 
activities, in the following order of priority:
    (1) Activities sponsored by the Federal awarding agency which funded 
the original project, then
    (2) Activities sponsored by other Federal awarding agencies.
    (d) During the time that equipment is used on the project or program 
for which it was acquired, the recipient shall make it available for use 
on other projects or programs if such other use will not interfere with 
the work on the project or program for which the equipment was 
originally acquired. First preference for such other use shall be given 
to other projects or programs sponsored by the Federal awarding agency 
that financed the equipment;

[[Page 94]]

second preference shall be given to projects or programs sponsored by 
other Federal awarding agencies. If the equipment is owned by the 
Federal Government, use on other activities not sponsored by the Federal 
Government shall be permissible if authorized by the Federal awarding 
agency. User charges shall be treated as program income.
    (e) When acquiring replacement equipment, the recipient may use the 
equipment to be replaced as trade-in or sell the equipment and use the 
proceeds to offset the costs of the replacement equipment subject to the 
approval of the Federal awarding agency.
    (f) The recipient's property management standards for equipment 
acquired with Federal funds and federally-owned equipment shall include 
all of the following:
    (1) Equipment records shall be maintained accurately and shall 
include the following information.
    (i) A description of the equipment.
    (ii) Manufacturer's serial number, model number, Federal stock 
number, national stock number, or other identification number.
    (iii) Source of the equipment, including the award number.
    (iv) Whether title vests in the recipient or the Federal Government.
    (v) Acquisition date (or date received, if the equipment was 
furnished by the Federal Government) and cost.
    (vi) Information from which one can calculate the percentage of 
Federal participation in the cost of the equipment (not applicable to 
equipment furnished by the Federal Government).
    (vii) Location and condition of the equipment and the date the 
information was reported.
    (viii) Unit acquisition cost.
    (ix) Ultimate disposition data, including date of disposal and sales 
price or the method used to determine current fair market value where a 
recipient compensates the Federal awarding agency for its share.
    (2) Equipment owned by the Federal Government shall be identified to 
indicate Federal ownership.
    (3) A physical inventory of equipment shall be taken and the results 
reconciled with the equipment records at least once every two years. Any 
differences between quantities determined by the physical inspection and 
those shown in the accounting records shall be investigated to determine 
the causes of the difference. The recipient shall, in connection with 
the inventory, verify the existence, current utilization, and continued 
need for the equipment.
    (4) A control system shall be in effect to insure adequate 
safeguards to prevent loss, damage, or theft of the equipment. Any loss, 
damage, or theft of equipment shall be investigated and fully 
documented; if the equipment was owned by the Federal Government, the 
recipient shall promptly notify the Federal awarding agency.
    (5) Adequate maintenance procedures shall be implemented to keep the 
equipment in good condition.
    (6) Where the recipient is authorized or required to sell the 
equipment, proper sales procedures shall be established which provide 
for competition to the extent practicable and result in the highest 
possible return.
    (g) When the recipient no longer needs the equipment, the equipment 
may be used for other activities in accordance with the following 
standards. For equipment with a current per unit fair market value of 
$5000 or more, the recipient may retain the equipment for other uses 
provided that compensation is made to the original Federal awarding 
agency or its successor. The amount of compensation shall be computed by 
applying the percentage of Federal participation in the cost of the 
original project or program to the current fair market value of the 
equipment. If the recipient has no need for the equipment, the recipient 
shall request disposition instructions from the Federal awarding agency. 
The Federal awarding agency shall determine whether the equipment can be 
used to meet the agency's requirements. If no requirement exists within 
that agency, the availability of the equipment shall be reported to the 
General Services Administration by the Federal awarding agency to 
determine whether a requirement for the equipment exists in other 
Federal agencies. The Federal awarding agency shall issue instructions 
to the recipient no later than 120 calendar

[[Page 95]]

days after the recipient's request and the following procedures shall 
govern.
    (1) If so instructed or if disposition instructions are not issued 
within 120 calendar days after the recipient's request, the recipient 
shall sell the equipment and reimburse the Federal awarding agency an 
amount computed by applying to the sales proceeds the percentage of 
Federal participation in the cost of the original project or program. 
However, the recipient shall be permitted to deduct and retain from the 
Federal share $500 or ten percent of the proceeds, whichever is less, 
for the recipient's selling and handling expenses.
    (2) If the recipient is instructed to ship the equipment elsewhere, 
the recipient shall be reimbursed by the Federal Government by an amount 
which is computed by applying the percentage of the recipient's 
participation in the cost of the original project or program to the 
current fair market value of the equipment, plus any reasonable shipping 
or interim storage costs incurred.
    (3) If the recipient is instructed to otherwise dispose of the 
equipment, the recipient shall be reimbursed by the Federal awarding 
agency for such costs incurred in its disposition.
    (4) The Federal awarding agency may reserve the right to transfer 
the title to the Federal Government or to a third party named by the 
Federal Government when such third party is otherwise eligible under 
existing statutes. Such transfer shall be subject to the following 
standards.
    (i) The equipment shall be appropriately identified in the award or 
otherwise made known to the recipient in writing.
    (ii) The Federal awarding agency shall issue disposition 
instructions within 120 calendar days after receipt of a final 
inventory. The final inventory shall list all equipment acquired with 
grant funds and federally-owned equipment. If the Federal awarding 
agency fails to issue disposition instructions within the 120 calendar 
day period, the recipient shall apply the standards of this section, as 
appropriate.
    (iii) When the Federal awarding agency exercises its right to take 
title, the equipment shall be subject to the provisions for federally-
owned equipment.



Sec. 215.35  Supplies and other expendable property.

    (a) Title to supplies and other expendable property shall vest in 
the recipient upon acquisition. If there is a residual inventory of 
unused supplies exceeding $5000 in total aggregate value upon 
termination or completion of the project or program and the supplies are 
not needed for any other federally-sponsored project or program, the 
recipient shall retain the supplies for use on non-Federal sponsored 
activities or sell them, but shall, in either case, compensate the 
Federal Government for its share. The amount of compensation shall be 
computed in the same manner as for equipment.
    (b) The recipient shall not use supplies acquired with Federal funds 
to provide services to non-Federal outside organizations for a fee that 
is less than private companies charge for equivalent services, unless 
specifically authorized by Federal statute as long as the Federal 
Government retains an interest in the supplies.



Sec. 215.36  Intangible property.

    (a) The recipient may copyright any work that is subject to 
copyright and was developed, or for which ownership was purchased, under 
an award. The Federal awarding agency(ies) reserve a royalty-free, 
nonexclusive and irrevocable right to reproduce, publish, or otherwise 
use the work for Federal purposes, and to authorize others to do so.
    (b) Recipients are subject to applicable regulations governing 
patents and inventions, including government-wide regulations issued by 
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts and Cooperative Agreements.''
    (c) The Federal Government has the right to:
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award.

[[Page 96]]

    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d) (1) In addition, in response to a Freedom of Information Act 
(FOIA) request for research data relating to published research findings 
produced under an award that was used by the Federal Government in 
developing an agency action that has the force and effect of law, the 
Federal awarding agency shall request, and the recipient shall provide, 
within a reasonable time, the research data so that they can be made 
available to the public through the procedures established under the 
FOIA. If the Federal awarding agency obtains the research data solely in 
response to a FOIA request, the agency may charge the requester a 
reasonable fee equaling the full incremental cost of obtaining the 
research data. This fee should reflect costs incurred by the agency, the 
recipient, and the applicable subrecipients. This fee is in addition to 
any fees the agency may assess under the FOIA (5 U.S.C. 552(a)(4)(A)).
    (2) The following definitions apply for purposes of paragraph (d) of 
this section:
    (i) Research data is defined as the recorded factual material 
commonly accepted in the scientific community as necessary to validate 
research findings, but not any of the following: Preliminary analyses, 
drafts of scientific papers, plans for future research, peer reviews, or 
communications with colleagues. This ``recorded'' material excludes 
physical objects (e.g., laboratory samples). Research data also do not 
include:
    (A) Trade secrets, commercial information, materials necessary to be 
held confidential by a researcher until they are published, or similar 
information which is protected under law; and
    (B) Personnel and medical information and similar information the 
disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy, such as information that could be used to identify a 
particular person in a research study.
    (ii) Published is defined as either when:
    (A) Research findings are published in a peer-reviewed scientific or 
technical journal; or
    (B) A Federal agency publicly and officially cites the research 
findings in support of an agency action that has the force and effect of 
law.
    (iii) Used by the Federal Government in developing an agency action 
that has the force and effect of law is defined as when an agency 
publicly and officially cites the research findings in support of an 
agency action that has the force and effect of law.
    (e) Title to intangible property and debt instruments acquired under 
an award or subaward vests upon acquisition in the recipient. The 
recipient shall use that property for the originally-authorized purpose, 
and the recipient shall not encumber the property without approval of 
the Federal awarding agency. When no longer needed for the originally 
authorized purpose, disposition of the intangible property shall occur 
in accordance with the provisions of Sec. 215.34(g).

[69 FR 26281, May 11, 2004, as amended at 70 FR 51881, Aug. 31, 2005]



Sec. 215.37  Property trust relationship.

    Real property, equipment, intangible property and debt instruments 
that are acquired or improved with Federal funds shall be held in trust 
by the recipient as trustee for the beneficiaries of the project or 
program under which the property was acquired or improved. Agencies may 
require recipients to record liens or other appropriate notices of 
record to indicate that personal or real property has been acquired or 
improved with Federal funds and that use and disposition conditions 
apply to the property.

                          Procurement Standards



Sec. 215.40  Purpose of procurement standards.

    Sections 215.41 through 215.48 set forth standards for use by 
recipients in establishing procedures for the procurement of supplies 
and other expendable property, equipment, real property and other 
services with Federal funds. These standards are furnished to ensure 
that such materials and services are obtained in an effective manner and 
in compliance with the provisions

[[Page 97]]

of applicable Federal statutes and executive orders. No additional 
procurement standards or requirements shall be imposed by the Federal 
awarding agencies upon recipients, unless specifically required by 
Federal statute or executive order or approved by OMB.



Sec. 215.41  Recipient responsibilities.

    The standards contained in this section do not relieve the recipient 
of the contractual responsibilities arising under its contract(s). The 
recipient is the responsible authority, without recourse to the Federal 
awarding agency, regarding the settlement and satisfaction of all 
contractual and administrative issues arising out of procurements 
entered into in support of an award or other agreement. This includes 
disputes, claims, protests of award, source evaluation or other matters 
of a contractual nature. Matters concerning violation of statute are to 
be referred to such Federal, State or local authority as may have proper 
jurisdiction.



Sec. 215.42  Codes of conduct.

    The recipient shall maintain written standards of conduct governing 
the performance of its employees engaged in the award and administration 
of contracts. No employee, officer, or agent shall participate in the 
selection, award, or administration of a contract supported by Federal 
funds if a real or apparent conflict of interest would be involved. Such 
a conflict would arise when the employee, officer, or agent, any member 
of his or her immediate family, his or her partner, or an organization 
which employs or is about to employ any of the parties indicated herein, 
has a financial or other interest in the firm selected for an award. The 
officers, employees, and agents of the recipient shall neither solicit 
nor accept gratuities, favors, or anything of monetary value from 
contractors, or parties to subagreements. However, recipients may set 
standards for situations in which the financial interest is not 
substantial or the gift is an unsolicited item of nominal value. The 
standards of conduct shall provide for disciplinary actions to be 
applied for violations of such standards by officers, employees, or 
agents of the recipient.



Sec. 215.43  Competition.

    All procurement transactions shall be conducted in a manner to 
provide, to the maximum extent practical, open and free competition. The 
recipient shall be alert to organizational conflicts of interest as well 
as noncompetitive practices among contractors that may restrict or 
eliminate competition or otherwise restrain trade. In order to ensure 
objective contractor performance and eliminate unfair competitive 
advantage, contractors that develop or draft specifications, 
requirements, statements of work, invitations for bids and/or requests 
for proposals shall be excluded from competing for such procurements. 
Awards shall be made to the bidder or offeror whose bid or offer is 
responsive to the solicitation and is most advantageous to the 
recipient, price, quality and other factors considered. Solicitations 
shall clearly set forth all requirements that the bidder or offeror 
shall fulfill in order for the bid or offer to be evaluated by the 
recipient. Any and all bids or offers may be rejected when it is in the 
recipient's interest to do so.



Sec. 215.44  Procurement procedures.

    (a) All recipients shall establish written procurement procedures. 
These procedures shall provide for, at a minimum, that paragraphs 
(a)(1), (2) and (3) of this section apply.
    (1) Recipients avoid purchasing unnecessary items.
    (2) Where appropriate, an analysis is made of lease and purchase 
alternatives to determine which would be the most economical and 
practical procurement for the Federal Government.
    (3) Solicitations for goods and services provide for all of the 
following.
    (i) A clear and accurate description of the technical requirements 
for the material, product or service to be procured. In competitive 
procurements, such a description shall not contain features which unduly 
restrict competition.
    (ii) Requirements which the bidder/offeror must fulfill and all 
other factors to be used in evaluating bids or proposals.
    (iii) A description, whenever practicable, of technical requirements 
in terms of functions to be performed or

[[Page 98]]

performance required, including the range of acceptable characteristics 
or minimum acceptable standards.
    (iv) The specific features of ``brand name or equal'' descriptions 
that bidders are required to meet when such items are included in the 
solicitation.
    (v) The acceptance, to the extent practicable and economically 
feasible, of products and services dimensioned in the metric system of 
measurement.
    (vi) Preference, to the extent practicable and economically 
feasible, for products and services that conserve natural resources and 
protect the environment and are energy efficient.
    (b) Positive efforts shall be made by recipients to utilize small 
businesses, minority-owned firms, and women's business enterprises, 
whenever possible. Recipients of Federal awards shall take all of the 
following steps to further this goal.
    (1) Ensure that small businesses, minority-owned firms, and women's 
business enterprises are used to the fullest extent practicable.
    (2) Make information on forthcoming opportunities available and 
arrange time frames for purchases and contracts to encourage and 
facilitate participation by small businesses, minority-owned firms, and 
women's business enterprises.
    (3) Consider in the contract process whether firms competing for 
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
    (4) Encourage contracting with consortiums of small businesses, 
minority-owned firms and women's business enterprises when a contract is 
too large for one of these firms to handle individually.
    (5) Use the services and assistance, as appropriate, of such 
organizations as the Small Business Administration and the Department of 
Commerce's Minority Business Development Agency in the solicitation and 
utilization of small businesses, minority-owned firms and women's 
business enterprises.
    (c) The type of procuring instruments used (e.g., fixed price 
contracts, cost reimbursable contracts, purchase orders, and incentive 
contracts) shall be determined by the recipient but shall be appropriate 
for the particular procurement and for promoting the best interest of 
the program or project involved. The ``cost-plus-a-percentage-of-cost'' 
or ``percentage of construction cost'' methods of contracting shall not 
be used.
    (d) Contracts shall be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of the proposed procurement. Consideration shall be given 
to such matters as contractor integrity, record of past performance, 
financial and technical resources or accessibility to other necessary 
resources. In certain circumstances, contracts with certain parties are 
restricted by agencies' implementation of E.O.s 12549 and 12689, 
``Debarment and Suspension.''
    (e) Recipients shall, on request, make available for the Federal 
awarding agency, pre-award review and procurement documents, such as 
request for proposals or invitations for bids, independent cost 
estimates, etc., when any of the following conditions apply.
    (1) A recipient's procurement procedures or operation fails to 
comply with the procurement standards in the Federal awarding agency's 
implementation of this part.
    (2) The procurement is expected to exceed the small purchase 
threshold fixed at 41 U.S.C. 403 (11) (currently $25,000) and is to be 
awarded without competition or only one bid or offer is received in 
response to a solicitation.
    (3) The procurement, which is expected to exceed the small purchase 
threshold, specifies a ``brand name'' product.
    (4) The proposed award over the small purchase threshold is to be 
awarded to other than the apparent low bidder under a sealed bid 
procurement.
    (5) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the amount of the small 
purchase threshold.



Sec. 215.45  Cost and price analysis.

    Some form of cost or price analysis shall be made and documented in 
the procurement files in connection with every procurement action. Price 
analysis may be accomplished in various

[[Page 99]]

ways, including the comparison of price quotations submitted, market 
prices and similar indicia, together with discounts. Cost analysis is 
the review and evaluation of each element of cost to determine 
reasonableness, allocability and allowability.



Sec. 215.46  Procurement records.

    Procurement records and files for purchases in excess of the small 
purchase threshold shall include the following at a minimum:
    (a) Basis for contractor selection;
    (b) Justification for lack of competition when competitive bids or 
offers are not obtained; and
    (c) Basis for award cost or price.



Sec. 215.47  Contract administration.

    A system for contract administration shall be maintained to ensure 
contractor conformance with the terms, conditions and specifications of 
the contract and to ensure adequate and timely follow up of all 
purchases. Recipients shall evaluate contractor performance and 
document, as appropriate, whether contractors have met the terms, 
conditions and specifications of the contract.



Sec. 215.48  Contract provisions.

    The recipient shall include, in addition to provisions to define a 
sound and complete agreement, the following provisions in all contracts. 
The following provisions shall also be applied to subcontracts.
    (a) Contracts in excess of the small purchase threshold shall 
contain contractual provisions or conditions that allow for 
administrative, contractual, or legal remedies in instances in which a 
contractor violates or breaches the contract terms, and provide for such 
remedial actions as may be appropriate.
    (b) All contracts in excess of the small purchase threshold shall 
contain suitable provisions for termination by the recipient, including 
the manner by which termination shall be effected and the basis for 
settlement. In addition, such contracts shall describe conditions under 
which the contract may be terminated for default as well as conditions 
where the contract may be terminated because of circumstances beyond the 
control of the contractor.
    (c) Except as otherwise required by statute, an award that requires 
the contracting (or subcontracting) for construction or facility 
improvements shall provide for the recipient to follow its own 
requirements relating to bid guarantees, performance bonds, and payment 
bonds unless the construction contract or subcontract exceeds $100,000. 
For those contracts or subcontracts exceeding $100,000, the Federal 
awarding agency may accept the bonding policy and requirements of the 
recipient, provided the Federal awarding agency has made a determination 
that the Federal Government's interest is adequately protected. If such 
a determination has not been made, the minimum requirements shall be as 
follows.
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder shall, upon acceptance 
of his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by statute of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (4) Where bonds are required in the situations described herein, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties pursuant to 31 CFR part 223, ``Surety Companies 
Doing Business with the United States.''
    (d) All negotiated contracts (except those for less than the small 
purchase threshold) awarded by recipients shall include a provision to 
the effect that the recipient, the Federal awarding

[[Page 100]]

agency, the Comptroller General of the United States, or any of their 
duly authorized representatives, shall have access to any books, 
documents, papers and records of the contractor which are directly 
pertinent to a specific program for the purpose of making audits, 
examinations, excerpts and transcriptions.
    (e) All contracts, including small purchases, awarded by recipients 
and their contractors shall contain the procurement provisions of 
appendix A to this part, as applicable.

                           Reports and Records



Sec. 215.50  Purpose of reports and records.

    Sections 215.51 through 215.53 set forth the procedures for 
monitoring and reporting on the recipient's financial and program 
performance and the necessary standard reporting forms. They also set 
forth record retention requirements.



Sec. 215.51  Monitoring and reporting program performance.

    (a) Recipients are responsible for managing and monitoring each 
project, program, subaward, function or activity supported by the award. 
Recipients shall monitor subawards to ensure subrecipients have met the 
audit requirements as delineated in Sec. 215.26.
    (b) The Federal awarding agency shall prescribe the frequency with 
which the performance reports shall be submitted. Except as provided in 
Sec. 215.51(f), performance reports shall not be required more 
frequently than quarterly or, less frequently than annually. Annual 
reports shall be due 90 calendar days after the grant year; quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
Federal awarding agency may require annual reports before the 
anniversary dates of multiple year awards in lieu of these requirements. 
The final performance reports are due 90 calendar days after the 
expiration or termination of the award.
    (c) If inappropriate, a final technical or performance report shall 
not be required after completion of the project.
    (d) When required, performance reports shall generally contain, for 
each award, brief information on each of the following.
    (1) A comparison of actual accomplishments with the goals and 
objectives established for the period, the findings of the investigator, 
or both. Whenever appropriate and the output of programs or projects can 
be readily quantified, such quantitative data should be related to cost 
data for computation of unit costs.
    (2) Reasons why established goals were not met, if appropriate.
    (3) Other pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (e) Recipients shall not be required to submit more than the 
original and two copies of performance reports.
    (f) Recipients shall immediately notify the Federal awarding agency 
of developments that have a significant impact on the award-supported 
activities. Also, notification shall be given in the case of problems, 
delays, or adverse conditions which materially impair the ability to 
meet the objectives of the award. This notification shall include a 
statement of the action taken or contemplated, and any assistance needed 
to resolve the situation.
    (g) Federal awarding agencies may make site visits, as needed.
    (h) Federal awarding agencies shall comply with clearance 
requirements of 5 CFR part 1320 when requesting performance data from 
recipients.



Sec. 215.52  Financial reporting.

    (a) The following forms or such other forms as may be approved by 
OMB are authorized for obtaining financial information from recipients.
    (1) SF-269 or SF-269A, Financial Status Report.
    (i) Each Federal awarding agency shall require recipients to use the 
SF-269 or SF-269A to report the status of funds for all nonconstruction 
projects or programs. A Federal awarding agency may, however, have the 
option of not requiring the SF-269 or SF-269A when the SF-270, Request 
for Advance or Reimbursement, or SF-272, Report of Federal Cash 
Transactions, is determined to provide adequate information to meet its 
needs, except that a final SF-269 or SF-269A shall be required at

[[Page 101]]

the completion of the project when the SF-270 is used only for advances.
    (ii) The Federal awarding agency shall prescribe whether the report 
shall be on a cash or accrual basis. If the Federal awarding agency 
requires accrual information and the recipient's accounting records are 
not normally kept on the accrual basis, the recipient shall not be 
required to convert its accounting system, but shall develop such 
accrual information through best estimates based on an analysis of the 
documentation on hand.
    (iii) The Federal awarding agency shall determine the frequency of 
the Financial Status Report for each project or program, considering the 
size and complexity of the particular project or program. However, the 
report shall not be required more frequently than quarterly or less 
frequently than annually. A final report shall be required at the 
completion of the agreement.
    (iv) The Federal awarding agency shall require recipients to submit 
the SF-269 or SF-269A (an original and no more than two copies) no later 
than 30 days after the end of each specified reporting period for 
quarterly and semi-annual reports, and 90 calendar days for annual and 
final reports. Extensions of reporting due dates may be approved by the 
Federal awarding agency upon request of the recipient.
    (2) SF-272, Report of Federal Cash Transactions.
    (i) When funds are advanced to recipients the Federal awarding 
agency shall require each recipient to submit the SF-272 and, when 
necessary, its continuation sheet, SF-272a. The Federal awarding agency 
shall use this report to monitor cash advanced to recipients and to 
obtain disbursement information for each agreement with the recipients.
    (ii) Federal awarding agencies may require forecasts of Federal cash 
requirements in the ``Remarks'' section of the report.
    (iii) When practical and deemed necessary, Federal awarding agencies 
may require recipients to report in the ``Remarks'' section the amount 
of cash advances received in excess of three days. Recipients shall 
provide short narrative explanations of actions taken to reduce the 
excess balances.
    (iv) Recipients shall be required to submit not more than the 
original and two copies of the SF-272 15 calendar days following the end 
of each quarter. The Federal awarding agencies may require a monthly 
report from those recipients receiving advances totaling $1 million or 
more per year.
    (v) Federal awarding agencies may waive the requirement for 
submission of the SF-272 for any one of the following reasons:
    (A) When monthly advances do not exceed $25,000 per recipient, 
provided that such advances are monitored through other forms contained 
in this section;
    (B) If, in the Federal awarding agency's opinion, the recipient's 
accounting controls are adequate to minimize excessive Federal advances; 
or,
    (C) When the electronic payment mechanisms provide adequate data.
    (b) When the Federal awarding agency needs additional information or 
more frequent reports, the following shall be observed.
    (1) When additional information is needed to comply with legislative 
requirements, Federal awarding agencies shall issue instructions to 
require recipients to submit such information under the ``Remarks'' 
section of the reports.
    (2) When a Federal awarding agency determines that a recipient's 
accounting system does not meet the standards in Sec. 215.21, 
additional pertinent information to further monitor awards may be 
obtained upon written notice to the recipient until such time as the 
system is brought up to standard. The Federal awarding agency, in 
obtaining this information, shall comply with report clearance 
requirements of 5 CFR part 1320.
    (3) Federal awarding agencies are encouraged to shade out any line 
item on any report if not necessary.
    (4) Federal awarding agencies may accept the identical information 
from the recipients in machine readable format or computer printouts or 
electronic outputs in lieu of prescribed formats.
    (5) Federal awarding agencies may provide computer or electronic 
outputs

[[Page 102]]

to recipients when such expedites or contributes to the accuracy of 
reporting.



Sec. 215.53  Retention and access requirements for records.

    (a) This section sets forth requirements for record retention and 
access to records for awards to recipients. Federal awarding agencies 
shall not impose any other record retention or access requirements upon 
recipients.
    (b) Financial records, supporting documents, statistical records, 
and all other records pertinent to an award shall be retained for a 
period of three years from the date of submission of the final 
expenditure report or, for awards that are renewed quarterly or 
annually, from the date of the submission of the quarterly or annual 
financial report, as authorized by the Federal awarding agency. The only 
exceptions are the following.
    (1) If any litigation, claim, or audit is started before the 
expiration of the 3-year period, the records shall be retained until all 
litigation, claims or audit findings involving the records have been 
resolved and final action taken.
    (2) Records for real property and equipment acquired with Federal 
funds shall be retained for 3 years after final disposition.
    (3) When records are transferred to or maintained by the Federal 
awarding agency, the 3-year retention requirement is not applicable to 
the recipient.
    (4) Indirect cost rate proposals, cost allocations plans, etc. as 
specified in Sec. 215.53(g).
    (c) Copies of original records may be substituted for the original 
records if authorized by the Federal awarding agency.
    (d) The Federal awarding agency shall request transfer of certain 
records to its custody from recipients when it determines that the 
records possess long term retention value. However, in order to avoid 
duplicate recordkeeping, a Federal awarding agency may make arrangements 
for recipients to retain any records that are continuously needed for 
joint use.
    (e) The Federal awarding agency, the Inspector General, Comptroller 
General of the United States, or any of their duly authorized 
representatives, have the right of timely and unrestricted access to any 
books, documents, papers, or other records of recipients that are 
pertinent to the awards, in order to make audits, examinations, 
excerpts, transcripts and copies of such documents. This right also 
includes timely and reasonable access to a recipient's personnel for the 
purpose of interview and discussion related to such documents. The 
rights of access in this paragraph are not limited to the required 
retention period, but shall last as long as records are retained.
    (f) Unless required by statute, no Federal awarding agency shall 
place restrictions on recipients that limit public access to the records 
of recipients that are pertinent to an award, except when the Federal 
awarding agency can demonstrate that such records shall be kept 
confidential and would have been exempted from disclosure pursuant to 
the Freedom of Information Act (5 U.S.C. 552) if the records had 
belonged to the Federal awarding agency.
    (g) Indirect cost rate proposals, cost allocations plans, etc. 
Paragraphs (g)(1) and (g)(2) of this section apply to the following 
types of documents, and their supporting records: indirect cost rate 
computations or proposals, cost allocation plans, and any similar 
accounting computations of the rate at which a particular group of costs 
is chargeable (such as computer usage chargeback rates or composite 
fringe benefit rates).
    (1) If submitted for negotiation. If the recipient submits to the 
Federal awarding agency or the subrecipient submits to the recipient the 
proposal, plan, or other computation to form the basis for negotiation 
of the rate, then the 3-year retention period for its supporting records 
starts on the date of such submission.
    (2) If not submitted for negotiation. If the recipient is not 
required to submit to the Federal awarding agency or the subrecipient is 
not required to submit to the recipient the proposal, plan, or other 
computation for negotiation purposes, then the 3-year retention period 
for the proposal, plan, or other computation and its supporting records

[[Page 103]]

starts at the end of the fiscal year (or other accounting period) 
covered by the proposal, plan, or other computation.

                       Termination and Enforcement



Sec. 215.60  Purpose of termination and enforcement.

    Sections 215.61 and 215.62 set forth uniform suspension, termination 
and enforcement procedures.



Sec. 215.61  Termination.

    (a) Awards may be terminated in whole or in part only if paragraphs 
(a)(1), (2) or (3) of this section apply.
    (1) By the Federal awarding agency, if a recipient materially fails 
to comply with the terms and conditions of an award.
    (2) By the Federal awarding agency with the consent of the 
recipient, in which case the two parties shall agree upon the 
termination conditions, including the effective date and, in the case of 
partial termination, the portion to be terminated.
    (3) By the recipient upon sending to the Federal awarding agency 
written notification setting forth the reasons for such termination, the 
effective date, and, in the case of partial termination, the portion to 
be terminated. However, if the Federal awarding agency determines in the 
case of partial termination that the reduced or modified portion of the 
grant will not accomplish the purposes for which the grant was made, it 
may terminate the grant in its entirety under either paragraphs (a)(1) 
or (2) of this section.
    (b) If costs are allowed under an award, the responsibilities of the 
recipient referred to in Sec. 215.71(a), including those for property 
management as applicable, shall be considered in the termination of the 
award, and provision shall be made for continuing responsibilities of 
the recipient after termination, as appropriate.



Sec. 215.62  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply with the terms and conditions of an award, whether stated in a 
Federal statute, regulation, assurance, application, or notice of award, 
the Federal awarding agency may, in addition to imposing any of the 
special conditions outlined in Sec. 215.14, take one or more of the 
following actions, as appropriate in the circumstances.
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the recipient or more severe enforcement action by the 
Federal awarding agency.
    (2) Disallow (that is, deny both use of funds and any applicable 
matching credit for) all or part of the cost of the activity or action 
not in compliance.
    (3) Wholly or partly suspend or terminate the current award.
    (4) Withhold further awards for the project or program.
    (5) Take other remedies that may be legally available.
    (b) Hearings and appeals. In taking an enforcement action, the 
awarding agency shall provide the recipient an opportunity for hearing, 
appeal, or other administrative proceeding to which the recipient is 
entitled under any statute or regulation applicable to the action 
involved.
    (c) Effects of suspension and termination. Costs of a recipient 
resulting from obligations incurred by the recipient during a suspension 
or after termination of an award are not allowable unless the awarding 
agency expressly authorizes them in the notice of suspension or 
termination or subsequently. Other recipient costs during suspension or 
after termination which are necessary and not reasonably avoidable are 
allowable if paragraphs (c)(1) and (2) of this section apply.
    (1) The costs result from obligations which were properly incurred 
by the recipient before the effective date of suspension or termination, 
are not in anticipation of it, and in the case of a termination, are 
noncancellable.
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude a recipient from being subject to debarment 
and suspension under E.O.s 12549 and 12689 and the Federal

[[Page 104]]

awarding agency implementing regulations (see Sec. 215.13).



                 Subpart D_After-the-Award Requirements



Sec. 215.70  Purpose.

    Sections 215.71 through 215.73 contain closeout procedures and other 
procedures for subsequent disallowances and adjustments.



Sec. 215.71  Closeout procedures.

    (a) Recipients shall submit, within 90 calendar days after the date 
of completion of the award, all financial, performance, and other 
reports as required by the terms and conditions of the award. The 
Federal awarding agency may approve extensions when requested by the 
recipient.
    (b) Unless the Federal awarding agency authorizes an extension, a 
recipient shall liquidate all obligations incurred under the award not 
later than 90 calendar days after the funding period or the date of 
completion as specified in the terms and conditions of the award or in 
agency implementing instructions.
    (c) The Federal awarding agency shall make prompt payments to a 
recipient for allowable reimbursable costs under the award being closed 
out.
    (d) The recipient shall promptly refund any balances of unobligated 
cash that the Federal awarding agency has advanced or paid and that is 
not authorized to be retained by the recipient for use in other 
projects. OMB Circular A-129 governs unreturned amounts that become 
delinquent debts.
    (e) When authorized by the terms and conditions of the award, the 
Federal awarding agency shall make a settlement for any upward or 
downward adjustments to the Federal share of costs after closeout 
reports are received.
    (f) The recipient shall account for any real and personal property 
acquired with Federal funds or received from the Federal Government in 
accordance with Sec. 215.31 through Sec. 215.37.
    (g) In the event a final audit has not been performed prior to the 
closeout of an award, the Federal awarding agency shall retain the right 
to recover an appropriate amount after fully considering the 
recommendations on disallowed costs resulting from the final audit.



Sec. 215.72  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following:
    (1) The right of the Federal awarding agency to disallow costs and 
recover funds on the basis of a later audit or other review.
    (2) The obligation of the recipient to return any funds due as a 
result of later refunds, corrections, or other transactions.
    (3) Audit requirements in Sec. 215.26.
    (4) Property management requirements in Sec. Sec. 215.31 through 
215.37.
    (5) Records retention as required in Sec. 215.53.
    (b) After closeout of an award, a relationship created under an 
award may be modified or ended in whole or in part with the consent of 
the Federal awarding agency and the recipient, provided the 
responsibilities of the recipient referred to in paragraph (a) of this 
section, including those for property management as applicable, are 
considered and provisions made for continuing responsibilities of the 
recipient, as appropriate.

[69 FR 26281, May 11, 2004, as amended at 70 FR 51881, Aug. 31, 2005]



Sec. 215.73  Collection of amounts due.

    (a) Any funds paid to a recipient in excess of the amount to which 
the recipient is finally determined to be entitled under the terms and 
conditions of the award constitute a debt to the Federal Government. If 
not paid within a reasonable period after the demand for payment, the 
Federal awarding agency may reduce the debt by paragraphs (a)(1), (2) or 
(3) of this section.
    (1) Making an administrative offset against other requests for 
reimbursements.
    (2) Withholding advance payments otherwise due to the recipient.
    (3) Taking other action permitted by statute.
    (b) Except as otherwise provided by law, the Federal awarding agency 
shall charge interest on an overdue debt in accordance with 4 CFR 
Chapter II, ``Federal Claims Collection Standards.''

[[Page 105]]



            Sec. Appendix A to Part 215--Contract Provisions

    All contracts, awarded by a recipient including small purchases, 
shall contain the following provisions as applicable:
    1. Equal Employment Opportunity--All contracts shall contain a 
provision requiring compliance with E.O. 11246, ``Equal Employment 
Opportunity'' (30 FR 12319, 12935, 3 CFR, 1964-1965 Comp., p. 339), as 
amended by E.O. 11375, ``Amending Executive Order 11246 Relating to 
Equal Employment Opportunity,'' and as supplemented by regulations at 41 
CFR part 60, ``Office of Federal Contract Compliance Programs, Equal 
Employment Opportunity, Department of Labor.''
    2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 
276c)--All contracts and subgrants in excess of $2000 for construction 
or repair awarded by recipients and subrecipients shall include a 
provision for compliance with the Copeland ``Anti-Kickback'' Act (18 
U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR 
part 3, ``Contractors and Subcontractors on Public Building or Public 
Work Financed in Whole or in Part by Loans or Grants from the United 
States''). The Act provides that each contractor or subrecipient shall 
be prohibited from inducing, by any means, any person employed in the 
construction, completion, or repair of public work, to give up any part 
of the compensation to which he is otherwise entitled. The recipient 
shall report all suspected or reported violations to the Federal 
awarding agency.
    3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When 
required by Federal program legislation, all construction contracts 
awarded by the recipients and subrecipients of more than $2000 shall 
include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 
276a to a-7) and as supplemented by Department of Labor regulations (29 
CFR part 5, ``Labor Standards Provisions Applicable to Contracts 
Governing Federally Financed and Assisted Construction''). Under this 
Act, contractors shall be required to pay wages to laborers and 
mechanics at a rate not less than the minimum wages specified in a wage 
determination made by the Secretary of Labor. In addition, contractors 
shall be required to pay wages not less than once a week. The recipient 
shall place a copy of the current prevailing wage determination issued 
by the Department of Labor in each solicitation and the award of a 
contract shall be conditioned upon the acceptance of the wage 
determination. The recipient shall report all suspected or reported 
violations to the Federal awarding agency.
    4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333)--Where applicable, all contracts awarded by recipients in excess of 
$2000 for construction contracts and in excess of $2500 for other 
contracts that involve the employment of mechanics or laborers shall 
include a provision for compliance with sections 102 and 107 of the 
Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as 
supplemented by Department of Labor regulations (29 CFR part 5). Under 
section 102 of the Act, each contractor shall be required to compute the 
wages of every mechanic and laborer on the basis of a standard work week 
of 40 hours. Work in excess of the standard work week is permissible 
provided that the worker is compensated at a rate of not less than 1\1/
2\ times the basic rate of pay for all hours worked in excess of 40 
hours in the work week. Section 107 of the Act is applicable to 
construction work and provides that no laborer or mechanic shall be 
required to work in surroundings or under working conditions which are 
unsanitary, hazardous or dangerous. These requirements do not apply to 
the purchases of supplies or materials or articles ordinarily available 
on the open market, or contracts for transportation or transmission of 
intelligence.
    5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental, 
developmental, or research work shall provide for the rights of the 
Federal Government and the recipient in any resulting invention in 
accordance with 37 CFR part 401, ``Rights to Inventions Made by 
Nonprofit Organizations and Small Business Firms Under Government 
Grants, Contracts and Cooperative Agreements,'' and any implementing 
regulations issued by the awarding agency.
    6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts 
and subgrants of amounts in excess of $100,000 shall contain a provision 
that requires the recipient to agree to comply with all applicable 
standards, orders or regulations issued pursuant to the Clean Air Act 
(42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as 
amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the 
Federal awarding agency and the Regional Office of the Environmental 
Protection Agency (EPA).
    7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors who 
apply or bid for an award of $100,000 or more shall file the required 
certification. Each tier certifies to the tier above that it will not 
and has not used Federal appropriated funds to pay any person or 
organization for influencing or attempting to influence an officer or 
employee of any agency, a member of Congress, officer or employee of 
Congress, or an employee of a member of Congress in connection with 
obtaining any Federal contract, grant or any other award covered by 31 
U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal 
funds that takes place in connection with obtaining any Federal award.

[[Page 106]]

Such disclosures are forwarded from tier to tier up to the recipient.
    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 2 CFR 180.220) shall not be made to parties 
listed on the government-wide Excluded Parties List System, in 
accordance with the OMB guidelines at 2 CFR part 180 that implement 
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.

[69 FR 26281, May 11, 2004, as amended at 70 FR 51879, Aug. 31, 2005]

                        PARTS 216	219 [RESERVED]



PART 220_COST PRINCIPLES FOR EDUCATIONAL INSTITUTIONS (OMB CIRCULAR A	21)--Table of Contents



Sec.
220.5 Purpose.
220.10 Scope.
220.15 Policy.
220.20 Applicability.
220.25 OMB responsibilities.
220.30 Federal agency responsibilities.
220.35 Effective date of changes.
220.40 Relationship to previous issuance.
220.45 Information contact.

Appendix A to Part 220--Principles for Determining Costs Applicable to 
          Grants, Contracts, and Other Agreements with Educational 
          Institutions

    Authority: 31 U.S.C. 503; 31 U.S.C. 1111; 41 U.S.C. 405; 
Reorganization Plan No. 2 of 1970; E.O. 11541, 35 FR 10737, 3 CFR, 1966-
1970, p. 939.

    Source: 70 FR 51881, Aug. 31, 2005, unless otherwise noted.



Sec. 220.5  Purpose.

    This part establishes principles for determining costs applicable to 
grants, contracts, and other agreements with educational institutions.



Sec. 220.10  Scope.

    The principles in this part deal with the subject of cost 
determination, and make no attempt to identify the circumstances or 
dictate the extent of agency and institutional participation in the 
financing of a particular project. Provision for profit or other 
increment above cost is outside the scope of this part.



Sec. 220.15  Policy.

    The principles in this part are designed to provide that the Federal 
Government bear its fair share of total costs, determined in accordance 
with generally accepted accounting principles, except where restricted 
or prohibited by law. Agencies are not expected to place additional 
restrictions on individual items of cost. The successful application of 
cost accounting principles requires development of mutual understanding 
between representatives of educational institutions and of the Federal 
Government as to their scope, implementation, and interpretation.



Sec. 220.20  Applicability.

    (a) All Federal agencies that sponsor research and development, 
training, and other work at educational institutions shall apply the 
provisions of appendix A to this part in determining the costs incurred 
for such work. The principles shall also be used as a guide in the 
pricing of fixed price or lump sum agreements.
    (b) Each federal agency that awards defense-related contracts to a 
Federally Funded Research and Development Center (FFRDC) associated with 
an educational institution shall require the FFRDC to comply with the 
Cost Accounting Standards and with the rules and regulations issued by 
the Cost Accounting Standards Board and set forth in 47 CFR part 99.



Sec. 220.25  OMB responsibilities.

    OMB is responsible for:
    (a) Issuing and maintaining the guidance in this part.
    (b) Interpreting the policy requirements in this part and providing 
assistance to ensure effective and efficient implementation.
    (c) Granting any deviations to Federal agencies from the guidance in 
this part, as provided in appendix A to this part. Exceptions will only 
be made in particular cases where adequate justification is presented.

[[Page 107]]

    (d) Conducting broad oversight of government-wide compliance with 
the guidance in this part.



Sec. 220.30  Federal Agency responsibilities.

    The head of each Federal agency that awards and administers grants 
and agreements subject to this part is responsible for requesting 
approval from and/or consulting with OMB (as applicable) for deviations 
from the guidance in appendix A to this part and performing the 
applicable functions specified in appendix A to this part.



Sec. 220.35  Effective date for changes.

    Institutions as of the start of their first fiscal year beginning 
after that date shall implement the provisions. Earlier implementation, 
or a delay in implementation of individual provisions, is permitted by 
mutual agreement between an institution and the cognizant Federal 
agency.



Sec. 220.40  Relationship to previous issuance.

    (a) The guidance in this part previously was issued as OMB Circular 
A-21. Designations of the attachment to the Circular and the appendices 
to that attachment have changed, as shown in the following table:

------------------------------------------------------------------------
 The portion of OMB Circular A-21 that   Is designated in this part as .
        was designated as . . .                        . .
------------------------------------------------------------------------
(1) The Attachment to the circular,      Appendix A to Part 220--
 entitled ``Principles For Determining    Principles For Determining
 Costs Applicable to Grants, Contracts,   Costs Applicable to Grants,
 and Other Agreements with Educational    Contracts, and Other
 Institutions,''.                         Agreements with Educational
                                          Institutions.
(2) Exhibit A in the attachment to the   Exhibit A, List of Colleges and
 circular, entitled ``List of Colleges    Universities Subject to
 and Universities Subject to Section      Section J.12.h of Circular A-
 J.12.h of Circular A-21,''.              21, to Appendix A.
(3) Exhibit B in the attachment to the   Exhibit B, Listing of
 circular, entitled ``Listing of          Institutions that are eligible
 Institutions that are eligible for the   for the utility cost
 utility cost adjustment,''.              adjustment, to Appendix A.
(4) Exhibit C in the attachment to the   Exhibit C, Examples of ``major
 circular, entitled ``Examples of         project'' where direct
 `major project' where direct charging    charging of administrative or
 of administrative or clerical staff      clerical staff salaries may be
 salaries may be appropriate,''.          appropriate, to Appendix A.
(5) Appendix A to the attachment to the  Attachment A, CASB's Cost
 circular, entitled ``CASB's Cost         Accounting Standards (CAS), to
 Accounting Standards (CAS),''.           Appendix A.
(6) Appendix B to the attachment to the  Attachment B, CASB's Disclosure
 circular, entitled ``CASB's Disclosure   Statement (DS-2), to Appendix
 Statement (DS-2),''.                     A.
(7) Appendix C to the attachment to the  Attachment C, Documentation
 circular, entitled ``Documentation       Requirements for Facilities
 Requirements for Facilities and          and Administrative (F&A) Rate
 Administrative (F&A) Rate Proposals,''.  Proposals, to Appendix A.
------------------------------------------------------------------------

    (b) Historically, OMB Circular A-21 superseded Federal Management 
Circular 73-8, dated December 19, 1973. FMC 73-8 was revised and 
reissued under its original designation of OMB Circular No. A-21. The 
provisions of A-21 were effective October 1, 1979, except for subsequent 
amendments incorporated herein for which the effective dates were 
specified in these revisions (47 FR 33658, 51 FR 20908, 51 FR 43487, 56 
FR 50224, 58 FR 39996, 61 FR 20880, 63 FR 29786, 63 FR 57332, 65 FR 
48566 and 69 FR 25970).



Sec. 220.45  Information contact.

    Further information concerning this part may be obtained by 
contacting the Office of Federal Financial Management, Office of 
Management and Budget, Washington, DC 20503, telephone (202) 395-3993.



Sec. Appendix A to Part 220--Principles for Determining Costs Applicable 
to Grants, Contracts, and Other Agreements With Educational Institutions

                            Table of Contents

A. Purpose and Scope
1. Objectives
2. Policy guides
3. Application
4. Inquiries
B. Definition of Terms
1. Major functions of an institution
2. Sponsored agreement
3. Allocation
4. Facilities and administrative (F&A) costs
C. Basic Considerations
1. Composition of total costs
2. Factors affecting allowability of costs
3. Reasonable costs
4. Allocable costs
5. Applicable credits

[[Page 108]]

6. Costs incurred by State and local governments
7. Limitations on allowance of costs
8. Collection of unallowable costs
9. Adjustment of previously negotiated F&A cost rates containing 
unallowable costs
10. Consistency in estimating, accumulating and reporting costs
11. Consistency in allocating costs incurred for the same purpose
12. Accounting for unallowable costs
13. Cost accounting period
14. Disclosure statement
D. Direct Costs
1. General
2. Application to sponsored agreements
E. F&A Costs
1. General
2. Criteria for distribution
F. Identification and Assignment of F&A Costs
1. Definition of Facilities and Administration.
2. Depreciation and use allowances
3. Interest
4. Operation and maintenance expenses
5. General administration and general expenses
6. Departmental administration expenses
7. Sponsored projects administration
8. Library expenses
9. Student administration and services
10. Offset for F&A expenses otherwise provided for by the Federal 
Government
G. Determination and Application of F&A Cost Rate or Rates
1. F&A cost pools
2. The distribution basis
3. Negotiated lump sum for F&A costs
4. Predetermined rates for F&A costs
5. Negotiated fixed rates and carry-forward provisions
6. Provisional and final rates for F&A costs
7. Fixed rates for the life of the sponsored agreement
8. Limitation on reimbursement of administrative costs
9. Alternative method for administrative costs
10. Individual rate components
11. Negotiation and approval of F&A rate
12. Standard format for submission
H. Simplified Method for Small Institutions
1. General
2. Simplified procedure
I. Reserved
J. General Provisions for Selected Items of Cost
1. Advertising and public relations costs
2. Advisory councils
3. Alcoholic beverages
4. Alumni/ae activities
5. Audit and related services
6. Bad debts
7. Bonding costs
8. Commencement and convocation costs
9. Communication costs
10. Compensation for personal services
11. Contingency provisions
12. Deans of faculty and graduate schools
13. Defense and prosecution of criminal and civil proceedings, claims, 
appeals and patent infringement
14. Depreciation and use allowances
15. Donations and contributions
16. Employee morale, health, and welfare costs
17. Entertainment costs
18. Equipment and other capital expenditures
19. Fines and penalties
20. Fund raising and investment costs
21. Gains and losses on depreciable assets
22. Goods or services for personal use
23. Housing and personal living expenses
24. Idle facilities and idle capacity
25. Insurance and indemnification
26. Interest
27. Labor relations costs
28. Lobbying
29. Losses on other sponsored agreements or contracts
30. Maintenance and repair costs
31. Material and supplies costs
32. Meetings and conferences
33. Memberships, subscriptions and professional activity costs
34. Patent costs
35. Plant and homeland security costs
36. Pre-agreement costs
37. Professional service costs
38. Proposal costs
39. Publication and printing costs
40. Rearrangement and alteration costs
41. Reconversion costs
42. Recruiting costs
43. Rental costs of buildings and equipment
44. Royalties and other costs for use of patents
45. Scholarships and student aid costs
46. Selling and marketing
47. Specialized service facilities
48. Student activity costs
49. Taxes
50. Termination costs applicable to sponsored agreements
51. Training costs
52. Transportation costs
53. Travel costs
54. Trustees
K. Certification of Charges
Exhibit A to Appendix A--List of Colleges and Universities Subject to 
          Section J.12.h of Appendix A
Exhibit B to Appendix A--Listing of Institutions That are Eligible for 
          the Utility Cost Adjustment
Exhibit C to Appendix A--Examples of ``major project'' Where Direct 
          Charging of Administrative or Clerical Staff Salaries May Be 
          Appropriate

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Attachment A to Appendix A--Cost Accounting Standards (CAS) for 
          Educational Institutions
Attachment B to Appendix A--CASB's Disclosure Statement (DS-2)
Attachment C to Appendix A--Documentation Requirements for Facilities 
          and Administrative (F&A) Rate Proposals

                          A. Purpose and Scope

    1. Objectives. This Appendix provides principles for determining the 
costs applicable to research and development, training, and other 
sponsored work performed by colleges and universities under grants, 
contracts, and other agreements with the Federal Government. These 
agreements are referred to as sponsored agreements.
    2. Policy guides. The successful application of these cost 
accounting principles requires development of mutual understanding 
between representatives of universities and of the Federal Government as 
to their scope, implementation, and interpretation. It is recognized 
that--
    a. The arrangements for Federal agency and institutional 
participation in the financing of a research, training, or other project 
are properly subject to negotiation between the agency and the 
institution concerned, in accordance with such governmentwide criteria 
or legal requirements as may be applicable.
    b. Each institution, possessing its own unique combination of staff, 
facilities, and experience, should be encouraged to conduct research and 
educational activities in a manner consonant with its own academic 
philosophies and institutional objectives.
    c. The dual role of students engaged in research and the resulting 
benefits to sponsored agreements are fundamental to the research effort 
and shall be recognized in the application of these principles.
    d. Each institution, in the fulfillment of its obligations, should 
employ sound management practices.
    e. The application of these cost accounting principles should 
require no significant changes in the generally accepted accounting 
practices of colleges and universities. However, the accounting 
practices of individual colleges and universities must support the 
accumulation of costs as required by the principles, and must provide 
for adequate documentation to support costs charged to sponsored 
agreements.
    f. Cognizant Federal agencies involved in negotiating facilities and 
administrative (F&A) cost rates and auditing should assure that 
institutions are generally applying these cost accounting principles on 
a consistent basis. Where wide variations exist in the treatment of a 
given cost item among institutions, the reasonableness and equitableness 
of such treatments should be fully considered during the rate 
negotiations and audit.
    3. Application. These principles shall be used in determining the 
allowable costs of work performed by colleges and universities under 
sponsored agreements. The principles shall also be used in determining 
the costs of work performed by such institutions under subgrants, cost-
reimbursement subcontracts, and other awards made to them under 
sponsored agreements. They also shall be used as a guide in the pricing 
of fixed-price contracts and subcontracts where costs are used in 
determining the appropriate price. The principles do not apply to:
    a. Arrangements under which Federal financing is in the form of 
loans, scholarships, fellowships, traineeships, or other fixed amounts 
based on such items as education allowance or published tuition rates 
and fees of an institution.
    b. Capitation awards.
    c. Other awards under which the institution is not required to 
account to the Federal Government for actual costs incurred.
    d. Conditional exemptions.
    (1) OMB authorizes conditional exemption from OMB administrative 
requirements and cost principles for certain Federal programs with 
statutorily-authorized consolidated planning and consolidated 
administrative funding, that are identified by a Federal agency and 
approved by the head of the Executive department or establishment. A 
Federal agency shall consult with OMB during its consideration of 
whether to grant such an exemption.
    (2) To promote efficiency in State and local program administration, 
when Federal non-entitlement programs with common purposes have specific 
statutorily-authorized consolidated planning and consolidated 
administrative funding and where most of the State agency's resources 
come from non-Federal sources, Federal agencies may exempt these covered 
State-administered, non-entitlement grant programs from certain OMB 
grants management requirements. The exemptions would be from all but the 
allocability of costs provisions of subsection C.3 of Appendix A to 2 
CFR part 225 Cost Principles for State, Local, and Indian Tribal 
Governments (OMB Circular A-87), Section C, subpart 4 to 2 CFR part 220 
Cost Principles for Educational Institutions (OMB Circular A-21), and 
subsection A.4 of Appendix A to 2 CFR part 230 Cost Principles for Non-
Profit Organizations,'' (OMB Circular A-122), and from all of the 
administrative requirements provisions of 2 CFR part 215, Uniform 
Administrative Requirements for Grants and Agreements with Institutions 
of Higher Education, Hospitals, and Other Non-Profit Organizations (OMB 
Circular A-110), and the agencies' grants management common rule (see 
Sec. 215.5 of this subtitle).

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    (3) When a Federal agency provides this flexibility, as a 
prerequisite to a State's exercising this option, a State must adopt its 
own written fiscal and administrative requirements for expending and 
accounting for all funds, which are consistent with the provisions of 2 
CFR part 225 (OMB Circular A-87), and extend such policies to all 
subrecipients. These fiscal and administrative requirements must be 
sufficiently specific to ensure that: Funds are used in compliance with 
all applicable Federal statutory and regulatory provisions, costs are 
reasonable and necessary for operating these programs, and funds are not 
to be used for general expenses required to carry out other 
responsibilities of a State or its subrecipients.
    4. Inquiries.
    All inquiries from Federal agencies concerning the cost principles 
contained in this Appendix to 2 CFR part 220, including the 
administration and implementation of the Cost Accounting Standards (CAS) 
(described in Sections C.10 through C.13) and disclosure statement (DS-
2) requirements, shall be addressed by the Office of Management and 
Budget (OMB), Office of Federal Financial Management, in coordination 
with the Cost Accounting Standard Board (CASB) with respect to inquiries 
concerning CAS. Educational institutions' inquiries should be addressed 
to the cognizant agency.

                         B. Definition of Terms

    1. Major functions of an institution refers to instruction, 
organized research, other sponsored activities and other institutional 
activities as defined below:
    a. Instruction means the teaching and training activities of an 
institution. Except for research training as provided in subsection b, 
this term includes all teaching and training activities, whether they 
are offered for credits toward a degree or certificate or on a non-
credit basis, and whether they are offered through regular academic 
departments or separate divisions, such as a summer school division or 
an extension division. Also considered part of this major function are 
departmental research, and, where agreed to, university research.
    (1) Sponsored instruction and training means specific instructional 
or training activity established by grant, contract, or cooperative 
agreement. For purposes of the cost principles, this activity may be 
considered a major function even though an institution's accounting 
treatment may include it in the instruction function.
    (2) Departmental research means research, development and scholarly 
activities that are not organized research and, consequently, are not 
separately budgeted and accounted for. Departmental research, for 
purposes of this document, is not considered as a major function, but as 
a part of the instruction function of the institution.
    b. Organized research means all research and development activities 
of an institution that are separately budgeted and accounted for. It 
includes:
    (1) Sponsored research means all research and development activities 
that are sponsored by Federal and non-Federal agencies and 
organizations. This term includes activities involving the training of 
individuals in research techniques (commonly called research training) 
where such activities utilize the same facilities as other research and 
development activities and where such activities are not included in the 
instruction function.
    (2) University research means all research and development 
activities that are separately budgeted and accounted for by the 
institution under an internal application of institutional funds. 
University research, for purposes of this document, shall be combined 
with sponsored research under the function of organized research.
    c. Other sponsored activities means programs and projects financed 
by Federal and non-Federal agencies and organizations which involve the 
performance of work other than instruction and organized research. 
Examples of such programs and projects are health service projects, and 
community service programs. However, when any of these activities are 
undertaken by the institution without outside support, they may be 
classified as other institutional activities.
    d. Other institutional activities means all activities of an 
institution except:
    (1) Instruction, departmental research, organized research, and 
other sponsored activities, as defined above;
    (2) F&A cost activities identified in Section F of this Appendix; 
and
    (3) Specialized service facilities described in Section J.47 of this 
Appendix. Other institutional activities include operation of residence 
halls, dining halls, hospitals and clinics, student unions, 
intercollegiate athletics, bookstores, faculty housing, student 
apartments, guest houses, chapels, theaters, public museums, and other 
similar auxiliary enterprises. This definition also includes any other 
categories of activities, costs of which are ``unallowable'' to 
sponsored agreements, unless otherwise indicated in the agreements.
    2. Sponsored agreement, for purposes of this Appendix, means any 
grant, contract, or other agreement between the institution and the 
Federal Government.
    3. Allocation means the process of assigning a cost, or a group of 
costs, to one or more cost objective, in reasonable and realistic 
proportion to the benefit provided or other equitable relationship. A 
cost objective may be a major function of the institution, a particular 
service or project, a sponsored agreement, or an F&A cost activity, as 
described in Section F of this Appendix. The process

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may entail assigning a cost(s) directly to a final cost objective or 
through one or more intermediate cost objectives.
    4. Facilities and administrative (F&A) costs, for the purpose of 
this Appendix, means costs that are incurred for common or joint 
objectives and, therefore, cannot be identified readily and specifically 
with a particular sponsored project, an instructional activity, or any 
other institutional activity. F&A costs are synonymous with ``indirect'' 
costs, as previously used in this Appendix and as currently used in 
attachments A and B to this Appendix. The F&A cost categories are 
described in Section F.1 of this Appendix.

                         C. Basic Considerations

    1. Composition of total costs. The cost of a sponsored agreement is 
comprised of the allowable direct costs incident to its performance, 
plus the allocable portion of the allowable F&A costs of the 
institution, less applicable credits as described in subsection C.5 of 
this Appendix.
    2. Factors affecting allowability of costs. The tests of 
allowability of costs under these principles are: they must be 
reasonable; they must be allocable to sponsored agreements under the 
principles and methods provided herein; they must be given consistent 
treatment through application of those generally accepted accounting 
principles appropriate to the circumstances; and they must conform to 
any limitations or exclusions set forth in these principles or in the 
sponsored agreement as to types or amounts of cost items.
    3. Reasonable costs. A cost may be considered reasonable if the 
nature of the goods or services acquired or applied, and the amount 
involved therefore, reflect the action that a prudent person would have 
taken under the circumstances prevailing at the time the decision to 
incur the cost was made. Major considerations involved in the 
determination of the reasonableness of a cost are: whether or not the 
cost is of a type generally recognized as necessary for the operation of 
the institution or the performance of the sponsored agreement; the 
restraints or requirements imposed by such factors as arm's-length 
bargaining, Federal and State laws and regulations, and sponsored 
agreement terms and conditions; whether or not the individuals concerned 
acted with due prudence in the circumstances, considering their 
responsibilities to the institution, its employees, its students, the 
Federal Government, and the public at large; and, the extent to which 
the actions taken with respect to the incurrence of the cost are 
consistent with established institutional policies and practices 
applicable to the work of the institution generally, including sponsored 
agreements.
    4. Allocable costs.
    a. A cost is allocable to a particular cost objective (i.e., a 
specific function, project, sponsored agreement, department, or the 
like) if the goods or services involved are chargeable or assignable to 
such cost objective in accordance with relative benefits received or 
other equitable relationship. Subject to the foregoing, a cost is 
allocable to a sponsored agreement if it is incurred solely to advance 
the work under the sponsored agreement; it benefits both the sponsored 
agreement and other work of the institution, in proportions that can be 
approximated through use of reasonable methods, or it is necessary to 
the overall operation of the institution and, in light of the principles 
provided in this Appendix, is deemed to be assignable in part to 
sponsored projects. Where the purchase of equipment or other capital 
items is specifically authorized under a sponsored agreement, the 
amounts thus authorized for such purchases are assignable to the 
sponsored agreement regardless of the use that may subsequently be made 
of the equipment or other capital items involved.
    b. Any costs allocable to a particular sponsored agreement under the 
standards provided in this Appendix may not be shifted to other 
sponsored agreements in order to meet deficiencies caused by overruns or 
other fund considerations, to avoid restrictions imposed by law or by 
terms of the sponsored agreement, or for other reasons of convenience.
    c. Any costs allocable to activities sponsored by industry, foreign 
governments or other sponsors may not be shifted to federally-sponsored 
agreements.
    d. Allocation and documentation standard.
    (1) Cost principles. The recipient institution is responsible for 
ensuring that costs charged to a sponsored agreement are allowable, 
allocable, and reasonable under these cost principles.
    (2) Internal controls. The institution's financial management system 
shall ensure that no one person has complete control over all aspects of 
a financial transaction.
    (3) Direct cost allocation principles. If a cost benefits two or 
more projects or activities in proportions that can be determined 
without undue effort or cost, the cost should be allocated to the 
projects based on the proportional benefit. If a cost benefits two or 
more projects or activities in proportions that cannot be determined 
because of the interrelationship of the work involved, then, 
notwithstanding subsection b, the costs may be allocated or transferred 
to benefited projects on any reasonable basis, consistent with 
subsections C.4.d. (1) and (2) of this Appendix.
    (4) Documentation. Federal requirements for documentation are 
specified in this Appendix, 2 CFR Part 215, ``Uniform Administrative 
Requirements for Grants and Agreements with Institutions of Higher 
Education, Hospitals, and Other Non-Profit Organizations,'' and specific 
agency policies on cost transfers. If the institution authorizes the

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principal investigator or other individual to have primary 
responsibility, given the requirements of subsection C.4.d. (2) of this 
Appendix, for the management of sponsored agreement funds, then the 
institution's documentation requirements for the actions of those 
individuals (e.g., signature or initials of the principal investigator 
or designee or use of a password) will normally be considered 
sufficient.
    5. Applicable credits.
    a. The term ``applicable credits'' refers to those receipts or 
negative expenditures that operate to offset or reduce direct or F&A 
cost items. Typical examples of such transactions are: purchase 
discounts, rebates, or allowances; recoveries or indemnities on losses; 
and adjustments of overpayments or erroneous charges. This term also 
includes ``educational discounts'' on products or services provided 
specifically to educational institutions, such as discounts on computer 
equipment, except where the arrangement is clearly and explicitly 
identified as a gift by the vendor.
    b. In some instances, the amounts received from the Federal 
Government to finance institutional activities or service operations 
should be treated as applicable credits. Specifically, the concept of 
netting such credit items against related expenditures should be applied 
by the institution in determining the rates or amounts to be charged to 
sponsored agreements for services rendered whenever the facilities or 
other resources used in providing such services have been financed 
directly, in whole or in part, by Federal funds. (See Sections F.10, 
J.14, and J.47 of this Appendix for areas of potential application in 
the matter of direct Federal financing.)
    6. Costs incurred by State and local governments. Costs incurred or 
paid by State or local governments on behalf of their colleges and 
universities for fringe benefit programs, such as pension costs and FICA 
and any other costs specifically incurred on behalf of, and in direct 
benefit to, the institutions, are allowable costs of such institutions 
whether or not these costs are recorded in the accounting records of the 
institutions, subject to the following:
    a. The costs meet the requirements of subsections C.1 through 5 of 
this Appendix.
    b. The costs are properly supported by cost allocation plans in 
accordance with applicable Federal cost accounting principles.
    c. The costs are not otherwise borne directly or indirectly by the 
Federal Government.
    7. Limitations on allowance of costs. Sponsored agreements may be 
subject to statutory requirements that limit the allowance of costs. 
When the maximum amount allowable under a limitation is less than the 
total amount determined in accordance with the principles in this 
Appendix, the amount not recoverable under a sponsored agreement may not 
be charged to other sponsored agreements.
    8. Collection of unallowable costs, excess costs due to 
noncompliance with cost policies, increased costs due to failure to 
follow a disclosed accounting practice and increased costs resulting 
from a change in cost accounting practice. The following costs shall be 
refunded (including interest) in accordance with applicable Federal 
agency regulations:
    a. Costs specifically identified as unallowable in Section J of this 
Appendix, either directly or indirectly, and charged to the Federal 
Government.
    b. Excess costs due to failure by the educational institution to 
comply with the cost policies in this Appendix.
    c. Increased costs due to a noncompliant cost accounting practice 
used to estimate, accumulate, or report costs.
    d. Increased costs resulting from a change in accounting practice.
    9. Adjustment of previously negotiated F&A cost rates containing 
unallowable costs. Negotiated F&A cost rates based on a proposal later 
found to have included costs that are unallowable as specified by law or 
regulation, Section J of this Appendix, terms and conditions of 
sponsored agreements, or, are unallowable because they are clearly not 
allocable to sponsored agreements, shall be adjusted, or a refund shall 
be made, in accordance with the requirements of this section. These 
adjustments or refunds are designed to correct the proposals used to 
establish the rates and do not constitute a reopening of the rate 
negotiation. The adjustments or refunds will be made regardless of the 
type of rate negotiated (predetermined, final, fixed, or provisional).
    a. For rates covering a future fiscal year of the institution, the 
unallowable costs will be removed from the F&A cost pools and the rates 
appropriately adjusted.
    b. For rates covering a past period, the Federal share of the 
unallowable costs will be computed for each year involved and a cash 
refund (including interest chargeable in accordance with applicable 
regulations) will be made to the Federal Government. If cash refunds are 
made for past periods covered by provisional or fixed rates, appropriate 
adjustments will be made when the rates are finalized to avoid duplicate 
recovery of the unallowable costs by the Federal Government.
    c. For rates covering the current period, either a rate adjustment 
or a refund, as described in subsections a and b, shall be required by 
the cognizant agency. The choice of method shall be at the discretion of 
the cognizant agency, based on its judgment as to which method would be 
most practical.
    d. The amount or proportion of unallowable costs included in each 
year's rate will be assumed to be the same as the amount or proportion 
of unallowable costs included in

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the base year proposal used to establish the rate.
    10. Consistency in estimating, accumulating and reporting costs.
    a. An educational institution's practices used in estimating costs 
in pricing a proposal shall be consistent with the educational 
institution's cost accounting practices used in accumulating and 
reporting costs.
    b. An educational institution's cost accounting practices used in 
accumulating and reporting actual costs for a sponsored agreement shall 
be consistent with the educational institution's practices used in 
estimating costs in pricing the related proposal or application.
    c. The grouping of homogeneous costs in estimates prepared for 
proposal purposes shall not per se be deemed an inconsistent application 
of cost accounting practices under subsection a when such costs are 
accumulated and reported in greater detail on an actual cost basis 
during performance of the sponsored agreement.
    d. Attachment A to this Appendix also reflects this requirement, 
along with the purpose, definitions, and techniques for application, all 
of which are authoritative.
    11. Consistency in allocating costs incurred for the same purpose.
    a. All costs incurred for the same purpose, in like circumstances, 
are either direct costs only or F&A costs only with respect to final 
cost objectives. No final cost objective shall have allocated to it as a 
cost any cost, if other costs incurred for the same purpose, in like 
circumstances, have been included as a direct cost of that or any other 
final cost objective. Further, no final cost objective shall have 
allocated to it as a direct cost any cost, if other costs incurred for 
the same purpose, in like circumstances, have been included in any F&A 
cost pool to be allocated to that or any other final cost objective.
    b. Attachment A to this Appendix reflects this requirement along 
with its purpose, definitions, and techniques for application, 
illustrations and interpretations, all of which are authoritative.
    12. Accounting for unallowable costs.
    a. Costs expressly unallowable or mutually agreed to be unallowable, 
including costs mutually agreed to be unallowable directly associated 
costs, shall be identified and excluded from any billing, claim, 
application, or proposal applicable to a sponsored agreement.
    b. Costs which specifically become designated as unallowable as a 
result of a written decision furnished by a Federal official pursuant to 
sponsored agreement disputes procedures shall be identified if included 
in or used in the computation of any billing, claim, or proposal 
applicable to a sponsored agreement. This identification requirement 
applies also to any costs incurred for the same purpose under like 
circumstances as the costs specifically identified as unallowable under 
either this subsection or subsection a.
    c. Costs which, in a Federal official's written decision furnished 
pursuant to sponsored agreement disputes procedures, are designated as 
unallowable directly associated costs of unallowable costs covered by 
either subsection a or b shall be accorded the identification required 
by subsection b.
    d. The costs of any work project not contractually authorized by a 
sponsored agreement, whether or not related to performance of a proposed 
or existing sponsored agreement, shall be accounted for, to the extent 
appropriate, in a manner which permits ready separation from the costs 
of authorized work projects.
    e. All unallowable costs covered by subsections a through d shall be 
subject to the same cost accounting principles governing cost 
allocability as allowable costs. In circumstances where these 
unallowable costs normally would be part of a regular F&A cost 
allocation base or bases, they shall remain in such base or bases. Where 
a directly associated cost is part of a category of costs normally 
included in a F&A cost pool that shall be allocated over a base 
containing the unallowable cost with which it is associated, such a 
directly associated cost shall be retained in the F&A cost pool and be 
allocated through the regular allocation process.
    f. Where the total of the allocable and otherwise allowable costs 
exceeds a limitation-of-cost or ceiling-price provision in a sponsored 
agreement, full direct and F&A cost allocation shall be made to the 
sponsored agreement cost objective, in accordance with established cost 
accounting practices and standards which regularly govern a given 
entity's allocations to sponsored agreement cost objectives. In any 
determination of a cost overrun, the amount thereof shall be identified 
in terms of the excess of allowable costs over the ceiling amount, 
rather than through specific identification of particular cost items or 
cost elements.
    g. Attachment A reflects this requirement, along with its purpose, 
definitions, techniques for application, and illustrations of this 
standard, all of which are authoritative.
    13. Cost accounting period.
    a. Educational institutions shall use their fiscal year as their 
cost accounting period, except that:
    (1) Costs of a F&A function which exists for only a part of a cost 
accounting period may be allocated to cost objectives of that same part 
of the period on the basis of data for that part of the cost accounting 
period if the cost is material in amount, accumulated in a separate F&A 
cost pool or expense pool, and allocated on the basis of an appropriate 
direct measure of the activity or output of the function during that 
part of the period.

[[Page 114]]

    (2) An annual period other than the fiscal year may, upon mutual 
agreement with the Federal Government, be used as the cost accounting 
period if the use of such period is an established practice of the 
educational institution and is consistently used for managing and 
controlling revenues and disbursements, and appropriate accruals, 
deferrals or other adjustments are made with respect to such annual 
periods.
    (3) A transitional cost accounting period other than a year shall be 
used whenever a change of fiscal year occurs.
    b. An educational institution shall follow consistent practices in 
the selection of the cost accounting period or periods in which any 
types of expense and any types of adjustment to expense (including 
prior-period adjustments) are accumulated and allocated.
    c. The same cost accounting period shall be used for accumulating 
costs in a F&A cost pool as for establishing its allocation base, except 
that the Federal Government and educational institution may agree to use 
a different period for establishing an allocation base, provided:
    (1) The practice is necessary to obtain significant administrative 
convenience,
    (2) The practice is consistently followed by the educational 
institution,
    (3) The annual period used is representative of the activity of the 
cost accounting period for which the F&A costs to be allocated are 
accumulated, and
    (4) The practice can reasonably be estimated to provide a 
distribution to cost objectives of the cost accounting period not 
materially different from that which otherwise would be obtained.
    d. Attachment A reflects this requirement, along with its purpose, 
definitions, techniques for application and illustrations, all of which 
are authoritative.
    14. Disclosure Statement.
    a. Educational institutions that received aggregate sponsored 
agreements totaling $25 million or more subject to this Appendix during 
their most recently completed fiscal year shall disclose their cost 
accounting practices by filing a Disclosure Statement (DS-2), which is 
reproduced in Attachment B to this Appendix. With the approval of the 
cognizant agency, an educational institution may meet the DS-2 
submission by submitting the DS-2 for each business unit that received 
$25 million or more in sponsored agreements.
    b. The DS-2 shall be submitted to the cognizant agency with a copy 
to the educational institution's audit cognizant office.
    c. Educational institutions receiving $25 million or more in 
sponsored agreements that are not required to file a DS-2 pursuant to 48 
CFR 9903.202-1 shall file a DS-2 covering the first fiscal year 
beginning after the publication date of this revision, within six months 
after the end of that fiscal year. Extensions beyond the above due date 
may be granted by the cognizant agency on a case-by-case basis.
    d. Educational institutions are responsible for maintaining an 
accurate DS-2 and complying with disclosed cost accounting practices. 
Educational institutions must file amendments to the DS-2 when disclosed 
practices are changed to comply with a new or modified standard, or when 
practices are changed for other reasons. Amendments of a DS-2 may be 
submitted at any time. If the change is expected to have a material 
impact on the educational institution's negotiated F&A cost rates, the 
revision shall be approved by the cognizant agency before it is 
implemented. Resubmission of a complete, updated DS-2 is discouraged 
except when there are extensive changes to disclosed practices.
    e. Cost and funding adjustments. Cost adjustments shall be made by 
the cognizant agency if an educational institution fails to comply with 
the cost policies in this Appendix or fails to consistently follow its 
established or disclosed cost accounting practices when estimating, 
accumulating or reporting the costs of sponsored agreements, if 
aggregate cost impact on sponsored agreements is material. The cost 
adjustment shall normally be made on an aggregate basis for all affected 
sponsored agreements through an adjustment of the educational 
institution's future F&A costs rates or other means considered 
appropriate by the cognizant agency. Under the terms of CAS-covered 
contracts, adjustments in the amount of funding provided may also be 
required when the estimated proposal costs were not determined in 
accordance with established cost accounting practices.
    f. Overpayments. Excess amounts paid in the aggregate by the Federal 
Government under sponsored agreements due to a noncompliant cost 
accounting practice used to estimate, accumulate, or report costs shall 
be credited or refunded, as deemed appropriate by the cognizant agency. 
Interest applicable to the excess amounts paid in the aggregate during 
the period of noncompliance shall also be determined and collected in 
accordance with applicable Federal agency regulations.
    g. Compliant cost accounting practice changes. Changes from one 
compliant cost accounting practice to another compliant practice that 
are approved by the cognizant agency may require cost adjustments if the 
change has a material effect on sponsored agreements and the changes are 
deemed appropriate by the cognizant agency.
    h. Responsibilities. The cognizant agency shall:
    (1) Determine cost adjustments for all sponsored agreements in the 
aggregate on behalf of the Federal Government. Actions of the cognizant 
agency official in making cost

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adjustment determinations shall be coordinated with all affected Federal 
agencies to the extent necessary.
    (2) Prescribe guidelines and establish internal procedures to 
promptly determine on behalf of the Federal Government that a DS-2 
adequately discloses the educational institution's cost accounting 
practices and that the disclosed practices are compliant with applicable 
CAS and the requirements of Attachment A to this Appendix.
    (3) Distribute to all affected agencies any DS-2 determination of 
adequacy and/or noncompliance.

                             D. Direct Costs

    1. General. Direct costs are those costs that can be identified 
specifically with a particular sponsored project, an instructional 
activity, or any other institutional activity, or that can be directly 
assigned to such activities relatively easily with a high degree of 
accuracy. Costs incurred for the same purpose in like circumstances must 
be treated consistently as either direct or F&A costs. Where an 
institution treats a particular type of cost as a direct cost of 
sponsored agreements, all costs incurred for the same purpose in like 
circumstances shall be treated as direct costs of all activities of the 
institution.
    2. Application to sponsored agreements. Identification with the 
sponsored work rather than the nature of the goods and services involved 
is the determining factor in distinguishing direct from F&A costs of 
sponsored agreements. Typical costs charged directly to a sponsored 
agreement are the compensation of employees for performance of work 
under the sponsored agreement, including related fringe benefit costs to 
the extent they are consistently treated, in like circumstances, by the 
institution as direct rather than F&A costs; the costs of materials 
consumed or expended in the performance of the work; and other items of 
expense incurred for the sponsored agreement, including extraordinary 
utility consumption. The cost of materials supplied from stock or 
services rendered by specialized facilities or other institutional 
service operations may be included as direct costs of sponsored 
agreements, provided such items are consistently treated, in like 
circumstances, by the institution as direct rather than F&A costs, and 
are charged under a recognized method of computing actual costs, and 
conform to generally accepted cost accounting practices consistently 
followed by the institution.

                              E. F&A Costs

    1. General. F&A costs are those that are incurred for common or 
joint objectives and therefore cannot be identified readily and 
specifically with a particular sponsored project, an instructional 
activity, or any other institutional activity. See Section F.1 of this 
Appendix for a discussion of the components of F&A costs.
    2. Criteria for distribution.
    a. Base period. A base period for distribution of F&A costs is the 
period during which the costs are incurred. The base period normally 
should coincide with the fiscal year established by the institution, but 
in any event the base period should be so selected as to avoid 
inequities in the distribution of costs.
    b. Need for cost groupings. The overall objective of the F&A cost 
allocation process is to distribute the F&A costs described in Section F 
of this Appendix to the major functions of the institution in 
proportions reasonably consistent with the nature and extent of their 
use of the institution's resources. In order to achieve this objective, 
it may be necessary to provide for selective distribution by 
establishing separate groupings of cost within one or more of the F&A 
cost categories referred to in subsection E.1 of this Appendix. In 
general, the cost groupings established within a category should 
constitute, in each case, a pool of those items of expense that are 
considered to be of like nature in terms of their relative contribution 
to (or degree of remoteness from) the particular cost objectives to 
which distribution is appropriate. Cost groupings should be established 
considering the general guides provided in subsection E.2.c. of this 
Appendix. Each such pool or cost grouping should then be distributed 
individually to the related cost objectives, using the distribution base 
or method most appropriate in the light of the guides set forth in 
subsection E.2.d. of this Appendix.
    c. General considerations on cost groupings. The extent to which 
separate cost groupings and selective distribution would be appropriate 
at an institution is a matter of judgment to be determined on a case-by-
case basis. Typical situations which may warrant the establishment of 
two or more separate cost groupings (based on account classification or 
analysis) within an F&A cost category include but are not limited to the 
following:
    (1) Where certain items or categories of expense relate solely to 
one of the major functions of the institution or to less than all 
functions, such expenses should be set aside as a separate cost grouping 
for direct assignment or selective allocation in accordance with the 
guides provided in subsections b and d.
    (2) Where any types of expense ordinarily treated as general 
administration or departmental administration are charged to sponsored 
agreements as direct costs, expenses applicable to other activities of 
the institution when incurred for the same purposes in like 
circumstances must, through separate cost groupings, be excluded from 
the F&A

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costs allocable to those sponsored agreements and included in the direct 
cost of other activities for cost allocation purposes.
    (3) Where it is determined that certain expenses are for the support 
of a service unit or facility whose output is susceptible of measurement 
on a workload or other quantitative basis, such expenses should be set 
aside as a separate cost grouping for distribution on such basis to 
organized research, instructional, and other activities at the 
institution or within the department.
    (4) Where activities provide their own purchasing, personnel 
administration, building maintenance or similar service, the 
distribution of general administration and general expenses, or 
operation and maintenance expenses to such activities should be 
accomplished through cost groupings which include only that portion of 
central F&A costs (such as for overall management) which are properly 
allocable to such activities.
    (5) Where the institution elects to treat fringe benefits as F&A 
charges, such costs should be set aside as a separate cost grouping for 
selective distribution to related cost objectives.
    (6) The number of separate cost groupings within a category should 
be held within practical limits, after taking into consideration the 
materiality of the amounts involved and the degree of precision 
attainable through less selective methods of distribution.
    d. Selection of distribution method.
    (1) Actual conditions must be taken into account in selecting the 
method or base to be used in distributing individual cost groupings. The 
essential consideration in selecting a base is that it be the one best 
suited for assigning the pool of costs to cost objectives in accordance 
with benefits derived; a traceable cause and effect relationship; or 
logic and reason, where neither benefit nor cause and effect 
relationship is determinable.
    (2) Where a cost grouping can be identified directly with the cost 
objective benefited, it should be assigned to that cost objective.
    (3) Where the expenses in a cost grouping are more general in 
nature, the distribution may be based on a cost analysis study which 
results in an equitable distribution of the costs. Such cost analysis 
studies may take into consideration weighting factors, population, or 
space occupied if appropriate. Cost analysis studies, however, must be 
appropriately documented in sufficient detail for subsequent review by 
the cognizant Federal agency, distribute the costs to the related cost 
objectives in accordance with the relative benefits derived, be 
statistically sound, be performed specifically at the institution at 
which the results are to be used, and be reviewed periodically, but not 
less frequently than every two years, updated if necessary, and used 
consistently. Any assumptions made in the study must be stated and 
explained. The use of cost analysis studies and periodic changes in the 
method of cost distribution must be fully justified.
    (4) If a cost analysis study is not performed, or if the study does 
not result in an equitable distribution of the costs, the distribution 
shall be made in accordance with the appropriate base cited in Section 
F, unless one of the following conditions is met: it can be demonstrated 
that the use of a different base would result in a more equitable 
allocation of the costs, or that a more readily available base would not 
increase the costs charged to sponsored agreements, or the institution 
qualifies for, and elects to use, the simplified method for computing 
F&A cost rates described in Section H of this Appendix.
    (5) Notwithstanding subsection E.2.d.(3) of this Appendix, effective 
July 1, 1998, a cost analysis or base other than that in Section F of 
this Appendix shall not be used to distribute utility or student 
services costs. Instead, subsections F.4.c and F.4.d may be used in the 
recovery of utility costs.
    e. Order of distribution.
    (1) F&A costs are the broad categories of costs discussed in Section 
F.1 of this Appendix.
    (2) Depreciation and use allowances, operation and maintenance 
expenses, and general administrative and general expenses should be 
allocated in that order to the remaining F&A cost categories as well as 
to the major functions and specialized service facilities of the 
institution. Other cost categories may be allocated in the order 
determined to be most appropriate by the institutions. When cross 
allocation of costs is made as provided in subsection (3), this order of 
allocation does not apply.
    (3) Normally an F&A cost category will be considered closed once it 
has been allocated to other cost objectives, and costs may not be 
subsequently allocated to it. However, a cross allocation of costs 
between two or more F&A cost categories may be used if such allocation 
will result in a more equitable allocation of costs. If a cross 
allocation is used, an appropriate modification to the composition of 
the F&A cost categories described in Section F of this Appendix is 
required.

              F. Identification and Assignment of F&A Costs

    1. Definition of Facilities and Administration. F&A costs are broad 
categories of costs. ``Facilities'' is defined as depreciation and use 
allowances, interest on debt associated with certain buildings, 
equipment and capital improvements, operation and maintenance expenses, 
and library expenses. ``Administration'' is defined as general 
administration and general expenses, departmental

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administration, sponsored projects administration, student 
administration and services, and all other types of expenditures not 
listed specifically under one of the subcategories of Facilities 
(including cross allocations from other pools).
    2. Depreciation and use allowances.
    a. The expenses under this heading are the portion of the costs of 
the institution's buildings, capital improvements to land and buildings, 
and equipment which are computed in accordance with Section J.14 of this 
Appendix.
    b. In the absence of the alternatives provided for in Section E.2.d 
of this Appendix, the expenses included in this category shall be 
allocated in the following manner:
    (1) Depreciation or use allowances on buildings used exclusively in 
the conduct of a single function, and on capital improvements and 
equipment used in such buildings, shall be assigned to that function.
    (2) Depreciation or use allowances on buildings used for more than 
one function, and on capital improvements and equipment used in such 
buildings, shall be allocated to the individual functions performed in 
each building on the basis of usable square feet of space, excluding 
common areas such as hallways, stairwells, and rest rooms.
    (3) Depreciation or use allowances on buildings, capital 
improvements and equipment related to space (e.g., individual rooms, 
laboratories) used jointly by more than one function (as determined by 
the users of the space) shall be treated as follows. The cost of each 
jointly used unit of space shall be allocated to benefiting functions on 
the basis of:
    (a) The employee full-time equivalents (FTEs) or salaries and wages 
of those individual functions benefiting from the use of that space; or
    (b) Institution-wide employee FTEs or salaries and wages applicable 
to the benefiting major functions (see Section B.1 of this Appendix) of 
the institution.
    (4) Depreciation or use allowances on certain capital improvements 
to land, such as paved parking areas, fences, sidewalks, and the like, 
not included in the cost of buildings, shall be allocated to user 
categories of students and employees on a full-time equivalent basis. 
The amount allocated to the student category shall be assigned to the 
instruction function of the institution. The amount allocated to the 
employee category shall be further allocated to the major functions of 
the institution in proportion to the salaries and wages of all employees 
applicable to those functions.
    c. Large research facilities. The following provisions apply to 
large research facilities that are included in F&A rate proposals 
negotiated after January 1, 2000, and on which the design and 
construction begin after July 1, 1998. Large facilities, for this 
provision, are defined as buildings with construction costs of more than 
$10 million. The determination of the Federal participation (use) 
percentage in a building is based on institution's estimates of building 
use over its life, and is made during the planning phase for the 
building.
    (1) When an institution has large research facilities, of which 40 
percent or more of total assignable space is expected for Federal use, 
the institution must maintain an adequate review and approval process to 
ensure that construction costs are reasonable.
    (a)The review process shall address and document relevant factors 
affecting construction costs, such as:

i. Life cycle costs
ii. Unique research needs
iii. Special building needs
iv. Building site preparation
v. Environmental consideration
vi. Federal construction code requirements
vii. Competitive procurement practices

    (b) The approval process shall include review and approval of the 
projects by the institution's Board of Trustees (which can also be 
called Board of Directors, Governors or Regents) or other independent 
entities.
    (2) For research facilities costing more than $25 million, of which 
50 percent or more of total assignable space is expected for Federal 
use, the institution must document the review steps performed to assure 
that construction costs are reasonable. The review should include an 
analysis of construction costs and a comparison of these costs with 
relevant construction data, including the National Science Foundation 
data for research facilities based on its biennial survey, ``Science and 
Engineering Facilities at Colleges and Universities.'' The documentation 
must be made available for review by Federal negotiators, when 
requested.
    3. Interest. Interest on debt associated with certain buildings, 
equipment and capital improvements, as defined in Section J.25 of this 
Appendix, shall be classified as an expenditure under the category 
Facilities. These costs shall be allocated in the same manner as the 
depreciation or use allowances on the buildings, equipment and capital 
improvements to which the interest relates.
    4. Operation and maintenance expenses.
    a. The expenses under this heading are those that have been incurred 
for the administration, supervision, operation, maintenance, 
preservation, and protection of the institution's physical plant. They 
include expenses normally incurred for such items as janitorial and 
utility services; repairs and ordinary or normal alterations of 
buildings, furniture and equipment; care of grounds; maintenance and 
operation of buildings and other plant facilities; security; earthquake 
and disaster preparedness; environmental safety; hazardous waste 
disposal; property,

[[Page 118]]

liability and all other insurance relating to property; space and 
capital leasing; facility planning and management; and, central 
receiving. The operation and maintenance expense category should also 
include its allocable share of fringe benefit costs, depreciation and 
use allowances, and interest costs.
    b. In the absence of the alternatives provided for in Section E.2.d 
of this Appendix, the expenses included in this category shall be 
allocated in the same manner as described in subsection E.2.b for 
depreciation and use allowances.
    c. For F&A rates negotiated on or after July 1, 1998, an institution 
that previously employed a utility special cost study in its most 
recently negotiated F&A rate proposal in accordance with Section E.2.d 
of this Appendix, may add a utility cost adjustment (UCA) of 1.3 
percentage points to its negotiated overall F&A rate for organized 
research. Exhibit B to this Appendix displays the list of eligible 
institutions. The allocation of utility costs to the benefiting 
functions shall otherwise be made in the same manner as described in 
subsection F.4.b of this Appendix. Beginning on July 1, 2002, Federal 
agencies shall reassess periodically the eligibility of institutions to 
receive the UCA.
    d. Beginning on July 1, 2002, Federal agencies may receive 
applications for utilization of the UCA from institutions not subject to 
the provisions of subsection F.4.c of this Appendix.
    5. General administration and general expenses.
    a. The expenses under this heading are those that have been incurred 
for the general executive and administrative offices of educational 
institutions and other expense of a general character which do not 
relate solely to any major function of the institution; i.e., solely to 
instruction, organized research, other sponsored activities, or other 
institutional activities. The general administration and general expense 
category should also include its allocable share of fringe benefit 
costs, operation and maintenance expense, depreciation and use 
allowances, and interest costs. Examples of general administration and 
general expenses include: those expenses incurred by administrative 
offices that serve the entire university system of which the institution 
is a part; central offices of the institution such as the President's or 
Chancellor's office, the offices for institution-wide financial 
management, business services, budget and planning, personnel 
management, and safety and risk management; the office of the General 
Counsel; and, the operations of the central administrative management 
information systems. General administration and general expenses shall 
not include expenses incurred within non-university-wide deans' offices, 
academic departments, organized research units, or similar 
organizational units. (See subsection F.6. of this Appendix, 
Departmental administration expenses.)
    b. In the absence of the alternatives provided for in Section E.2.d 
of this Appendix, the expenses included in this category shall be 
grouped first according to common major functions of the institution to 
which they render services or provide benefits. The aggregate expenses 
of each group shall then be allocated to serviced or benefited functions 
on the modified total cost basis. Modified total costs consist of the 
same elements as those in Section G.2 of this Appendix. When an activity 
included in this F&A cost category provides a service or product to 
another institution or organization, an appropriate adjustment must be 
made to either the expenses or the basis of allocation or both, to 
assure a proper allocation of costs.
    6. Departmental administration expenses.
    a. The expenses under this heading are those that have been incurred 
for administrative and supporting services that benefit common or joint 
departmental activities or objectives in academic deans' offices, 
academic departments and divisions, and organized research units. 
Organized research units include such units as institutes, study 
centers, and research centers. Departmental administration expenses are 
subject to the following limitations.
    (1) Academic deans' offices. Salaries and operating expenses are 
limited to those attributable to administrative functions.
    (2) Academic departments:
    (a) Salaries and fringe benefits attributable to the administrative 
work (including bid and proposal preparation) of faculty (including 
department heads), and other professional personnel conducting research 
and/or instruction, shall be allowed at a rate of 3.6 percent of 
modified total direct costs. This category does not include professional 
business or professional administrative officers. This allowance shall 
be added to the computation of the F&A cost rate for major functions in 
Section G of this Appendix; the expenses covered by the allowance shall 
be excluded from the departmental administration cost pool. No 
documentation is required to support this allowance.
    (b) Other administrative and supporting expenses incurred within 
academic departments are allowable provided they are treated 
consistently in like circumstances. This would include expenses such as 
the salaries of secretarial and clerical staffs, the salaries of 
administrative officers and assistants, travel, office supplies, 
stockrooms, and the like.
    (3) Other fringe benefit costs applicable to the salaries and wages 
included in subsections F.6.a.(1) and (2) of this Appendix are 
allowable, as well as an appropriate share of general administration and 
general expenses,

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operation and maintenance expenses, and depreciation and/or use 
allowances.
    (4) Federal agencies may authorize reimbursement of additional costs 
for department heads and faculty only in exceptional cases where an 
institution can demonstrate undue hardship or detriment to project 
performance.
    b. The following guidelines apply to the determination of 
departmental administrative costs as direct or F&A costs.
    (1) In developing the departmental administration cost pool, special 
care should be exercised to ensure that costs incurred for the same 
purpose in like circumstances are treated consistently as either direct 
or F&A costs. For example, salaries of technical staff, laboratory 
supplies (e.g., chemicals), telephone toll charges, animals, animal care 
costs, computer costs, travel costs, and specialized shop costs shall be 
treated as direct cost wherever identifiable to a particular cost 
objective. Direct charging of these costs may be accomplished through 
specific identification of individual costs to benefiting cost 
objectives, or through recharge centers or specialized service 
facilities, as appropriate under the circumstances.
    (2) The salaries of administrative and clerical staff should 
normally be treated as F&A costs. Direct charging of these costs may be 
appropriate where a major project or activity explicitly budgets for 
administrative or clerical services and individuals involved can be 
specifically identified with the project or activity. ``Major project'' 
is defined as a project that requires an extensive amount of 
administrative or clerical support, which is significantly greater than 
the routine level of such services provided by academic departments. 
Some examples of major projects are described in Exhibit C to this 
Appendix.
    (3) Items such as office supplies, postage, local telephone costs, 
and memberships shall normally be treated as F&A costs.
    c. In the absence of the alternatives provided for in Section E.2.d 
of this Appendix, the expenses included in this category shall be 
allocated as follows:
    (1) The administrative expenses of the dean's office of each college 
and school shall be allocated to the academic departments within that 
college or school on the modified total cost basis.
    (2) The administrative expenses of each academic department, and the 
department's share of the expenses allocated in subsection F.6.b.(1) of 
this Appendix shall be allocated to the appropriate functions of the 
department on the modified total cost basis.
    7. Sponsored projects administration.
    a. The expenses under this heading are limited to those incurred by 
a separate organization(s) established primarily to administer sponsored 
projects, including such functions as grant and contract administration 
(Federal and non-Federal), special security, purchasing, personnel, 
administration, and editing and publishing of research and other 
reports. They include the salaries and expenses of the head of such 
organization, assistants, and immediate staff, together with the 
salaries and expenses of personnel engaged in supporting activities 
maintained by the organization, such as stock rooms, stenographic pools 
and the like. This category also includes an allocable share of fringe 
benefit costs, general administration and general expenses, operation 
and maintenance expenses, depreciation/use allowances. Appropriate 
adjustments will be made for services provided to other functions or 
organizations.
    b. In the absence of the alternatives provided for in Section E.2.d 
of this Appendix, the expenses included in this category shall be 
allocated to the major functions of the institution under which the 
sponsored projects are conducted on the basis of the modified total cost 
of sponsored projects.
    c. An appropriate adjustment shall be made to eliminate any 
duplicate charges to sponsored agreements when this category includes 
similar or identical activities as those included in the general 
administration and general expense category or other F&A cost items, 
such as accounting, procurement, or personnel administration.
    8. Library expenses.
    a. The expenses under this heading are those that have been incurred 
for the operation of the library, including the cost of books and 
library materials purchased for the library, less any items of library 
income that qualify as applicable credits under Section C.5 of this 
Appendix. The library expense category should also include the fringe 
benefits applicable to the salaries and wages included therein, an 
appropriate share of general administration and general expense, 
operation and maintenance expense, and depreciation and use allowances. 
Costs incurred in the purchases of rare books (museum-type books) with 
no value to sponsored agreements should not be allocated to them.
    b. In the absence of the alternatives provided for in Section E.2.d 
of this Appendix, the expenses included in this category shall be 
allocated first on the basis of primary categories of users, including 
students, professional employees, and other users.
    (1) The student category shall consist of full-time equivalent 
students enrolled at the institution, regardless of whether they earn 
credits toward a degree or certificate.
    (2) The professional employee category shall consist of all faculty 
members and other professional employees of the institution, on a full-
time equivalent basis.
    (3) The other users category shall consist of all other users of 
library facilities.
    c. Amount allocated in subsection E.8.b of this Appendix shall be 
assigned further as follows:

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    (1) The amount in the student category shall be assigned to the 
instruction function of the institution.
    (2) The amount in the professional employee category shall be 
assigned to the major functions of the institution in proportion to the 
salaries and wages of all faculty members and other professional 
employees applicable to those functions.
    (3) The amount in the other users category shall be assigned to the 
other institutional activities function of the institution.
    9. Student administration and services.
    a. The expenses under this heading are those that have been incurred 
for the administration of student affairs and for services to students, 
including expenses of such activities as deans of students, admissions, 
registrar, counseling and placement services, student advisers, student 
health and infirmary services, catalogs, and commencements and 
convocations. The salaries of members of the academic staff whose 
responsibilities to the institution require administrative work that 
benefits sponsored projects may also be included to the extent that the 
portion charged to student administration is determined in accordance 
with Section J.10 of this Appendix. This expense category also includes 
the fringe benefit costs applicable to the salaries and wages included 
therein, an appropriate share of general administration and general 
expenses, operation and maintenance, and use allowances and/or 
depreciation.
    b. In the absence of the alternatives provided for in Section E.2.d 
of this Appendix, the expenses in this category shall be allocated to 
the instruction function, and subsequently to sponsored agreements in 
that function.
    10. Offset for F&A expenses otherwise provided for by the Federal 
Government.
    a. The items to be accumulated under this heading are the 
reimbursements and other payments from the Federal Government that are 
made to the institution to support solely, specifically, and directly, 
in whole or in part, any of the administrative or service activities 
described in subsections F.2 through 9 of this Appendix.
    b. The items in this group shall be treated as a credit to the 
affected individual F&A cost category before that category is allocated 
to benefiting functions.

       G. Determination and Application of F&A Cost Rate or Rates

    1. F&A cost pools.
    a. (1) Subject to subsection b, the separate categories of F&A costs 
allocated to each major function of the institution as prescribed in 
Section F shall be aggregated and treated as a common pool for that 
function. The amount in each pool shall be divided by the distribution 
base described in subsection G.2 of this Appendix to arrive at a single 
F&A cost rate for each function.
    (2) The rate for each function is used to distribute F&A costs to 
individual sponsored agreements of that function. Since a common pool is 
established for each major function of the institution, a separate F&A 
cost rate would be established for each of the major functions described 
in Section B.1 of this Appendix under which sponsored agreements are 
carried out.
    (3) Each institution's F&A cost rate process must be appropriately 
designed to ensure that Federal sponsors do not in any way subsidize the 
F&A costs of other sponsors, specifically activities sponsored by 
industry and foreign governments. Accordingly, each allocation method 
used to identify and allocate the F&A cost pools, as described in 
Sections E.2 and F.2 through F.9 of this Appendix, must contain the full 
amount of the institution's modified total costs or other appropriate 
units of measurement used to make the computations. In addition, the 
final rate distribution base (as defined in subsection G.2 of this 
Appendix) for each major function (organized research, instruction, 
etc., as described in Section B.1 of this Appendix) shall contain all 
the programs or activities that utilize the F&A costs allocated to that 
major function. At the time a F&A cost proposal is submitted to a 
cognizant Federal agency, each institution must describe the process it 
uses to ensure that Federal funds are not used to subsidize industry and 
foreign government funded programs.
    b. In some instances a single rate basis for use across the board on 
all work within a major function at an institution may not be 
appropriate. A single rate for research, for example, might not take 
into account those different environmental factors and other conditions 
which may affect substantially the F&A costs applicable to a particular 
segment of research at the institution. A particular segment of research 
may be that performed under a single sponsored agreement or it may 
consist of research under a group of sponsored agreements performed in a 
common environment. The environmental factors are not limited to the 
physical location of the work. Other important factors are the level of 
the administrative support required, the nature of the facilities or 
other resources employed, the scientific disciplines or technical skills 
involved, the organizational arrangements used, or any combination 
thereof. Where a particular segment of a sponsored agreement is 
performed within an environment which appears to generate a 
significantly different level of F&A costs, provisions should be made 
for a separate F&A cost pool applicable to such work. The separate F&A 
cost pool should be developed during the regular course of the rate 
determination

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process and the separate F&A cost rate resulting therefrom should be 
utilized; provided it is determined that such F&A cost rate differs 
significantly from that which would have been obtained under subsection 
G.1.a of this Appendix, and the volume of work to which such rate would 
apply is material in relation to other sponsored agreements at the 
institution.
    2. The distribution basis. F&A costs shall be distributed to 
applicable sponsored agreements and other benefiting activities within 
each major function (see Section B.1) on the basis of modified total 
direct costs, consisting of all salaries and wages, fringe benefits, 
materials and supplies, services, travel, and subgrants and subcontracts 
up to the first $25,000 of each subgrant or subcontract (regardless of 
the period covered by the subgrant or subcontract). Equipment, capital 
expenditures, charges for patient care and tuition remission, rental 
costs, scholarships, and fellowships as well as the portion of each 
subgrant and subcontract in excess of $25,000 shall be excluded from 
modified total direct costs. Other items may only be excluded where 
necessary to avoid a serious inequity in the distribution of F&A costs. 
For this purpose, a F&A cost rate should be determined for each of the 
separate F&A cost pools developed pursuant to subsection G.1 of this 
Appendix. The rate in each case should be stated as the percentage that 
the amount of the particular F&A cost pool is of the modified total 
direct costs identified with such pool.
    3. Negotiated lump sum for F&A costs. A negotiated fixed amount in 
lieu of F&A costs may be appropriate for self-contained, off-campus, or 
primarily subcontracted activities where the benefits derived from an 
institution's F&A services cannot be readily determined. Such negotiated 
F&A costs will be treated as an offset before allocation to instruction, 
organized research, other sponsored activities, and other institutional 
activities. The base on which such remaining expenses are allocated 
should be appropriately adjusted.
    4. Predetermined rates for F&A costs. Public Law 87-638 (76 Stat. 
437) authorizes the use of predetermined rates in determining the 
``indirect costs'' (F&A costs in this Appendix) applicable under 
research agreements with educational institutions. The stated objectives 
of the law are to simplify the administration of cost-type research and 
development contracts (including grants) with educational institutions, 
to facilitate the preparation of their budgets, and to permit more 
expeditious closeout of such contracts when the work is completed. In 
view of the potential advantages offered by this procedure, negotiation 
of predetermined rates for F&A costs for a period of two to four years 
should be the norm in those situations where the cost experience and 
other pertinent facts available are deemed sufficient to enable the 
parties involved to reach an informed judgment as to the probable level 
of F&A costs during the ensuing accounting periods.
    5. Negotiated fixed rates and carry-forward provisions. When a fixed 
rate is negotiated in advance for a fiscal year (or other time period), 
the over- or under-recovery for that year may be included as an 
adjustment to the F&A cost for the next rate negotiation. When the rate 
is negotiated before the carry-forward adjustment is determined, the 
carry-forward amount may be applied to the next subsequent rate 
negotiation. When such adjustments are to be made, each fixed rate 
negotiated in advance for a given period will be computed by applying 
the expected F&A costs allocable to sponsored agreements for the 
forecast period plus or minus the carry-forward adjustment (over- or 
under-recovery) from the prior period, to the forecast distribution 
base. Unrecovered amounts under lump-sum agreements or cost-sharing 
provisions of prior years shall not be carried forward for consideration 
in the new rate negotiation. There must, however, be an advance 
understanding in each case between the institution and the cognizant 
Federal agency as to whether these differences will be considered in the 
rate negotiation rather than making the determination after the 
differences are known. Further, institutions electing to use this carry-
forward provision may not subsequently change without prior approval of 
the cognizant Federal agency. In the event that an institution returns 
to a postdetermined rate, any over- or under-recovery during the period 
in which negotiated fixed rates and carry-forward provisions were 
followed will be included in the subsequent postdetermined rates. Where 
multiple rates are used, the same procedure will be applicable for 
determining each rate.
    6. Provisional and final rates for F&A costs. Where the cognizant 
agency determines that cost experience and other pertinent facts do not 
justify the use of predetermined rates, or a fixed rate with a carry-
forward, or if the parties cannot agree on an equitable rate, a 
provisional rate shall be established. To prevent substantial 
overpayment or underpayment, the provisional rate may be adjusted by the 
cognizant agency during the institution's fiscal year. Predetermined or 
fixed rates may replace provisional rates at any time prior to the close 
of the institution's fiscal year. If a provisional rate is not replaced 
by a predetermined or fixed rate prior to the end of the institution's 
fiscal year, a final rate will be established and upward or downward 
adjustments will be made based on the actual allowable costs incurred 
for the period involved.
    7. Fixed rates for the life of the sponsored agreement.

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    a. Federal agencies shall use the negotiated rates for F&A costs in 
effect at the time of the initial award throughout the life of the 
sponsored agreement. ``Life'' for the purpose of this subsection means 
each competitive segment of a project. A competitive segment is a period 
of years approved by the Federal funding agency at the time of the 
award. If negotiated rate agreements do not extend through the life of 
the sponsored agreement at the time of the initial award, then the 
negotiated rate for the last year of the sponsored agreement shall be 
extended through the end of the life of the sponsored agreement. Award 
levels for sponsored agreements may not be adjusted in future years as a 
result of changes in negotiated rates.
    b. When an educational institution does not have a negotiated rate 
with the Federal Government at the time of the award (because the 
educational institution is a new grantee or the parties cannot reach 
agreement on a rate), the provisional rate used at the time of the award 
shall be adjusted once a rate is negotiated and approved by the 
cognizant agency.
    8. Limitation on reimbursement of administrative costs.
    a. Notwithstanding the provisions of subsection G.1.a of this 
Appendix, the administrative costs charged to sponsored agreements 
awarded or amended (including continuation and renewal awards) with 
effective dates beginning on or after the start of the institution's 
first fiscal year which begins on or after October 1, 1991, shall be 
limited to 26% of modified total direct costs (as defined in subsection 
G.2 of this Appendix) for the total of General Administration and 
General Expenses, Departmental Administration, Sponsored Projects 
Administration, and Student Administration and Services (including their 
allocable share of depreciation and/or use allowances, interest costs, 
operation and maintenance expenses, and fringe benefits costs, as 
provided by Sections F.5, F.6, F.7 and F.9 of this Appendix) and all 
other types of expenditures not listed specifically under one of the 
subcategories of facilities in Section F of this Appendix.
    b. Existing F&A cost rates that affect institutions' fiscal years 
which begin on or after October 1, 1991, shall be unilaterally amended 
by the cognizant Federal agency to reflect the cost limitation in 
subsection G.8.a of this Appendix.
    c. Permanent rates established prior to this revision that have been 
amended in accordance with subsection G.8.b of this Appendix may be 
renegotiated. However, no such renegotiated rate may exceed the rate 
which would have been in effect if the agreement had remained in effect; 
nor may the administrative portion of any renegotiated rate exceed the 
limitation in subsection a.
    d. Institutions should not change their accounting or cost 
allocation methods which were in effect on May 1, 1991, if the effect is 
to change the charging of a particular type of cost from F&A to direct, 
or reclassify costs, or increase allocations, from the administrative 
pools identified in subsection to the other F&A cost pools or fringe 
benefits. Cognizant Federal agencies are authorized to permit changes 
where an institution's charging practices are at variance with 
acceptable practices followed by a substantial majority of other 
institutions.
    9. Alternative method for administrative costs.
    a. Notwithstanding the provisions of subsection 1.a, an institution 
may elect to claim fixed allowance for the ``Administration'' portion of 
F&A costs. The allowance could be either 24% of modified total direct 
costs or a percentage equal to 95% of the most recently negotiated fixed 
or predetermined rate for the cost pools included under 
``Administration'' as defined in Section F.1 of this Appendix, whichever 
is less, provided that no accounting or cost allocation changes with the 
effects described in subsection G.8.d of this Appendix have occurred. 
Under this alternative, no cost proposal need be prepared for the 
``Administration'' portion of the F&A cost rate nor is further 
identification or documentation of these costs required (see subsection 
G.9.c of this Appendix). Where a negotiated F&A cost agreement includes 
this alternative, an institution shall make no further charges for the 
expenditure categories described in Sections F.5, F.6, F.7 and F.9 of 
this Appendix.
    b. In negotiations of rates for subsequent periods, an institution 
that has elected the option of subsection a may continue to exercise it 
at the same rate without further identification or documentation of 
costs, provided that no accounting or cost allocation changes with the 
effects described in subsection G.8.d of this Appendix have occurred.
    c. If an institution elects to accept a threshold rate, it is not 
required to perform a detailed analysis of its administrative costs. 
However, in order to compute the facilities components of its F&A cost 
rate, the institution must reconcile its F&A cost proposal to its 
financial statements and make appropriate adjustments and 
reclassifications to identify the costs of each major function as 
defined in Section B.1 of this Appendix, as well as to identify and 
allocate the facilities components. Administrative costs that are not 
identified as such by the institution's accounting system (such as those 
incurred in academic departments) will be classified as instructional 
costs for purposes of reconciling F&A cost proposals to financial 
statements and allocating facilities costs.
    10. Individual rate components.

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    In order to satisfy the requirements of Section J.14 of this 
Appendix and to provide mutually agreed upon information for management 
purposes, each F&A cost rate negotiation or determination shall include 
development of a rate for each F&A cost pool as well as the overall F&A 
cost rate.
    11. Negotiation and approval of F&A rate.
    a. Cognizant agency assignments. ``A cognizant agency'' means the 
Federal agency responsible for negotiating and approving F&A rates for 
an educational institution on behalf of all Federal agencies.
    (1) Cost negotiation cognizance is assigned to the Department of 
Health and Human Services (HHS) or the Department of Defense's Office of 
Naval Research (DOD), normally depending on which of the two agencies 
(HHS or DOD) provides more funds to the educational institution for the 
most recent three years. Information on funding shall be derived from 
relevant data gathered by the National Science Foundation. In cases 
where neither HHS nor DOD provides Federal funding to an educational 
institution, the cognizant agency assignment shall default to HHS. 
Notwithstanding the method for cognizance determination described above, 
other arrangements for cognizance of a particular educational 
institution may also be based in part on the types of research performed 
at the educational institution and shall be decided based on mutual 
agreement between HHS and DOD.
    (2) Cognizant assignments as of December 31, 1995, shall continue in 
effect through educational institutions' fiscal years ending during 
1997, or the period covered by negotiated agreements in effect on 
December 31, 1995, whichever is later, except for those educational 
institutions with cognizant agencies other than HHS or DOD. Cognizance 
for these educational institutions shall transfer to HHS or DOD at the 
end of the period covered by the current negotiated rate agreement. 
After cognizance is established, it shall continue for a five-year 
period.
    b. Acceptance of rates. The negotiated rates shall be accepted by 
all Federal agencies. Only under special circumstances, when required by 
law or regulation, may an agency use a rate different from the 
negotiated rate for a class of sponsored agreements or a single 
sponsored agreement.
    c. Correcting deficiencies. The cognizant agency shall negotiate 
changes needed to correct systems deficiencies relating to 
accountability for sponsored agreements. Cognizant agencies shall 
address the concerns of other affected agencies, as appropriate.
    d. Resolving questioned costs. The cognizant agency shall conduct 
any necessary negotiations with an educational institution regarding 
amounts questioned by audit that are due the Federal Government related 
to costs covered by a negotiated agreement.
    e. Reimbursement. Reimbursement to cognizant agencies for work 
performed under Part 220 may be made by reimbursement billing under the 
Economy Act, 31 U.S.C. 1535.
    f. Procedure for establishing facilities and administrative rates. 
The cognizant agency shall arrange with the educational institution to 
provide copies of rate proposals to all interested agencies. Agencies 
wanting such copies should notify the cognizant agency. Rates shall be 
established by one of the following methods:
    (1) Formal negotiation. The cognizant agency is responsible for 
negotiating and approving rates for an educational institution on behalf 
of all Federal agencies. Non-cognizant Federal agencies, which award 
sponsored agreements to an educational institution, shall notify the 
cognizant agency of specific concerns (i.e., a need to establish special 
cost rates) that could affect the negotiation process. The cognizant 
agency shall address the concerns of all interested agencies, as 
appropriate. A pre-negotiation conference may be scheduled among all 
interested agencies, if necessary. The cognizant agency shall then 
arrange a negotiation conference with the educational institution.
    (2) Other than formal negotiation. The cognizant agency and 
educational institution may reach an agreement on rates without a formal 
negotiation conference; for example, through correspondence or use of 
the simplified method described in this Appendix.
    g. Formalizing determinations and agreements. The cognizant agency 
shall formalize all determinations or agreements reached with an 
educational institution and provide copies to other agencies having an 
interest.
    h. Disputes and disagreements. Where the cognizant agency is unable 
to reach agreement with an educational institution with regard to rates 
or audit resolution, the appeal system of the cognizant agency shall be 
followed for resolution of the disagreement.
    12. Standard Format for Submission. For facilities and 
administrative (F&A) rate proposals submitted on or after July 1, 2001, 
educational institutions shall use the standard format, shown in 
Attachment C to this Appendix, to submit their F&A rate proposal to the 
cognizant agency. The cognizant agency may, on an institution-by-
institution basis, grant exceptions from all or portions of Part II of 
the standard format requirement. This requirement does not apply to 
educational institutions that use the simplified method for calculating 
F&A rates, as described in Section H of this Appendix.

               H. Simplified Method for Small Institutions

    1. General.
    a. Where the total direct cost of work covered by Part 220 at an 
institution does not exceed $10 million in a fiscal year, the use of

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the simplified procedure described in subsections H.2 or 3 of this 
Appendix, may be used in determining allowable F&A costs. Under this 
simplified procedure, the institution's most recent annual financial 
report and immediately available supporting information shall be 
utilized as basis for determining the F&A cost rate applicable to all 
sponsored agreements. The institution may use either the salaries and 
wages (see subsection H.2 of this Appendix) or modified total direct 
costs (see subsection H.3 of this Appendix) as distribution basis.
    b. The simplified procedure should not be used where it produces 
results that appear inequitable to the Federal Government or the 
institution. In any such case, F&A costs should be determined through 
use of the regular procedure.
    2. Simplified procedure--Salaries and wages base.
    a. Establish the total amount of salaries and wages paid to all 
employees of the institution.
    b. Establish an F&A cost pool consisting of the expenditures 
(exclusive of capital items and other costs specifically identified as 
unallowable) that customarily are classified under the following titles 
or their equivalents:
    (1) General administration and general expenses (exclusive of costs 
of student administration and services, student activities, student aid, 
and scholarships). In those cases where expenditures have previously 
been allocated to other institutional activities, they may be included 
in the F&A cost pool. The total amount of salaries and wages included in 
the F&A cost pool must be separately identified.
    (2) Operation and maintenance of physical plant; and depreciation 
and use allowances; after appropriate adjustment for costs applicable to 
other institutional activities.
    (3) Library.
    (4) Department administration expenses, which will be computed as 20 
percent of the salaries and expenses of deans and heads of departments.
    c. Establish a salary and wage distribution base, determined by 
deducting from the total of salaries and wages as established in 
subsection a the amount of salaries and wages included under subsection 
H.2.b of this Appendix.
    d. Establish the F&A cost rate, determined by dividing the amount in 
the F&A cost pool, subsection H.2.b of this Appendix, by the amount of 
the distribution base, subsection H.2.c of this Appendix.
    e. Apply the F&A cost rate to direct salaries and wages for 
individual agreements to determine the amount of F&A costs allocable to 
such agreements.
    3. Simplified procedure--Modified total direct cost base.
    a. Establish the total costs incurred by the institution for the 
base period.
    b. Establish a F&A cost pool consisting of the expenditures 
(exclusive of capital items and other costs specifically identified as 
unallowable) that customarily are classified under the following titles 
or their equivalents:
    (1) General administration and general expenses (exclusive of costs 
of student administration and services, student activities, student aid, 
and scholarships). In those cases where expenditures have previously 
been allocated to other institutional activities, they may be included 
in the F&A cost pool. The modified total direct costs amount included in 
the F&A cost pool must be separately identified.
    (2) Operation and maintenance of physical plant; and depreciation 
and use allowances; after appropriate adjustment for costs applicable to 
other institutional activities.
    (3) Library.
    (4) Department administration expenses, which will be computed as 20 
percent of the salaries and expenses of deans and heads of departments.
    c. Establish a modified total direct cost distribution base, as 
defined in Section G.2 of this Appendix, that consists of all 
institution's direct functions.
    d. Establish the F&A cost rate, determined by dividing the amount in 
the F&A cost pool, subsection b, by the amount of the distribution base, 
subsection c.
    e. Apply the F&A cost rate to the modified total direct costs for 
individual agreements to determine the amount of F&A costs allocable to 
such agreements.

                               I. Reserved

            J. General Provisions for Selected Items of Cost

    Sections J.1 through 54 of this Appendix provide principles to be 
applied in establishing the allowability of certain items involved in 
determining cost. These principles should apply irrespective of whether 
a particular item of cost is properly treated as direct cost or F&A 
cost. Failure to mention a particular item of cost is not intended to 
imply that it is either allowable or unallowable; rather, determination 
as to allowability in each case should be based on the treatment 
provided for similar or related items of cost. In case of a discrepancy 
between the provisions of a specific sponsored agreement and the 
provisions below, the agreement should govern.
    1. Advertising and public relations costs.
    a. The term advertising costs means the costs of advertising media 
and corollary administrative costs. Advertising media include magazines, 
newspapers, radio and television, direct mail, exhibits, electronic or 
computer transmittals, and the like.

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    b. The term public relations includes community relations and means 
those activities dedicated to maintaining the image of the institution 
or maintaining or promoting understanding and favorable relations with 
the community or public at large or any segment of the public.
    c. The only allowable advertising costs are those that are solely 
for:
    (1) The recruitment of personnel required for the performance by the 
institution of obligations arising under a sponsored agreement (See also 
section J.42.b of this Appendix, Recruiting);
    (2) The procurement of goods and services for the performance of a 
sponsored agreement;
    (3) The disposal of scrap or surplus materials acquired in the 
performance of a sponsored agreement except when non-Federal entities 
are reimbursed for disposal costs at a predetermined amount; or
    (4) Other specific purposes necessary to meet the requirements of 
the sponsored agreement.
    d. The only allowable public relations costs are:
    (1) Costs specifically required by the sponsored agreement;
    (2) Costs of communicating with the public and press pertaining to 
specific activities or accomplishments which result from performance of 
sponsored agreements (these costs are considered necessary as part of 
the outreach effort for the sponsored agreement); or
    (3) Costs of conducting general liaison with news media and 
government public relations officers, to the extent that such activities 
are limited to communication and liaison necessary keep the public 
informed on matters of public concern, such as notices of Federal 
contract/grant awards, financial matters, etc.
    e. Costs identified in subsections c and d if incurred for more than 
one sponsored agreement or for both sponsored work and other work of the 
institution, are allowable to the extent that the principles in sections 
D. (``Direct Costs'') and E. (``F & A Costs'') of this Appendix are 
observed.
    f. Unallowable advertising and public relations costs include the 
following:
    (1) All advertising and public relations costs other than as 
specified in subsections J.1.c, 1.d and 1.e of this Appendix.
    (2) Costs of meetings, conventions, convocations, or other events 
related to other activities of the institution, including:
    (a) Costs of displays, demonstrations, and exhibits;
    (b) Costs of meeting rooms, hospitality suites, and other special 
facilities used in conjunction with shows and other special events; and
    (c) Salaries and wages of employees engaged in setting up and 
displaying exhibits, making demonstrations, and providing briefings;
    (3) Costs of promotional items and memorabilia, including models, 
gifts, and souvenirs;
    (4) Costs of advertising and public relations designed solely to 
promote the institution.
    2. Advisory councils.
    Costs incurred by advisory councils or committees are allowable as a 
direct cost where authorized by the Federal awarding agency or as an 
indirect cost where allocable to sponsored agreements.
    3. Alcoholic beverages.
    Costs of alcoholic beverages are unallowable.
    4. Alumni/ae activities.
    Costs incurred for, or in support of, alumni/ae activities and 
similar services are unallowable.
    5. Audit costs and related services.
    a. The costs of audits required by, and performed in accordance 
with, the Single Audit Act, as implemented by Circular A-133, ``Audits 
of States, Local Governments, and Non-Profit Organizations'' are 
allowable. Also see 31 U.S.C. 7505(b) and section ----.230 (``Audit 
Costs'') of Circular A-133.
    b. Other audit costs are allowable if included in an indirect cost 
rate proposal, or if specifically approved by the awarding agency as a 
direct cost to an award.
    c. The cost of agreed-upon procedures engagements to monitor 
subrecipients who are exempted from A-133 under section ----.200(d) are 
allowable, subject to the conditions listed in A-133, section ----.230 
(b)(2).
    6. Bad Debt.
    Bad debts, including losses (whether actual or estimated) arising 
from uncollectable accounts and other claims, related collection costs, 
and related legal costs, are unallowable.
    7. Bonding costs.
    a. Bonding costs arise when the Federal Government requires 
assurance against financial loss to itself or others by reason of the 
act or default of the institution. They arise also in instances where 
the institution requires similar assurance. Included are such bonds as 
bid, performance, payment, advance payment, infringement, and fidelity 
bonds.
    b. Costs of bonding required pursuant to the terms of the award are 
allowable.
    c. Costs of bonding required by the institution in the general 
conduct of its operations are allowable to the extent that such bonding 
is in accordance with sound business practice and the rates and premiums 
are reasonable under the circumstances.
    8. Commencement and convocation costs.
    Costs incurred for commencements and convocations are unallowable, 
except as provided for in Section F.9 of this Appendix.
    9. Communication costs.
    Costs incurred for telephone services, local and long distance 
telephone calls, telegrams,

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postage, messenger, electronic or computer transmittal services and the 
like are allowable.
    10. Compensation for personal services.
    a. General. Compensation for personal services covers all amounts 
paid currently or accrued by the institution for services of employees 
rendered during the period of performance under sponsored agreements. 
Such amounts include salaries, wages, and fringe benefits (see 
subsection J.10.f of this Appendix). These costs are allowable to the 
extent that the total compensation to individual employees conforms to 
the established policies of the institution, consistently applied, and 
provided that the charges for work performed directly on sponsored 
agreements and for other work allocable as F&A costs are determined and 
supported as provided below. Charges to sponsored agreements may include 
reasonable amounts for activities contributing and intimately related to 
work under the agreements, such as delivering special lectures about 
specific aspects of the ongoing activity, writing reports and articles, 
participating in appropriate seminars, consulting with colleagues and 
graduate students, and attending meetings and conferences. Incidental 
work (that in excess of normal for the individual), for which 
supplemental compensation is paid by an institution under institutional 
policy, need not be included in the payroll distribution systems 
described below, provided such work and compensation are separately 
identified and documented in the financial management system of the 
institution.
    b. Payroll distribution.
    (1) General Principles.
    (a) The distribution of salaries and wages, whether treated as 
direct or F&A costs, will be based on payrolls documented in accordance 
with the generally accepted practices of colleges and universities. 
Institutions may include in a residual category all activities that are 
not directly charged to sponsored agreements, and that need not be 
distributed to more than one activity for purposes of identifying F&A 
costs and the functions to which they are allocable. The components of 
the residual category are not required to be separately documented.
    (b) The apportionment of employees' salaries and wages which are 
chargeable to more than one sponsored agreement or other cost objective 
will be accomplished by methods which will--
    (1) Be in accordance with Sections A.2 and C of this Appendix;
    (2) Produce an equitable distribution of charges for employee's 
activities; and
    (3) Distinguish the employees' direct activities from their F&A 
activities.
    (c) In the use of any methods for apportioning salaries, it is 
recognized that, in an academic setting, teaching, research, service, 
and administration are often inextricably intermingled. A precise 
assessment of factors that contribute to costs is not always feasible, 
nor is it expected. Reliance, therefore, is placed on estimates in which 
a degree of tolerance is appropriate.
    (d) There is no single best method for documenting the distribution 
of charges for personal services. Methods for apportioning salaries and 
wages, however, must meet the criteria specified in subsection 
J.10.b.(2) of this Appendix. Examples of acceptable methods are 
contained in subsection c. Other methods that meet the criteria 
specified in subsection J.10.b.(2) of this Appendix also shall be deemed 
acceptable, if a mutually satisfactory alternative agreement is reached.
    (2) Criteria for Acceptable Methods.
    (a) The payroll distribution system will be incorporated into the 
official records of the institution; reasonably reflect the activity for 
which the employee is compensated by the institution; and encompass both 
sponsored and all other activities on an integrated basis, but may 
include the use of subsidiary records. (Compensation for incidental work 
described in subsection a need not be included.)
    (b) The method must recognize the principle of after-the-fact 
confirmation or determination so that costs distributed represent actual 
costs, unless a mutually satisfactory alternative agreement is reached. 
Direct cost activities and F&A cost activities may be confirmed by 
responsible persons with suitable means of verification that the work 
was performed. Confirmation by the employee is not a requirement for 
either direct or F&A cost activities if other responsible persons make 
appropriate confirmations.
    (c) The payroll distribution system will allow confirmation of 
activity allocable to each sponsored agreement and each of the 
categories of activity needed to identify F&A costs and the functions to 
which they are allocable. The activities chargeable to F&A cost 
categories or the major functions of the institution for employees whose 
salaries must be apportioned (see subsection J.10.b.(1)(b) of this 
Appendix), if not initially identified as separate categories, may be 
subsequently distributed by any reasonable method mutually agreed to, 
including, but not limited to, suitably conducted surveys, statistical 
sampling procedures, or the application of negotiated fixed rates.
    (d) Practices vary among institutions and within institutions as to 
the activity constituting a full workload. Therefore, the payroll 
distribution system may reflect categories of activities expressed as a 
percentage distribution of total activities.
    (e) Direct and F&A charges may be made initially to sponsored 
agreements on the basis of estimates made before services are performed. 
When such estimates are used, significant changes in the corresponding 
work activity must be identified and entered

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into the payroll distribution system. Short-term (such as one or two 
months) fluctuation between workload categories need not be considered 
as long as the distribution of salaries and wages is reasonable over the 
longer term, such as an academic period.
    (f) The system will provide for independent internal evaluations to 
ensure the system's effectiveness and compliance with the above 
standards.
    (g) For systems which meet these standards, the institution will not 
be required to provide additional support or documentation for the 
effort actually performed.
    c. Examples of Acceptable Methods for Payroll Distribution:
    (1) Plan-Confirmation: Under this method, the distribution of 
salaries and wages of professorial and professional staff applicable to 
sponsored agreements is based on budgeted, planned, or assigned work 
activity, updated to reflect any significant changes in work 
distribution. A plan-confirmation system used for salaries and wages 
charged directly or indirectly to sponsored agreements will meet the 
following standards:
    (a) A system of budgeted, planned, or assigned work activity will be 
incorporated into the official records of the institution and encompass 
both sponsored and all other activities on an integrated basis. The 
system may include the use of subsidiary records.
    (b) The system will reasonably reflect only the activity for which 
the employee is compensated by the institution (compensation for 
incidental work described in subsection a need not be included). 
Practices vary among institutions and within institutions as to the 
activity constituting a full workload. Hence, the system will reflect 
categories of activities expressed as a percentage distribution of total 
activities. (See Section H of this Appendix for treatment of F&A costs 
under the simplified method for small institutions.)
    (c) The system will reflect activity applicable to each sponsored 
agreement and to each category needed to identify F&A costs and the 
functions to which they are allocable. The system may treat F&A cost 
activities initially within a residual category and subsequently 
determine them by alternate methods as discussed in subsection 
J.10.c.(2)(c) of this Appendix.
    (d) The system will provide for modification of an individual's 
salary or salary distribution commensurate with a significant change in 
the employee's work activity. Short-term (such as one or two months) 
fluctuation between workload categories need not be considered as long 
as the distribution of salaries and wages is reasonable over the longer 
term, such as an academic period. Whenever it is apparent that a 
significant change in work activity that is directly or indirectly 
charged to sponsored agreements will occur or has occurred, the change 
will be documented over the signature of a responsible official and 
entered into the system.
    (e) At least annually a statement will be signed by the employee, 
principal investigator, or responsible official(s) using suitable means 
of verification that the work was performed, stating that salaries and 
wages charged to sponsored agreements as direct charges, and to 
residual, F&A cost or other categories are reasonable in relation to 
work performed.
    (f) The system will provide for independent internal evaluation to 
ensure the system's integrity and compliance with the above standards.
    (g) In the use of this method, an institution shall not be required 
to provide additional support or documentation for the effort actually 
performed.
    (2) After-the-fact Activity Records: Under this system the 
distribution of salaries and wages by the institution will be supported 
by activity reports as prescribed below.
    (a) Activity reports will reflect the distribution of activity 
expended by employees covered by the system (compensation for incidental 
work as described in subsection a need not be included).
    (b) These reports will reflect an after-the-fact reporting of the 
percentage distribution of activity of employees. Charges may be made 
initially on the basis of estimates made before the services are 
performed, provided that such charges are promptly adjusted if 
significant differences are indicated by activity records.
    (c) Reports will reasonably reflect the activities for which 
employees are compensated by the institution. To confirm that the 
distribution of activity represents a reasonable estimate of the work 
performed by the employee during the period, the reports will be signed 
by the employee, principal investigator, or responsible official(s) 
using suitable means of verification that the work was performed.
    (d) The system will reflect activity applicable to each sponsored 
agreement and to each category needed to identify F&A costs and the 
functions to which they are allocable. The system may treat F&A cost 
activities initially within a residual category and subsequently 
determine them by alternate methods as discussed in subsection 
J.10.b.(2)(c) of this Appendix.
    (e) For professorial and professional staff, the reports will be 
prepared each academic term, but no less frequently than every six 
months. For other employees, unless alternate arrangements are agreed 
to, the reports will be prepared no less frequently than monthly and 
will coincide with one or more pay periods.
    (f) Where the institution uses time cards or other forms of after-
the-fact payroll documents as original documentation for payroll and 
payroll charges, such documents shall

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qualify as records for this purpose, provided that they meet the 
requirements in subsections J.10.c.(2)(a) through (e) of this Appendix.
    (3) Multiple Confirmation Records: Under this system, the 
distribution of salaries and wages of professorial and professional 
staff will be supported by records which certify separately for direct 
and F&A cost activities as prescribed below.
    (a) For employees covered by the system, there will be direct cost 
records to reflect the distribution of that activity expended which is 
to be allocable as direct cost to each sponsored agreement. There will 
also be F&A cost records to reflect the distribution of that activity to 
F&A costs. These records may be kept jointly or separately (but are to 
be certified separately, see below).
    (b) Salary and wage charges may be made initially on the basis of 
estimates made before the services are performed, provided that such 
charges are promptly adjusted if significant differences occur.
    (c) Institutional records will reasonably reflect only the activity 
for which employees are compensated by the institution (compensation for 
incidental work as described in subsection a need not be included).
    (d) The system will reflect activity applicable to each sponsored 
agreement and to each category needed to identify F&A costs and the 
functions to which they are allocable.
    (e) To confirm that distribution of activity represents a reasonable 
estimate of the work performed by the employee during the period, the 
record for each employee will include:
    (1) The signature of the employee or of a person having direct 
knowledge of the work, confirming that the record of activities 
allocable as direct costs of each sponsored agreement is appropriate; 
and,
    (2) The record of F&A costs will include the signature of 
responsible person(s) who use suitable means of verification that the 
work was performed and is consistent with the overall distribution of 
the employee's compensated activities. These signatures may all be on 
the same document.
    (f) The reports will be prepared each academic term, but no less 
frequently than every six months.
    (g) Where the institution uses time cards or other forms of after-
the-fact payroll documents as original documentation for payroll and 
payroll charges, such documents shall qualify as records for this 
purpose, provided they meet the requirements in subsections 
J.10.c.(3)(a) through (f) of this Appendix.
    d. Salary rates for faculty members.
    (1) Salary rates for academic year. Charges for work performed on 
sponsored agreements by faculty members during the academic year will be 
based on the individual faculty member's regular compensation for the 
continuous period which, under the policy of the institution concerned, 
constitutes the basis of his salary. Charges for work performed on 
sponsored agreements during all or any portion of such period are 
allowable at the base salary rate. In no event will charges to sponsored 
agreements, irrespective of the basis of computation, exceed the 
proportionate share of the base salary for that period. This principle 
applies to all members of the faculty at an institution. Since intra-
university consulting is assumed to be undertaken as a university 
obligation requiring no compensation in addition to full-time base 
salary, the principle also applies to faculty members who function as 
consultants or otherwise contribute to a sponsored agreement conducted 
by another faculty member of the same institution. However, in unusual 
cases where consultation is across departmental lines or involves a 
separate or remote operation, and the work performed by the consultant 
is in addition to his regular departmental load, any charges for such 
work representing extra compensation above the base salary are allowable 
provided that such consulting arrangements are specifically provided for 
in the agreement or approved in writing by the sponsoring agency.
    (2) Periods outside the academic year.
    (a) Except as otherwise specified for teaching activity in 
subsection J.10.d.(2)(b) of this Appendix, charges for work performed by 
faculty members on sponsored agreements during the summer months or 
other period not included in the base salary period will be determined 
for each faculty member at a rate not in excess of the base salary 
divided by the period to which the base salary relates, and will be 
limited to charges made in accordance with other parts of this section. 
The base salary period used in computing charges for work performed 
during the summer months will be the number of months covered by the 
faculty member's official academic year appointment.
    (b) Charges for teaching activities performed by faculty members on 
sponsored agreements during the summer months or other periods not 
included in the base salary period will be based on the normal policy of 
the institution governing compensation to faculty members for teaching 
assignments during such periods.
    (3) Part-time faculty. Charges for work performed on sponsored 
agreements by faculty members having only part-time appointments will be 
determined at a rate not in excess of that regularly paid for the part-
time assignments. For example, an institution pays $5000 to a faculty 
member for half-time teaching during the academic year. He devoted one-
half of his remaining time to a sponsored agreement. Thus, his 
additional compensation, chargeable by the institution to the agreement, 
would be one-half of $5000, or $2500.

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    e. Noninstitutional professional activities. Unless an arrangement 
is specifically authorized by a Federal sponsoring agency, an 
institution must follow its institution-wide policies and practices 
concerning the permissible extent of professional services that can be 
provided outside the institution for noninstitutional compensation. 
Where such institution-wide policies do not exist or do not adequately 
define the permissible extent of consulting or other noninstitutional 
activities undertaken for extra outside pay, the Federal Government may 
require that the effort of professional staff working on sponsored 
agreements be allocated between institutional activities, and 
noninstitutional professional activities. If the sponsoring agency 
considers the extent of noninstitutional professional effort excessive, 
appropriate arrangements governing compensation will be negotiated on a 
case-by-case basis.
    f. Fringe benefits.
    (1) Fringe benefits in the form of regular compensation paid to 
employees during periods of authorized absences from the job, such as 
for annual leave, sick leave, military leave, and the like, are 
allowable, provided such costs are distributed to all institutional 
activities in proportion to the relative amount of time or effort 
actually devoted by the employees. See subsection J.11.f.(4) of this 
Appendix for treatment of sabbatical leave.
    (2) Fringe benefits in the form of employer contributions or 
expenses for social security, employee insurance, workmen's compensation 
insurance, tuition or remission of tuition for individual employees are 
allowable, provided such benefits are granted in accordance with 
established educational institutional policies, and are distributed to 
all institutional activities on an equitable basis. Tuition benefits for 
family members other than the employee are unallowable for fiscal years 
beginning after September 30, 1998. See Section J.45.b, Scholarships and 
student aid costs, of this Appendix for treatment of tuition remission 
provided to students.
    (3) Rules for pension plan costs are as follows:
    (a) Costs of the institution's pension plan which are incurred in 
accordance with the established policies of the institution are 
allowable, provided such policies meet the test of reasonableness, the 
methods of cost allocation are equitable for all activities, the amount 
of pension cost assigned to each fiscal year is determined in accordance 
with subsection (b), and the cost assigned to a given fiscal year is 
paid or funded for all plan participants within six months after the end 
of that year. However, increases to normal and past service pension 
costs caused by a delay in funding the actuarial liability beyond 30 
days after each quarter of the year to which such costs are assignable 
are unallowable.
    (b) The amount of pension cost assigned to each fiscal year shall be 
determined in accordance with generally accepted accounting principles. 
Institutions may elect to follow the ``Cost Accounting Standard for 
Composition and Measurement of Pension Cost'' (48 Part 9904-412).
    (c) Premiums paid for pension plan termination insurance pursuant to 
the Employee Retirement Income Security Act (ERISA) of 1974 (Pub. L. 93-
406) are allowable. Late payment charges on such premiums are 
unallowable. Excise taxes on accumulated funding deficiencies and 
prohibited transactions of pension plan fiduciaries imposed under ERISA 
are also unallowable.
    (4) Rules for sabbatical leave are as follows:
    (a) Costs of leave of absence by employees for performance of 
graduate work or sabbatical study, travel, or research are allowable 
provided the institution has a uniform policy on sabbatical leave for 
persons engaged in instruction and persons engaged in research. Such 
costs will be allocated on an equitable basis among all related 
activities of the institution.
    (b) Where sabbatical leave is included in fringe benefits for which 
a cost is determined for assessment as a direct charge, the aggregate 
amount of such assessments applicable to all work of the institution 
during the base period must be reasonable in relation to the 
institution's actual experience under its sabbatical leave policy.
    (5) Fringe benefits may be assigned to cost objectives by 
identifying specific benefits to specific individual employees or by 
allocating on the basis of institution-wide salaries and wages of the 
employees receiving the benefits. When the allocation method is used, 
separate allocations must be made to selective groupings of employees, 
unless the institution demonstrates that costs in relationship to 
salaries and wages do not differ significantly for different groups of 
employees. Fringe benefits shall be treated in the same manner as the 
salaries and wages of the employees receiving the benefits. The benefits 
related to salaries and wages treated as direct costs shall also be 
treated as direct costs; the benefits related to salaries and wages 
treated as F&A costs shall be treated as F&A costs.
    g. Institution-furnished automobiles.
    That portion of the cost of institution-furnished automobiles that 
relates to personal use by employees (including transportation to and 
from work) is unallowable regardless of whether the cost is reported as 
taxable income to the employees.
    h. Severance pay.
    (1) Severance pay is compensation in addition to regular salary and 
wages which is paid by an institution to employees whose services are 
being terminated. Costs of severance pay are allowable only to the 
extent

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that such payments are required by law, by employer-employee agreement, 
by established policy that constitutes in effect an implied agreement on 
the institution's part, or by circumstances of the particular 
employment.
    (2) Severance payments that are due to normal recurring turnover and 
which otherwise meet the conditions of subsection J.10.h.(1) of this 
Appendix may be allowed provided the actual costs of such severance 
payments are regarded as expenses applicable to the current fiscal year 
and are equitably distributed among the institution's activities during 
that period.
    (3) Severance payments that are due to abnormal or mass terminations 
are of such conjectural nature that allowability must be determined on a 
case-by-case basis. However, the Federal Government recognizes its 
obligation to participate, to the extent of its fair share, in any 
specific payment.
    (4) Costs incurred in excess of the institution's normal severance 
pay policy applicable to all persons employed by the institution upon 
termination of employment are unallowable.
    11. Contingency provisions.
    Contributions to a contingency reserve or any similar provision made 
for events the occurrence of which cannot be foretold with certainty as 
to time, intensity, or with an assurance of their happening, are 
unallowable, except as noted in the cost principles in this Appendix 
regarding self-insurance, pensions, severance and post-retirement health 
costs.
    12. Deans of faculty and graduate schools.
    The salaries and expenses of deans of faculty and graduate schools, 
or their equivalents, and their staffs, are allowable.
    13. Defense and prosecution of criminal and civil proceedings, 
claims, appeals and patent infringement.
    a. Definitions.
    ``Conviction,'' as used herein, means a judgment or conviction of a 
criminal offense by any court of competent jurisdiction, whether entered 
upon verdict or a plea, including a conviction due to a plea of nolo 
contendere.
    ``Costs,'' include, but are not limited to, administrative and 
clerical expenses; the cost of legal services, whether performed by in-
house or private counsel; the costs of the services of accountants, 
consultants, or others retained by the institution to assist it; costs 
of employees, officers and trustees, and any similar costs incurred 
before, during, and after commencement of a judicial or administrative 
proceeding that bears a direct relationship to the proceedings.
    ``Fraud,'' as used herein, means--
    (1) Acts of fraud or corruption or attempts to defraud the Federal 
Government or to corrupt its agents;
    (2) Acts that constitute a cause for debarment or suspension (as 
specified in agency regulations), and
    (3) Acts which violate the False Claims Act, 31 U.S.C., sections 
3729-3731, or the Anti-kickback Act, 41 U.S.C., sections 51 and 54.
    ``Penalty,'' does not include restitution, reimbursement, or 
compensatory damages.
    ``Proceeding,'' includes an investigation.
    b. (1) Except as otherwise described herein, costs incurred in 
connection with any criminal, civil or administrative proceeding 
(including filing of a false certification) commenced by the Federal 
Government, or a State, local or foreign government, are not allowable 
if the proceeding
    (a) Relates to a violation of, or failure to comply with, a Federal, 
State, local or foreign statute or regulation, by the institution 
(including its agents and employees); and
    (b) Results in any of the following dispositions:
    (i) In a criminal proceeding, a conviction.
    (ii) In a civil or administrative proceeding involving an allegation 
of fraud or similar misconduct, a determination of institutional 
liability.
    (iii) In the case of any civil or administrative proceeding, the 
imposition of a monetary penalty.
    (iv) A final decision by an appropriate Federal official to debar or 
suspend the institution, to rescind or void an award, or to terminate an 
award for default by reason of a violation or failure to comply with a 
law or regulation.
    (v) A disposition by consent or compromise, if the action could have 
resulted in any of the dispositions described in subsections 
J.13.b.(1)(b)(i) through (iv) of this Appendix.
    (2) If more than one proceeding involves the same alleged 
misconduct, the costs of all such proceedings shall be unallowable if 
any one of them results in one of the dispositions shown in subsection 
b.
    c. If a proceeding referred to in subsection J.13.b. of this 
Appendix is commenced by the Federal Government and is resolved by 
consent or compromise pursuant to an agreement entered into by the 
institution and the Federal Government, then the costs incurred by the 
institution in connection with such proceedings that are otherwise not 
allowable under subsection b. may be allowed to the extent specifically 
provided in such agreement.
    d. If a proceeding referred to in subsection J.13.b. of this 
Appendix is commenced by a State, local or foreign government, the 
authorized Federal official may allow the costs incurred by the 
institution for such proceedings, if such authorized official determines 
that the costs were incurred as a result of--
    (1) A specific term or condition of a federally-sponsored agreement; 
or

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    (2) Specific written direction of an authorized official of the 
sponsoring agency.
    e. Costs incurred in connection with proceedings described in 
subsection J.13.b of this Appendix, but which are not made unallowable 
by that subsection, may be allowed by the Federal Government, but only 
to the extent that:
    (1) The costs are reasonable in relation to the activities required 
to deal with the proceeding and the underlying cause of action;
    (2) Payment of the costs incurred, as allowable and allocable costs, 
is not prohibited by any other provision(s) of the sponsored agreement;
    (3) The costs are not otherwise recovered from the Federal 
Government or a third party, either directly as a result of the 
proceeding or otherwise; and,
    (4) The percentage of costs allowed does not exceed the percentage 
determined by an authorized Federal official to be appropriate 
considering the complexity of procurement litigation, generally accepted 
principles governing the award of legal fees in civil actions involving 
the United States as a party, and such other factors as may be 
appropriate. Such percentage shall not exceed 80 percent. However, if an 
agreement reached under subsection c has explicitly considered this 80 
percent limitation and permitted a higher percentage, then the full 
amount of costs resulting from that agreement shall be allowable.
    f. Costs incurred by the institution in connection with the defense 
of suits brought by its employees or ex-employees under section 2 of the 
Major Fraud Act of 1988 (Pub. L. 100-700), including the cost of all 
relief necessary to make such employee whole, where the institution was 
found liable or settled, are unallowable.
    g. Costs of legal, accounting, and consultant services, and related 
costs, incurred in connection with defense against Federal Government 
claims or appeals, or the prosecution of claims or appeals against the 
Federal Government, are unallowable.
    h. Costs of legal, accounting, and consultant services, and related 
costs, incurred in connection with patent infringement litigation, are 
unallowable unless otherwise provided for in the sponsored agreements.
    i. Costs, which may be unallowable under this section, including 
directly associated costs, shall be segregated and accounted for by the 
institution separately. During the pendency of any proceeding covered by 
subsections J.13.b and f of this Appendix, the Federal Government shall 
generally withhold payment of such costs. However, if in the best 
interests of the Federal Government, the Federal Government may provide 
for conditional payment upon provision of adequate security, or other 
adequate assurance, and agreement by the institution to repay all 
unallowable costs, plus interest, if the costs are subsequently 
determined to be unallowable.
    14. Depreciation and use allowances.
    a. Institutions may be compensated for the use of their buildings, 
capital improvements, and equipment, provided that they are used, needed 
in the institutions' activities, and properly allocable to sponsored 
agreements. Such compensation shall be made by computing either 
depreciation or use allowance. Use allowances are the means of providing 
such compensation when depreciation or other equivalent costs are not 
computed. The allocation for depreciation or use allowance shall be made 
in accordance with Section F.2 of this Appendix. Depreciation and use 
allowances are computed applying the following rules:
    b. The computation of depreciation or use allowances shall be based 
on the acquisition cost of the assets involved. The acquisition cost of 
an asset donated to the institution by a third party shall be its fair 
market value at the time of the donation.
    c. For this purpose, the acquisition cost will exclude:
    (1) The cost of land;
    (2) Any portion of the cost of buildings and equipment borne by or 
donated by the Federal Government, irrespective of where title was 
originally vested or where it is presently located; and
    (3) Any portion of the cost of buildings and equipment contributed 
by or for the institution where law or agreement prohibits recovery.
    d. In the use of the depreciation method, the following shall be 
observed:
    (1) The period of useful service (useful life) established in each 
case for usable capital assets must take into consideration such factors 
as type of construction, nature of the equipment, technological 
developments in the particular area, and the renewal and replacement 
policies followed for the individual items or classes of assets 
involved.
    (2) The depreciation method used to charge the cost of an asset (or 
group of assets) to accounting periods shall reflect the pattern of 
consumption of the asset during its useful life. In the absence of clear 
evidence indicating that the expected consumption of the asset will be 
significantly greater in the early portions than in the later portions 
of its useful life, the straight-line method shall be presumed to be the 
appropriate method. Depreciation methods once used shall not be changed 
unless approved in advance by the cognizant Federal agency. The 
depreciation methods used to calculate the depreciation amounts for F&A 
rate purposes shall be the same methods used by the institution for its 
financial statements. This requirement does not apply to those 
institutions (e.g., public institutions of higher education) which are

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not required to record depreciation by applicable generally accepted 
accounting principles (GAAP).
    (3) Where the depreciation method is introduced to replace the use 
allowance method, depreciation shall be computed as if the asset had 
been depreciated over its entire life (i.e., from the date the asset was 
acquired and ready for use to the date of disposal or withdrawal from 
service). The aggregate amount of use allowances and depreciation 
attributable to an asset (including imputed depreciation applicable to 
periods prior to the conversion to the use allowance method as well as 
depreciation after the conversion) may be less than, and in no case, 
greater than the total acquisition cost of the asset.
    (4) The entire building, including the shell and all components, may 
be treated as a single asset and depreciated over a single useful life. 
A building may also be divided into multiple components. Each component 
item may then be depreciated over its estimated useful life. The 
building components shall be grouped into three general components of a 
building: building shell (including construction and design costs), 
building services systems (e.g., elevators, HVAC, plumbing system and 
heating and air-conditioning system) and fixed equipment (e.g., 
sterilizers, casework, fume hoods, cold rooms and glassware/washers). In 
exceptional cases, a Federal cognizant agency may authorize an 
institution to use more than these three groupings. When an institution 
elects to depreciate its buildings by its components, the same 
depreciation methods must be used for F&A purposes and financial 
statement purposes, as described in subsection d.2.
    (5) Where the depreciation method is used for a particular class of 
assets, no depreciation may be allowed on any such assets that have 
outlived their depreciable lives. (See also subsection J.14.e.(3) of 
this Appendix)
    e. Under the use allowance method, the following shall be observed:
    (1) The use allowance for buildings and improvements (including 
improvements such as paved parking areas, fences, and sidewalks) shall 
be computed at an annual rate not exceeding two percent of acquisition 
cost. The use allowance for equipment shall be computed at an annual 
rate not exceeding six and two-thirds percent of acquisition cost. Use 
allowance recovery is limited to the acquisition cost of the assets. For 
donated assets, use allowance recovery is limited to the fair market 
value of the assets at the time of donation.
    (2) In contrast to the depreciation method, the entire building must 
be treated as a single asset without separating its ``shell'' from other 
building components under the use allowance method. The entire building 
must be treated as a single asset, and the two-percent use allowance 
limitation must be applied to all parts of the building. The two-percent 
limitation, however, need not be applied to equipment or other assets 
that are merely attached or fastened to the building but not permanently 
fixed and are used as furnishings, decorations or for specialized 
purposes (e.g., dentist chairs and dental treatment units, counters, 
laboratory benches bolted to the floor, dishwashers, modular furniture, 
and carpeting). Such equipment and assets will be considered as not 
being permanently fixed to the building if they can be removed without 
the need for costly or extensive alterations or repairs to the building 
to make the space usable for other purposes. Equipment and assets that 
meet these criteria will be subject to the 6\2/3\ percent equipment use 
allowance.
    (3) A reasonable use allowance may be negotiated for any assets that 
are considered to be fully depreciated, after taking into consideration 
the amount of depreciation previously charged to the Federal Government, 
the estimated useful life remaining at the time of negotiation, the 
effect of any increased maintenance charges, decreased efficiency due to 
age, and any other factors pertinent to the utilization of the asset for 
the purpose contemplated.
    (4) Notwithstanding subsection J.14.e.(3) of this Appendix, once an 
institution converts from one cost recovery methodology to another, 
acquisition costs not recovered may not be used in the calculation of 
the use allowance in subsection J.14.e.(3) of this Appendix.
    f. Except as otherwise provided in subsections J.14.b. through e. of 
this Appendix, a combination of the depreciation and use allowance 
methods may not be used, in like circumstances, for a single class of 
assets (e.g., buildings, office equipment, and computer equipment).
    g. Charges for use allowances or depreciation must be supported by 
adequate property records, and physical inventories must be taken at 
least once every two years to ensure that the assets exist and are 
usable, used, and needed. Statistical sampling techniques may be used in 
taking these inventories. In addition, when the depreciation method is 
used, adequate depreciation records showing the amount of depreciation 
taken each period must also be maintained.
    h. This section applies to the largest college and university 
recipients of Federal research and development funds as displayed in 
Exhibit A, List of Colleges and Universities Subject to Section J.14.h 
of this Appendix.
    (1) Institutions shall expend currently, or reserve for expenditure 
within the next five years, the portion of F&A cost payments made for 
depreciation or use allowances under sponsored research agreements, 
consistent with Section F.2 of this Appendix, to acquire or improve 
research facilities. This

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provision applies only to Federal agreements, which reimburse F&A costs 
at a full negotiated rate. These funds may only be used for liquidation 
of the principal of debts incurred to acquire assets that are used 
directly for organized research activities, or payments to acquire, 
repair, renovate, or improve buildings or equipment directly used for 
organized research. For buildings or equipment not exclusively used for 
organized research activity, only appropriately proportionate amounts 
will be considered to have been expended for research facilities.
    (2) An assurance that an amount equal to the Federal reimbursements 
has been appropriately expended or reserved to acquire or improve 
research facilities shall be submitted as part of each F&A cost proposal 
submitted to the cognizant Federal agency which is based on costs 
incurred on or after October 1, 1991. This assurance will cover the 
cumulative amounts of funds received and expended during the period 
beginning after the period covered by the previous assurance and ending 
with the fiscal year on which the proposal is based. The assurance shall 
also cover any amounts reserved from a prior period in which the funds 
received exceeded the amounts expended.
    15. Donations and contributions.
    a. Contributions or Donations rendered.
    Contributions or donations, including cash, property, and services, 
made by the institution, regardless of the recipient, are unallowable.
    b. Donated services received.
    Donated or volunteer services may be furnished to an institution by 
professional and technical personnel, consultants, and other skilled and 
unskilled labor. The value of these services is not reimbursable either 
as a direct or F&A cost. However, the value of donated services may be 
used to meet cost sharing or matching requirements in accordance with 2 
CFR Part 215.
    c. Donated property.
    The value of donated property is not reimbursable either as a direct 
or F&A cost, except that depreciation or use allowances on donated 
assets are permitted in accordance with Section J.14. The value of 
donated property may be used to meet cost sharing or matching 
requirements, in accordance with 2 CFR Part 215.
    16. Employee morale, health, and welfare costs and costs.
    a. The costs of employee information publications, health or first-
aid clinics and/or infirmaries, recreational activities, employee 
counseling services, and any other expenses incurred in accordance with 
the institution's established practice or custom for the improvement of 
working conditions, employer-employee relations, employee morale, and 
employee performance are allowable.
    b. Such costs will be equitably apportioned to all activities of the 
institution. Income generated from any of these activities will be 
credited to the cost thereof unless such income has been irrevocably set 
over to employee welfare organizations.
    c. Losses resulting from operating food services are allowable only 
if the institution's objective is to operate such services on a break-
even basis. Losses sustained because of operating objectives other than 
the above are allowable only where the institution can demonstrate 
unusual circumstances, and with the approval of the cognizant Federal 
agency.
    17. Entertainment costs.
    Costs of entertainment, including amusement, diversion, and social 
activities and any costs directly associated with such costs (such as 
tickets to shows or sports events, meals, lodging, rentals, 
transportation, and gratuities) are unallowable.
    18. Equipment and other capital expenditures.
    a. For purposes of this subsection, the following definitions apply:
    (1) ``Capital Expenditures'' means expenditures for the acquisition 
cost of capital assets (equipment, buildings, and land), or expenditures 
to make improvements to capital assets that materially increase their 
value or useful life. Acquisition cost means the cost of the asset 
including the cost to put it in place. Acquisition cost for equipment, 
for example, means the net invoice price of the equipment, including the 
cost of any modifications, attachments, accessories, or auxiliary 
apparatus necessary to make it usable for the purpose for which it is 
acquired. Ancillary charges, such as taxes, duty, protective in transit 
insurance, freight, and installation may be included in, or excluded 
from the acquisition cost in accordance with the institution's regular 
accounting practices.
    (2) ``Equipment'' means an article of nonexpendable, tangible 
personal property having a useful life of more than one year and an 
acquisition cost which equals or exceeds the lesser of the 
capitalization level established by the institution for financial 
statement purposes, or $5000.
    (3) ``Special purpose equipment'' means equipment which is used only 
for research, medical, scientific, or other technical activities. 
Examples of special purpose equipment include microscopes, x-ray 
machines, surgical instruments, and spectrometers.
    (4) ``General purpose equipment'' means equipment, which is not 
limited to research, medical, scientific or other technical activities. 
Examples include office equipment and furnishings, modular offices, 
telephone networks, information technology equipment and systems, air 
conditioning equipment, reproduction and printing equipment, and motor 
vehicles.
    b. The following rules of allowability shall apply to equipment and 
other capital expenditures:

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    (1) Capital expenditures for general purpose equipment, buildings, 
and land are unallowable as direct charges, except where approved in 
advance by the awarding agency.
    (2) Capital expenditures for special purpose equipment are allowable 
as direct costs, provided that items with a unit cost of $5000 or more 
have the prior approval of the awarding agency.
    (3) Capital expenditures for improvements to land, buildings, or 
equipment which materially increase their value or useful life are 
unallowable as a direct cost except with the prior approval of the 
awarding agency.
    (4) When approved as a direct charge pursuant to subsections 
J.18.b(1) through (3) of this Appendix, capital expenditures will be 
charged in the period in which the expenditure is incurred, or as 
otherwise determined appropriate by and negotiated with the awarding 
agency.
    (5) Equipment and other capital expenditures are unallowable as 
indirect costs. However, see section J.14 of this Appendix, Depreciation 
and use allowances, for rules on the allowability of use allowances or 
depreciation on buildings, capital improvements, and equipment. Also, 
see section J.43 of this Appendix, Rental costs of buildings and 
equipment, for rules on the allowability of rental costs for land, 
buildings, and equipment.
    (6) The unamortized portion of any equipment written off as a result 
of a change in capitalization levels may be recovered by continuing to 
claim the otherwise allowable use allowances or depreciation on the 
equipment, or by amortizing the amount to be written off over a period 
of years negotiated with the cognizant agency.
    19. Fines and penalties.
    Costs resulting from violations of, or failure of the institution to 
comply with, Federal, State, and local or foreign laws and regulations 
are unallowable, except when incurred as a result of compliance with 
specific provisions of the sponsored agreement, or instructions in 
writing from the authorized official of the sponsoring agency 
authorizing in advance such payments.
    20. Fund raising and investment costs.
    a. Costs of organized fund raising, including financial campaigns, 
endowment drives, solicitation of gifts and bequests, and similar 
expenses incurred solely to raise capital or obtain contributions, are 
unallowable.
    b. Costs of investment counsel and staff and similar expenses 
incurred solely to enhance income from investments are unallowable.
    c. Costs related to the physical custody and control of monies and 
securities are allowable.
    21. Gain and losses on depreciable assets.
    a. (1) Gains and losses on the sale, retirement, or other 
disposition of depreciable property shall be included in the year in 
which they occur as credits or charges to the asset cost grouping(s) in 
which the property was included. The amount of the gain or loss to be 
included as a credit or charge to the appropriate asset cost grouping(s) 
shall be the difference between the amount realized on the property and 
the undepreciated basis of the property.
    (2) Gains and losses on the disposition of depreciable property 
shall not be recognized as a separate credit or charge under the 
following conditions:
    (a) The gain or loss is processed through a depreciation account and 
is reflected in the depreciation allowable under Section J.14 of this 
Appendix.
    (b) The property is given in exchange as part of the purchase price 
of a similar item and the gain or loss is taken into account in 
determining the depreciation cost basis of the new item.
    (c) A loss results from the failure to maintain permissible 
insurance, except as otherwise provided in Section J.25 of this 
Appendix.
    (d) Compensation for the use of the property was provided through 
use allowances in lieu of depreciation.
    b. Gains or losses of any nature arising from the sale or exchange 
of property other than the property covered in subsection a shall be 
excluded in computing sponsored agreement costs.
    c. When assets acquired with Federal funds, in part or wholly, are 
disposed of, the distribution of the proceeds shall be made in 
accordance with 2 CFR Part 215, Uniform Administrative Requirements for 
Grants and Agreements with Institutions of Higher Education, Hospitals, 
and Other Non-Profit Organizations (OMB Circular A-110).
    22. Goods or services for personal use.
    Costs of goods or services for personal use of the institution's 
employees are unallowable regardless of whether the cost is reported as 
taxable income to the employees.
    23. Housing and personal living expenses.
    a. Costs of housing (e.g., depreciation, maintenance, utilities, 
furnishings, rent, etc.), housing allowances and personal living 
expenses for/of the institution's officers are unallowable regardless of 
whether the cost is reported as taxable income to the employees.
    b. The term ``officers'' includes current and past officers.
    24. Idle facilities and idle capacity.
    a. As used in this section the following terms have the meanings set 
forth below:
    (1) ``Facilities'' means land and buildings or any portion thereof, 
equipment individually or collectively, or any other tangible capital 
asset, wherever located, and whether owned or leased by the institution.
    (2) ``Idle facilities'' means completely unused facilities that are 
excess to the institution's current needs.

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    (3) ``Idle capacity'' means the unused capacity of partially used 
facilities. It is the difference between:
    (a) That which a facility could achieve under 100 percent operating 
time on a one-shift basis less operating interruptions resulting from 
time lost for repairs, setups, unsatisfactory materials, and other 
normal delays; and
    (b) The extent to which the facility was actually used to meet 
demands during the accounting period. A multi-shift basis should be used 
if it can be shown that this amount of usage would normally be expected 
for the type of facility involved.
    (4) ``Cost of idle facilities or idle capacity'' means costs such as 
maintenance, repair, housing, rent, and other related costs, e.g., 
insurance, interest, property taxes and depreciation or use allowances.
    b. The costs of idle facilities are unallowable except to the extent 
that:
    (1) They are necessary to meet fluctuations in workload; or
    (2) Although not necessary to meet fluctuations in workload, they 
were necessary when acquired and are now idle because of changes in 
program requirements, efforts to achieve more economical operations, 
reorganization, termination, or other causes which could not have been 
reasonably foreseen. Under the exception stated in this subsection, 
costs of idle facilities are allowable for a reasonable period of time, 
ordinarily not to exceed one year, depending on the initiative taken to 
use, lease, or dispose of such facilities.
    c. The costs of idle capacity are normal costs of doing business and 
are a factor in the normal fluctuations of usage or indirect cost rates 
from period to period. Such costs are allowable, provided that the 
capacity is reasonably anticipated to be necessary or was originally 
reasonable and is not subject to reduction or elimination by use on 
other sponsored agreements, subletting, renting, or sale, in accordance 
with sound business, economic, or security practices. Widespread idle 
capacity throughout an entire facility or among a group of assets having 
substantially the same function may be considered idle facilities.
    25. Insurance and indemnification.
    a. Costs of insurance required or approved, and maintained, pursuant 
to the sponsored agreement, are allowable.
    b. Costs of other insurance maintained by the institution in 
connection with the general conduct of its activities, are allowable 
subject to the following limitations:
    (1) Types and extent and cost of coverage must be in accordance with 
sound institutional practice;
    (2) Costs of insurance or of any contributions to any reserve 
covering the risk of loss of or damage to federally-owned property are 
unallowable, except to the extent that the Federal Government has 
specifically required or approved such costs; and
    (3) Costs of insurance on the lives of officers or trustees are 
unallowable except where such insurance is part of an employee plan 
which is not unduly restricted.
    c. Contributions to a reserve for a self-insurance program are 
allowable, to the extent that the types of coverage, extent of coverage, 
and the rates and premiums would have been allowed had insurance been 
purchased to cover the risks.
    d. Actual losses which could have been covered by permissible 
insurance (whether through purchased insurance or self-insurance) are 
unallowable, unless expressly provided for in the sponsored agreement, 
except that costs incurred because of losses not covered under existing 
deductible clauses for insurance coverage provided in keeping with sound 
management practice as well as minor losses not covered by insurance, 
such as spoilage, breakage and disappearance of small hand tools, which 
occur in the ordinary course of operations, are allowable.
    e. Indemnification includes securing the institution against 
liabilities to third persons and other losses not compensated by 
insurance or otherwise. The Federal Government is obligated to indemnify 
the institution only to the extent expressly provided for in the 
sponsored agreement, except as provided in subsection J.25.d of this 
Appendix.
    f. Insurance against defects. Costs of insurance with respect to any 
costs incurred to correct defects in the institution's materials or 
workmanship are unallowable.
    g. Medical liability (malpractice) insurance is an allowable cost of 
research programs only to the extent that the research involves human 
subjects. Medical liability insurance costs shall be treated as a direct 
cost and shall be assigned to individual projects based on the manner in 
which the insurer allocates the risk to the population covered by the 
insurance.
    26. Interest.
    a. Costs incurred for interest on borrowed capital, temporary use of 
endowment funds, or the use of the institution's own funds, however 
represented, are unallowable. However, interest on debt incurred after 
July 1, 1982 to acquire buildings, major reconstruction and remodeling, 
or the acquisition or fabrication of capital equipment costing $10,000 
or more, is allowable.
    b. Interest on debt incurred after May 8, 1996 to acquire or replace 
capital assets (including construction, renovations, alterations, 
equipment, land, and capital assets acquired through capital leases) 
acquired after that date and used in support of sponsored agreements is 
allowable, subject to the following conditions:
    (1) For facilities costing over $500,000, the institution shall 
prepare, prior to acquisition

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or replacement of the facility, a lease-purchase analysis in accordance 
with the provisions of Sec. Sec. 215.30 through 215.37 of 2 CFR part 
215 (OMB Circular A-110), which shows that a financed purchase, 
including a capital lease is less costly to the institution than other 
operating lease alternatives, on a net present value basis. Discount 
rates used shall be equal to the institution's anticipated interest 
rates and shall be no higher than the fair market rate available to the 
institution from an unrelated (``arm's length'') third-party. The lease-
purchase analysis shall include a comparison of the net present value of 
the projected total cost comparisons of both alternatives over the 
period the asset is expected to be used by the institution. The cost 
comparisons associated with purchasing the facility shall include the 
estimated purchase price, anticipated operating and maintenance costs 
(including property taxes, if applicable) not included in the debt 
financing, less any estimated asset salvage value at the end of the 
defined period. The cost comparison for a capital lease shall include 
the estimated total lease payments, any estimated bargain purchase 
option, operating and maintenance costs, and taxes not included in the 
capital leasing arrangement, less any estimated credits due under the 
lease at the end of the defined period. Projected operating lease costs 
shall be based on the anticipated cost of leasing comparable facilities 
at fair market rates under rental agreements that would be renewed or 
reestablished over the period defined above, and any expected 
maintenance costs and allowable property taxes to be borne by the 
institution directly or as part of the lease arrangement.
    (2) The actual interest cost claimed is predicated upon interest 
rates that are no higher than the fair market rate available to the 
institution from an unrelated (arm's length) third party.
    (3) Investment earnings, including interest income on bond or loan 
principal, pending payment of the construction or acquisition costs, are 
used to offset allowable interest cost. Arbitrage earnings reportable to 
the Internal Revenue Service are not required to be offset against 
allowable interest costs.
    (4) Reimbursements are limited to the least costly alternative based 
on the total cost analysis required under subsection J.26.b.(1) of this 
Appendix. For example, if an operating lease is determined to be less 
costly than purchasing through debt financing, then reimbursement is 
limited to the amount determined if leasing had been used. In all cases 
where a lease-purchase analysis is required to be performed, Federal 
reimbursement shall be based upon the least expensive alternative.
    (5) For debt arrangements over $1 million, unless the institution 
makes an initial equity contribution to the asset purchase of 25 percent 
or more, the institution shall reduce claims for interest expense by an 
amount equal to imputed interest earnings on excess cash flow, which is 
to be calculated as follows. Annually, non-Federal entities shall 
prepare a cumulative (from the inception of the project) report of 
monthly cash flows that includes inflows and outflows, regardless of the 
funding source. Inflows consist of depreciation expense, amortization of 
capitalized construction interest, and annual interest cost. For cash 
flow calculations, the annual inflow figures shall be divided by the 
number of months in the year (i.e., usually 12) that the building is in 
service for monthly amounts. Outflows consist of initial equity 
contributions, debt principal payments (less the pro rata share 
attributable to the unallowable costs of land) and interest payments. 
Where cumulative inflows exceed cumulative outflows, interest shall be 
calculated on the excess inflows for that period and be treated as a 
reduction to allowable interest cost. The rate of interest to be used to 
compute earnings on excess cash flows shall be the three-month Treasury 
bill closing rate as of the last business day of that month.
    (6) Substantial relocation of federally-sponsored activities from a 
facility financed by indebtedness, the cost of which was funded in whole 
or part through Federal reimbursements, to another facility prior to the 
expiration of a period of 20 years requires notice to the cognizant 
agency. The extent of the relocation, the amount of the Federal 
participation in the financing, and the depreciation and interest 
charged to date may require negotiation and/or downward adjustments of 
replacement space charged to Federal programs in the future.
    (7) The allowable costs to acquire facilities and equipment are 
limited to a fair market value available to the institution from an 
unrelated (arm's length) third party.
    c. Institutions are also subject to the following conditions:
    (1) Interest on debt incurred to finance or refinance assets re-
acquired after the applicable effective dates stipulated above is 
unallowable.
    (2) Interest attributable to fully depreciated assets is 
unallowable.
    d. The following definitions are to be used for purposes of this 
section:
    (1) ``Re-acquired'' assets means assets held by the institution 
prior to the applicable effective dates stipulated above that have again 
come to be held by the institution, whether through repurchase or 
refinancing. It does not include assets acquired to replace older 
assets.
    (2) ``Initial equity contribution'' means the amount or value of 
contributions made by non-Federal entities for the acquisition of the 
asset prior to occupancy of facilities.

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    (3) ``Asset costs'' means the capitalizable costs of an asset, 
including construction costs, acquisition costs, and other such costs 
capitalized in accordance with Generally Accepted Accounting Principles 
(GAAP).
    27. Labor relations costs.
    Costs incurred in maintaining satisfactory relations between the 
institution and its employees, including costs of labor management 
committees, employees' publications, and other related activities, are 
allowable.
    28. Lobbying.
    Reference is made to the common rule published at 7 CFR part 3018, 
10 CFR parts 600 and 601, 12 CFR part 411, 13 CFR part 146, 14 CFR part 
1271, 15 CFR part 28, 18 CFR part 1315, 22 CFR parts 138, 227, 311, 519 
and 712, 24 CFR part 87, 28 CFR part 69, 29 CFR part 93, 31 CFR part 21, 
32 CFR part 282, 34 CFR part 82, 38 CFR part 85, 40 CFR part 34, 41 CFR 
part 105-69, 43 CFR part 18, 44 CFR part 18, 45 CFR parts 93, 604, 1158, 
1168 and 1230, and 49 CFR part 20, and OMB's governmentwide guidance, 
amendments to OMB's governmentwide guidance, and OMB's clarification 
notices published at 54 FR 52306 (12/20/89), 61 FR 1412 (1/19/96), 55 FR 
24540 (6/15/90) and 57 FR 1772 (1/15/92), respectively. In addition, the 
following restrictions shall apply:
    a. Notwithstanding other provisions of this Appendix, costs 
associated with the following activities are unallowable:
    (1) Attempts to influence the outcomes of any Federal, State, or 
local election, referendum, initiative, or similar procedure, through in 
kind or cash contributions, endorsements, publicity, or similar 
activity;
    (2) Establishing, administering, contributing to, or paying the 
expenses of a political party, campaign, political action committee, or 
other organization established for the purpose of influencing the 
outcomes of elections;
    (3) Any attempt to influence The introduction of Federal or State 
legislation; The enactment or modification of any pending Federal or 
State legislation through communication with any member or employee of 
the Congress or State legislature, including efforts to influence State 
or local officials to engage in similar lobbying activity; or any 
government official or employee in connection with a decision to sign or 
veto enrolled legislation;
    (4) Any attempt to influence The introduction of Federal or State 
legislation; or The enactment or modification of any pending Federal or 
State legislation by preparing, distributing, or using publicity or 
propaganda, or by urging members of the general public, or any segment 
thereof, to contribute to or participate in any mass demonstration, 
march, rally, fund raising drive, lobbying campaign or letter writing or 
telephone campaign; or
    (5) Legislative liaison activities, including attendance at 
legislative sessions or committee hearings, gathering information 
regarding legislation, and analyzing the effect of legislation, when 
such activities are carried on in support of or in knowing preparation 
for an effort to engage in unallowable lobbying.
    b. The following activities are excepted from the coverage of 
subsection J.28.a of this Appendix:
    (1) Technical and factual presentations on topics directly related 
to the performance of a grant, contract, or other agreement (through 
hearing testimony, statements, or letters to the Congress or a State 
legislature, or subdivision, member, or cognizant staff member thereof), 
in response to a documented request (including a Congressional Record 
notice requesting testimony or statements for the record at a regularly 
scheduled hearing) made by the recipient member, legislative body or 
subdivision, or a cognizant staff member thereof, provided such 
information is readily obtainable and can be readily put in deliverable 
form, and further provided that costs under this section for travel, 
lodging or meals are unallowable unless incurred to offer testimony at a 
regularly scheduled Congressional hearing pursuant to a written request 
for such presentation made by the Chairman or Ranking Minority Member of 
the Committee or Subcommittee conducting such hearings;
    (2) Any lobbying made unallowable by subsection J.28.a.(3) of this 
Appendix to influence State legislation in order to directly reduce the 
cost, or to avoid material impairment of the institution's authority to 
perform the grant, contract, or other agreement; or
    (3) Any activity specifically authorized by statute to be undertaken 
with funds from the grant, contract, or other agreement.
    c. When an institution seeks reimbursement for F&A costs, total 
lobbying costs shall be separately identified in the F&A cost rate 
proposal, and thereafter treated as other unallowable activity costs in 
accordance with the procedures of Section B.1.d of this Appendix.
    d. Institutions shall submit as part of their annual F&A cost rate 
proposal a certification that the requirements and standards of this 
section have been complied with.
    e. Institutions shall maintain adequate records to demonstrate that 
the determination of costs as being allowable or unallowable pursuant to 
this section complies with the requirements of this Appendix.
    f. Time logs, calendars, or similar records shall not be required to 
be created for purposes of complying with this section during any 
particular calendar month when:
    (1) the employee engages in lobbying (as defined in subsections 
J.28.a and b of this Appendix) 25 percent or less of the employee's 
compensated hours of employment during that calendar month; and

[[Page 138]]

    (2) within the preceding five-year period, the institution has not 
materially misstated allowable or unallowable costs of any nature, 
including legislative lobbying costs. When conditions in subsections 
J.28.f.(1) and (2) of this Appendix are met, institutions are not 
required to establish records to support the allowability of claimed 
costs in addition to records already required or maintained. Also, when 
conditions in subsections J.28.f. (1) and (2) of this Appendix are met, 
the absence of time logs, calendars, or similar records will not serve 
as a basis for disallowing costs by contesting estimates of lobbying 
time spent by employees during a calendar month.
    g. Agencies shall establish procedures for resolving in advance, in 
consultation with OMB, any significant questions or disagreements 
concerning the interpretation or application of this section. Any such 
advance resolutions shall be binding in any subsequent settlements, 
audits, or investigations with respect to that grant or contract for 
purposes of interpretation of this Appendix, provided, however, that 
this shall not be construed to prevent a contractor or grantee from 
contesting the lawfulness of such a determination.
    h. Executive lobbying costs.
    Costs incurred in attempting to improperly influence either directly 
or indirectly, an employee or officer of the Executive Branch of the 
Federal Government to give consideration or to act regarding a sponsored 
agreement or a regulatory matter are unallowable. Improper influence 
means any influence that induces or tends to induce a Federal employee 
or officer to give consideration or to act regarding a federally-
sponsored agreement or regulatory matter on any basis other than the 
merits of the matter.
    29. Losses on other sponsored agreements or contracts.
    Any excess of costs over income under any other sponsored agreement 
or contract of any nature is unallowable. This includes, but is not 
limited to, the institution's contributed portion by reason of cost-
sharing agreements or any under-recoveries through negotiation of flat 
amounts for F&A costs.
    30. Maintenance and repair costs.
    Costs incurred for necessary maintenance, repair, or upkeep of 
buildings and equipment (including Federal property unless otherwise 
provided for) which neither add to the permanent value of the property 
nor appreciably prolong its intended life, but keep it in an efficient 
operating condition, are allowable. Costs incurred for improvements 
which add to the permanent value of the buildings and equipment or 
appreciably prolong their intended life shall be treated as capital 
expenditures (see section J.18.a(1) of this Appendix).
    31. Material and supplies costs.
    a. Costs incurred for materials, supplies, and fabricated parts 
necessary to carry out a sponsored agreement are allowable.
    b. Purchased materials and supplies shall be charged at their actual 
prices, net of applicable credits. Withdrawals from general stores or 
stockrooms should be charged at their actual net cost under any 
recognized method of pricing inventory withdrawals, consistently 
applied. Incoming transportation charges are a proper part of materials 
and supplies costs.
    c. Only materials and supplies actually used for the performance of 
a sponsored agreement may be charged as direct costs.
    d. Where federally-donated or furnished materials are used in 
performing the sponsored agreement, such materials will be used without 
charge.
    32. Meetings and Conferences.
    Costs of meetings and conferences, the primary purpose of which is 
the dissemination of technical information, are allowable. This includes 
costs of meals, transportation, rental of facilities, speakers' fees, 
and other items incidental to such meetings or conferences. But see 
section J.17 of this Appendix, Entertainment costs.
    33. Memberships, subscriptions and professional activity costs.
    a. Costs of the institution's membership in business, technical, and 
professional organizations are allowable.
    b. Costs of the institution's subscriptions to business, 
professional, and technical periodicals are allowable.
    c. Costs of membership in any civic or community organization are 
unallowable.
    d. Costs of membership in any country club or social or dining club 
or organization are unallowable.
    34. Patent costs.
    a. The following costs relating to patent and copyright matters are 
allowable:
    (1) Cost of preparing disclosures, reports, and other documents 
required by the sponsored agreement and of searching the art to the 
extent necessary to make such disclosures;
    (2) Cost of preparing documents and any other patent costs in 
connection with the filing and prosecution of a United States patent 
application where title or royalty-free license is required by the 
Federal Government to be conveyed to the Federal Government; and
    (3) General counseling services relating to patent and copyright 
matters, such as advice on patent and copyright laws, regulations, 
clauses, and employee agreements (but see sections J.37, Professional 
service costs, and J.44, Royalties and other costs for use of patents, 
of this Appendix).
    b. The following costs related to patent and copyright matter are 
unallowable:
    (1) Cost of preparing disclosures, reports, and other documents and 
of searching the

[[Page 139]]

art to the extent necessary to make disclosures not required by the 
award
    (2) Costs in connection with filing and prosecuting any foreign 
patent application, or any United States patent application, where the 
sponsored agreement award does not require conveying title or a royalty-
free license to the Federal Government, (but see section J.44, Royalties 
and other costs for use of patents, of this Appendix).
    35. Plant and homeland security costs.
    Necessary and reasonable expenses incurred for routine and homeland 
security to protect facilities, personnel, and work products are 
allowable. Such costs include, but are not limited to, wages and 
uniforms of personnel engaged in security activities; equipment; 
barriers; contractual security services; consultants; etc. Capital 
expenditures for homeland and plant security purposes are subject to 
section J.18, Equipment and other capital expenditures, of this 
Appendix.
    36. Preagreement costs. Costs incurred prior to the effective date 
of the sponsored agreement, whether or not they would have been 
allowable thereunder if incurred after such date, are unallowable unless 
approved by the sponsoring agency.
    37. Professional service costs.
    a. Costs of professional and consultant services rendered by persons 
who are members of a particular profession or possess a special skill, 
and who are not officers or employees of the institution, are allowable, 
subject to subparagraphs J.37.b and c of this Appendix when reasonable 
in relation to the services rendered and when not contingent upon 
recovery of the costs from the Federal Government. In addition, legal 
and related services are limited under section J.13 of this Appendix.
    b. In determining the allowability of costs in a particular case, no 
single factor or any special combination of factors is necessarily 
determinative. However, the following factors are relevant:
    (1) The nature and scope of the service rendered in relation to the 
service required.
    (2) The necessity of contracting for the service, considering the 
institution's capability in the particular area.
    (3) The past pattern of such costs, particularly in the years prior 
to sponsored agreements.
    (4) The impact on the institution's business (i.e., what new 
problems have arisen).
    (5) Whether the proportion of Federal work to the institution's 
total business is such as to influence the institution in favor of 
incurring the cost, particularly where the services rendered are not of 
a continuing nature and have little relationship to work under Federal 
grants and contracts.
    (6) Whether the service can be performed more economically by direct 
employment rather than contracting.
    (7) The qualifications of the individual or concern rendering the 
service and the customary fees charged, especially on non-sponsored 
agreements.
    (8) Adequacy of the contractual agreement for the service (e.g., 
description of the service, estimate of time required, rate of 
compensation, and termination provisions).
    c. In addition to the factors in subparagraph J.37.b of this 
Appendix, retainer fees to be allowable must be supported by evidence of 
bona fide services available or rendered.
    38. Proposal costs.
    Proposal costs are the costs of preparing bids or proposals on 
potential federally and non-federally-funded sponsored agreements or 
projects, including the development of data necessary to support the 
institution's bids or proposals. Proposal costs of the current 
accounting period of both successful and unsuccessful bids and proposals 
normally should be treated as F&A costs and allocated currently to all 
activities of the institution, and no proposal costs of past accounting 
periods will be allocable to the current period. However, the 
institution's established practices may be to treat proposal costs by 
some other recognized method. Regardless of the method used, the results 
obtained may be accepted only if found to be reasonable and equitable.
    39. Publication and printing costs.
    a. Publication costs include the costs of printing (including the 
processes of composition, plate-making, press work, binding, and the end 
products produced by such processes), distribution, promotion, mailing, 
and general handling. Publication costs also include page charges in 
professional publications.
    b. If these costs are not identifiable with a particular cost 
objective, they should be allocated as indirect costs to all benefiting 
activities of the institution.
    c. Page charges for professional journal publications are allowable 
as a necessary part of research costs where:
    (1) The research papers report work supported by the Federal 
Government: and
    (2) The charges are levied impartially on all research papers 
published by the journal, whether or not by federally-sponsored authors.
    40. Rearrangement and alteration costs.
    Costs incurred for ordinary or normal rearrangement and alteration 
of facilities are allowable. Special arrangement and alteration costs 
incurred specifically for the project are allowable with the prior 
approval of the sponsoring agency.
    41. Reconversion costs.

[[Page 140]]

    Costs incurred in the restoration or rehabilitation of the 
institution's facilities to approximately the same condition existing 
immediately prior to commencement of a sponsored agreement, fair wear 
and tear excepted, are allowable.
    42. Recruiting costs.
    a. Subject to subsections J.42.b, c, and d of this Appendix, and 
provided that the size of the staff recruited and maintained is in 
keeping with workload requirements, costs of ``help wanted'' 
advertising, operating costs of an employment office necessary to secure 
and maintain an adequate staff, costs of operating an aptitude and 
educational testing program, travel costs of employees while engaged in 
recruiting personnel, travel costs of applicants for interviews for 
prospective employment, and relocation costs incurred incident to 
recruitment of new employees, are allowable to the extent that such 
costs are incurred pursuant to a well-managed recruitment program. Where 
the institution uses employment agencies, costs not in excess of 
standard commercial rates for such services are allowable.
    b. In publications, costs of help wanted advertising that includes 
color, includes advertising material for other than recruitment 
purposes, or is excessive in size (taking into consideration recruitment 
purposes for which intended and normal institutional practices in this 
respect), are unallowable.
    c. Costs of help wanted advertising, special emoluments, fringe 
benefits, and salary allowances incurred to attract professional 
personnel from other institutions that do not meet the test of 
reasonableness or do not conform with the established practices of the 
institution, are unallowable.
    d. Where relocation costs incurred incident to recruitment of a new 
employee have been allowed either as an allocable direct or F&A cost, 
and the newly hired employee resigns for reasons within his control 
within 12 months after hire, the institution will be required to refund 
or credit such relocation costs to the Federal Government.
    43. Rental costs of buildings and equipment.
    a. Subject to the limitations described in subsections b. through d. 
of this section, rental costs are allowable to the extent that the rates 
are reasonable in light of such factors as: rental costs of comparable 
property, if any; market conditions in the area; alternatives available; 
and, the type, life expectancy, condition, and value of the property 
leased. Rental arrangements should be reviewed periodically to determine 
if circumstances have changed and other options are available.
    b. Rental costs under ``sale and lease back'' arrangements are 
allowable only up to the amount that would be allowed had the 
institution continued to own the property. This amount would include 
expenses such as depreciation or use allowance, maintenance, taxes, and 
insurance.
    c. Rental costs under ``less-than-arms-length'' leases are allowable 
only up to the amount (as explained in subsection J.43.b of this 
Appendix) that would be allowed had title to the property vested in the 
institution. For this purpose, a less-than-arms-length lease is one 
under which one party to the lease agreement is able to control or 
substantially influence the actions of the other. Such leases include, 
but are not limited to those between--
    (1) Divisions of an institution;
    (2) Non-Federal entities under common control through common 
officers, directors, or members; and
    (3) An institution and a director, trustee, officer, or key employee 
of the institution or his immediate family, either directly or through 
corporations, trusts, or similar arrangements in which they hold a 
controlling interest. For example, an institution may establish a 
separate corporation for the sole purpose of owning property and leasing 
it back to the institution.
    d. Rental costs under leases which are required to be treated as 
capital leases under GAAP are allowable only up to the amount (as 
explained in subsection J.43.b of this Appendix) that would be allowed 
had the institution purchased the property on the date the lease 
agreement was executed. The provisions of Financial Accounting Standards 
Board Statement 13, Accounting for Leases, shall be used to determine 
whether a lease is a capital lease. Interest costs related to capital 
leases are allowable to the extent they meet the criteria in section 
J.26 of this Appendix. Unallowable costs include amounts paid for 
profit, management fees, and taxes that would not have been incurred had 
the institution purchased the facility.
    44. Royalties and other costs for use of patents.
    a. Royalties on a patent or copyright or amortization of the cost of 
acquiring by purchase a copyright, patent, or rights thereto, necessary 
for the proper performance of the award are allowable unless:
    (1) The Federal Government has a license or the right to free use of 
the patent or copyright.
    (2) The patent or copyright has been adjudicated to be invalid, or 
has been administratively determined to be invalid.
    (3) The patent or copyright is considered to be unenforceable.
    (4) The patent or copyright is expired.
    b. Special care should be exercised in determining reasonableness 
where the royalties may have been arrived at as a result of less-than-
arm's-length bargaining, e.g.:
    (1) Royalties paid to persons, including corporations, affiliated 
with the institution.
    (2) Royalties paid to unaffiliated parties, including corporations, 
under an agreement

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entered into in contemplation that a sponsored agreement award would be 
made.
    (3) Royalties paid under an agreement entered into after an award is 
made to an institution.
    c. In any case involving a patent or copyright formerly owned by the 
institution, the amount of royalty allowed should not exceed the cost 
which would have been allowed had the institution retained title 
thereto.
    45. Scholarships and student aid costs.
    a. Costs of scholarships, fellowships, and other programs of student 
aid are allowable only when the purpose of the sponsored agreement is to 
provide training to selected participants and the charge is approved by 
the sponsoring agency. However, tuition remission and other forms of 
compensation paid as, or in lieu of, wages to students performing 
necessary work are allowable provided that--
    (1) The individual is conducting activities necessary to the 
sponsored agreement;
    (2) Tuition remission and other support are provided in accordance 
with established educational institutional policy and consistently 
provided in a like manner to students in return for similar activities 
conducted in nonsponsored as well as sponsored activities; and
    (3) During the academic period, the student is enrolled in an 
advanced degree program at the institution or affiliated institution and 
the activities of the student in relation to the Federally-sponsored 
research project are related to the degree program;
    (4) The tuition or other payments are reasonable compensation for 
the work performed and are conditioned explicitly upon the performance 
of necessary work; and
    (5) It is the institution's practice to similarly compensate 
students in nonsponsored as well as sponsored activities.
    b. Charges for tuition remission and other forms of compensation 
paid to students as, or in lieu of, salaries and wages shall be subject 
to the reporting requirements stipulated in Section J.10 of this 
Appendix, and shall be treated as direct or F&A cost in accordance with 
the actual work being performed. Tuition remission may be charged on an 
average rate basis.
    46. Selling and marketing.
    Costs of selling and marketing any products or services of the 
institution are unallowable (unless allowed under subsection J.1 of this 
Appendix as allowable public relations costs or under subsection J.38 of 
this Appendix as allowable proposal costs).
    47. Specialized service facilities.
    a. The costs of services provided by highly complex or specialized 
facilities operated by the institution, such as computers, wind tunnels, 
and reactors are allowable, provided the charges for the services meet 
the conditions of either subsection J.47.b. or 47.c. of this Appendix 
and, in addition, take into account any items of income or Federal 
financing that qualify as applicable credits under subsection C.5. of 
this Appendix.
    b. The costs of such services, when material, must be charged 
directly to applicable awards based on actual usage of the services on 
the basis of a schedule of rates or established methodology that:
    (1) Does not discriminate against federally-supported activities of 
the institution, including usage by the institution for internal 
purposes, and
    (2) Is designed to recover only the aggregate costs of the services. 
The costs of each service shall consist normally of both its direct 
costs and its allocable share of all F&A costs. Rates shall be adjusted 
at least biennially, and shall take into consideration over/under 
applied costs of the previous period(s).
    c. Where the costs incurred for a service are not material, they may 
be allocated as F&A costs.
    d. Under some extraordinary circumstances, where it is in the best 
interest of the Federal Government and the institution to establish 
alternative costing arrangements, such arrangements may be worked out 
with the cognizant Federal agency.
    48. Student activity costs.
    Costs incurred for intramural activities, student publications, 
student clubs, and other student activities, are unallowable, unless 
specifically provided for in the sponsored agreements.
    49. Taxes.
    a. In general, taxes which the institution is required to pay and 
which are paid or accrued in accordance with generally accepted 
accounting principles are allowable. Payments made to local governments 
in lieu of taxes which are commensurate with the local government 
services received are allowable, except for--
    (1) Taxes from which exemptions are available to the institution 
directly or which are available to the institution based on an exemption 
afforded the Federal Government, and in the latter case when the 
sponsoring agency makes available the necessary exemption certificates; 
and
    (2) Special assessments on land which represent capital 
improvements.
    b. Any refund of taxes, interest, or penalties, and any payment to 
the institution of interest thereon, attributable to taxes, interest, or 
penalties which were allowed as sponsored agreement costs, will be 
credited or paid to the Federal Government in the manner directed by the 
Federal Government. However, any interest actually paid or credited to 
an institution incident to a refund of tax, interest, and penalty will 
be paid or credited to the Federal Government only to the extent that 
such interest accrued over the period during which the institution has 
been reimbursed by the Federal Government for the taxes, interest, and 
penalties.

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    50. Termination costs applicable to sponsored agreements.
    Termination of awards generally gives rise to the incurrence of 
costs, or the need for special treatment of costs, which would not have 
arisen had the sponsored agreement not been terminated. Cost principles 
covering these items are set forth below. They are to be used in 
conjunction with the other provisions of this Appendix in termination 
situations.
    a. The cost of items reasonably usable on the institution's other 
work shall not be allowable unless the institution submits evidence that 
it would not retain such items at cost without sustaining a loss. In 
deciding whether such items are reasonably usable on other work of the 
institution, the awarding agency should consider the institution's plans 
and orders for current and scheduled activity. Contemporaneous purchases 
of common items by the institution shall be regarded as evidence that 
such items are reasonably usable on the institution's other work. Any 
acceptance of common items as allocable to the terminated portion of the 
sponsored agreement shall be limited to the extent that the quantities 
of such items on hand, in transit, and on order are in excess of the 
reasonable quantitative requirements of other work.
    b. If in a particular case, despite all reasonable efforts by the 
institution, certain costs cannot be discontinued immediately after the 
effective date of termination, such costs are generally allowable within 
the limitations set forth in this Appendix, except that any such costs 
continuing after termination due to the negligent or willful failure of 
the institution to discontinue such costs shall be unallowable.
    c. Loss of useful value of special tooling, machinery, and equipment 
is generally allowable if:
    (1) Such special tooling, special machinery, or equipment is not 
reasonably capable of use in the other work of the institution,
    (2) The interest of the Federal Government is protected by transfer 
of title or by other means deemed appropriate by the awarding agency, 
and
    (3) The loss of useful value for any one terminated sponsored 
agreement is limited to that portion of the acquisition cost which bears 
the same ratio to the total acquisition cost as the terminated portion 
of the sponsored agreement bears to the entire terminated sponsored 
agreement award and other sponsored agreements for which the special 
tooling, machinery, or equipment was acquired.
    d. Rental costs under unexpired leases are generally allowable where 
clearly shown to have been reasonably necessary for the performance of 
the terminated sponsored agreement less the residual value of such 
leases, if:
    (1) The amount of such rental claimed does not exceed the reasonable 
use value of the property leased for the period of the sponsored 
agreement and such further period as may be reasonable, and
    (2) The institution makes all reasonable efforts to terminate, 
assign, settle, or otherwise reduce the cost of such lease. There also 
may be included the cost of alterations of such leased property, 
provided such alterations were necessary for the performance of the 
sponsored agreement, and of reasonable restoration required by the 
provisions of the lease.
    e. Settlement expenses including the following are generally 
allowable:
    (1) Accounting, legal, clerical, and similar costs reasonably 
necessary for:
    (a) The preparation and presentation to the awarding agency of 
settlement claims and supporting data with respect to the terminated 
portion of the sponsored agreement, unless the termination is for 
default (see Sec. 215.61 of 2 CFR Part 215); and
    (b) The termination and settlement of subawards.
    (2) Reasonable costs for the storage, transportation, protection, 
and disposition of property provided by the Federal Government or 
acquired or produced for the sponsored agreement, except when 
institutions are reimbursed for disposals at a predetermined amount in 
accordance with Sec. 215.32 through Sec. 215.37 of 2 CFR Part 215.
    (3) F&A costs related to salaries and wages incurred as settlement 
expenses in subsections J.50.b.(1) and (2) of this Appendix. Normally, 
such F&A costs shall be limited to fringe benefits, occupancy cost, and 
immediate supervision.
    f. Claims under subawards, including the allocable portion of claims 
which are common to the sponsored agreement and to other work of the 
institution, are generally allowable.
    g. An appropriate share of the institution's F&A costs may be 
allocated to the amount of settlements with subcontractors and/or 
subgrantees, provided that the amount allocated is otherwise consistent 
with the basic guidelines contained in section E, F&A costs. The F&A 
costs so allocated shall exclude the same and similar costs claimed 
directly or indirectly as settlement expenses.
    51. Training costs.
    The cost of training provided for employee development is allowable.
    52. Transportation costs.
    Costs incurred for freight, express, cartage, postage, and other 
transportation services relating either to goods purchased, in process, 
or delivered, are allowable. When such costs can readily be identified 
with the items involved, they may be charged directly as transportation 
costs or added to the cost of such items. Where identification with the 
materials received cannot readily be made,

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inbound transportation cost may be charged to the appropriate F&A cost 
accounts if the institution follows a consistent, equitable procedure in 
this respect. Outbound freight, if reimbursable under the terms of the 
sponsored agreement, should be treated as a direct cost.
    53. Travel costs.
    a. General.
    Travel costs are the expenses for transportation, lodging, 
subsistence, and related items incurred by employees who are in travel 
status on official business of the institution. Such costs may be 
charged on an actual cost basis, on a per diem or mileage basis in lieu 
of actual costs incurred, or on a combination of the two, provided the 
method used is applied to an entire trip and not to selected days of the 
trip, and results in charges consistent with those normally allowed in 
like circumstances in the institution's non-federally-sponsored 
activities.
    b. Lodging and subsistence.
    Costs incurred by employees and officers for travel, including costs 
of lodging, other subsistence, and incidental expenses, shall be 
considered reasonable and allowable only to the extent such costs do not 
exceed charges normally allowed by the institution in its regular 
operations as the result of the institution's written travel policy. In 
the absence of an acceptable, written institution policy regarding 
travel costs, the rates and amounts established under subchapter I of 
Chapter 57, Title 5, United States Code (``Travel and Subsistence 
Expenses; Mileage Allowances''), or by the Administrator of General 
Services, or by the President (or his or her designee) pursuant to any 
provisions of such subchapter shall apply to travel under sponsored 
agreements (48 CFR 31.205-46(a)).
    c. Commercial air travel.
    (1) Airfare costs in excess of the customary standard commercial 
airfare (coach or equivalent), Federal Government contract airfare 
(where authorized and available), or the lowest commercial discount 
airfare are unallowable except when such accommodations would:
    (a) Require circuitous routing;
    (b) Require travel during unreasonable hours;
    (c) Excessively prolong travel;
    (d) Result in additional costs that would offset the transportation 
savings; or
    (e) Offer accommodations not reasonably adequate for the traveler's 
medical needs. The institution must justify and document these 
conditions on a case-by-case basis in order for the use of first-class 
airfare to be allowable in such cases.
    (2) Unless a pattern of avoidance is detected, the Federal 
Government will generally not question an institution's determinations 
that customary standard airfare or other discount airfare is unavailable 
for specific trips if the institution can demonstrate either of the 
following:
    (a) That such airfare was not available in the specific case; or
    (b) That it is the institution's overall practice to make routine 
use of such airfare.
    d. Air travel by other than commercial carrier.
    Costs of travel by institution-owned, -leased, or -chartered 
aircraft include the cost of lease, charter, operation (including 
personnel costs), maintenance, depreciation, insurance, and other 
related costs. The portion of such costs that exceeds the cost of 
allowable commercial air travel, as provided for in subsection J.53.c. 
of this Appendix, is unallowable.
    54. Trustees.
    Travel and subsistence costs of trustees (or directors) are 
allowable. The costs are subject to restrictions regarding lodging, 
subsistence and air travel costs provided in Section J.53 of this 
Appendix.

                       K. Certification of Charges

    1. To assure that expenditures for sponsored agreements are proper 
and in accordance with the agreement documents and approved project 
budgets, the annual and/or final fiscal reports or vouchers requesting 
payment under the agreements will include a certification, signed by an 
authorized official of the university, which reads essentially as 
follows: ``I certify that all expenditures reported (or payment 
requested) are for appropriate purposes and in accordance with the 
provisions of the application and award documents.''
    2. Certification of F&A costs.
    a. Policy.
    (1) No proposal to establish F&A cost rates shall be acceptable 
unless such costs have been certified by the educational institution 
using the Certificate of F&A Costs set forth in subsection K.2.b of this 
Appendix. The certificate must be signed on behalf of the institution by 
an individual at a level no lower than vice president or chief financial 
officer of the institution that submits the proposal.
    (2) No F&A cost rate shall be binding upon the Federal Government if 
the most recent required proposal from the institution has not been 
certified. Where it is necessary to establish F&A cost rates, and the 
institution has not submitted a certified proposal for establishing such 
rates in accordance with the requirements of this section, the Federal 
Government shall unilaterally establish such rates. Such rates may be 
based upon audited historical data or such other data that have been 
furnished to the cognizant Federal agency and for which it can be 
demonstrated that all unallowable costs have been excluded. When F&A 
cost rates are unilaterally established by the Federal Government 
because of failure of the institution to submit a certified proposal for 
establishing such

[[Page 144]]

rates in accordance with this section, the rates established will be set 
at a level low enough to ensure that potentially unallowable costs will 
not be reimbursed.
    b. Certificate. The certificate required by this section shall be in 
the following form:
    Certificate of F&A Costs
    This is to certify that to the best of my knowledge and belief:
    (1) I have reviewed the F&A cost proposal submitted herewith;
    (2) All costs included in this proposal [identify date] to establish 
billing or final F&A costs rate for [identify period covered by rate] 
are allowable in accordance with the requirements of the Federal 
agreement(s) to which they apply and with the cost principles applicable 
to those agreements.
    (3) This proposal does not include any costs which are unallowable 
under applicable cost principles such as (without limitation): 
advertising and public relations costs, contributions and donations, 
entertainment costs, fines and penalties, lobbying costs, and defense of 
fraud proceedings; and
    (4) All costs included in this proposal are properly allocable to 
Federal agreements on the basis of a beneficial or causal relationship 
between the expenses incurred and the agreements to which they are 
allocated in accordance with applicable requirements.
    For educational institutions that are required to file a DS-2 in 
accordance with Section C.14 of this Appendix, the following statement 
shall be added to the ``Certificate of F&A Costs'':
    (5) The rate proposal is prepared using the same cost accounting 
practices that are disclosed in the DS-2, including its amendments and 
revisions, filed with and approved by the cognizant agency.

I declare under penalty of perjury that the foregoing is true and 
correct.
Institution:____________________________________________________________
Signature:______________________________________________________________
Name of Official:_______________________________________________________
Title:__________________________________________________________________
Date of Execution:______________________________________________________

 Exhibit A--List of Colleges and Universities Subject to Section J.12.h 
                            of This Appendix

1. Johns Hopkins University
2. Stanford University
3. Massachusetts Institute of Technology
4. University of Washington
5. University of California--Los Angeles
6. University of Michigan
7. University of California--San Diego
8. University of California--San Francisco
9. University of Wisconsin--Madison
10. Columbia University
11. Yale University
12. Harvard University
13. Cornell University
14. University of Pennsylvania
15. University of California--Berkeley
16. University of Minnesota
17. Pennsylvania State University
18. University of Southern California
19. Duke University
20. Washington University
21. University of Colorado
22. University of Illinois--Urbana
23. University of Rochester
24. University of North Carolina--Chapel Hill
25. University of Pittsburgh
26. University of Chicago
27. University of Texas--Austin
28. University of Arizona
29. New York University
30. University of Iowa
31. Ohio State University
32. University of Alabama--Birmingham
33. Case Western Reserve
34. Baylor College of Medicine
35. California Institute of Technology
36. Yeshiva University
37. University of Massachusetts
38. Vanderbilt University
39. Purdue University
40. University of Utah
41. Georgia Institute of Technology
42. University of Maryland--College Park
43. University of Miami
44. University of California--Davis
45. Boston University
46. University of Florida
47. Carnegie-Mellon University
48. Northwestern University
49. Indiana University
50. Michigan State University
51. University of Virginia
52. University of Texas--SW Medical Center
53. University of California--Irvine
54. Princeton University
55. Tulane University of Louisiana
56. Emory University
57. University of Georgia
58. Texas A&M University--all campuses
59. New Mexico State University
60. North Carolina State University--Raleigh
61. University of Illinois--Chicago
62. Utah State University
63. Virginia Commonwealth University
64. Oregon State University
65. SUNY-Stony Brook
66. University of Cincinnati
67. CUNY-Mount Sinai School of Medicine
68. University of Connecticut
69. Louisiana State University
70. Tufts University
71. University of California--Santa Barbara
72. University of Hawaii--Manoa
73. Rutgers State University of New Jersey
74. Colorado State University
75. Rockefeller University
76. University of Maryland--Baltimore
77. Virginia Polytechnic Institute & State University
78. SUNY--Buffalo
79. Brown University
80. University of Medicine & Dentistry of New Jersey

[[Page 145]]

81. University of Texas--Health Science Center San Antonio
82. University of Vermont
83. University of Texas--Health Science Center Houston
84. Florida State University
85. University of Texas--MD Anderson Cancer Center
86. University of Kentucky
87. Wake Forest University
88. Wayne State University
89. Iowa State University of Science & Technology
90. University of New Mexico
91. Georgetown University
92. Dartmouth College
93. University of Kansas
94. Oregon Health Sciences University
95. University of Texas--Medical Branch-Galveston
96. University of Missouri--Columbia
97. Temple University
98. George Washington University
99. University of Dayton

  Exhibit B--Listing of Institutions That Are Eligible for the Utility 
                             Cost Adjustment

1. Baylor University
2. Boston College
3. Boston University
4. California Institute of Technology
5. Carnegie-Mellon University
6. Case Western University
7. Columbia University
8. Cornell University (Endowed)
9. Cornell University (Statutory)
10. Cornell University (Medical)
11. Dayton University
12. Emory University
13. George Washington University (Medical)
14. Georgetown University
15. Harvard Medical School
16. Harvard University (Main Campus)
17. Harvard University (School of Public Health)
18. Johns Hopkins University
19. Massachusetts Institute of Technology
20. Medical University of South Carolina
21. Mount Sinai School of Medicine
22. New York University (except New York University Medical Center)
23. New York University Medical Center
24. North Carolina State University
25. Northeastern University
26. Northwestern University
27. Oregon Health Sciences University
28. Oregon State University
29. Rice University
30. Rockefeller University
31. Stanford University
32. Tufts University
33. Tulane University
34. Vanderbilt University
35. Virginia Commonwealth University
36. Virginia Polytechnic Institute and State University
37. University of Arizona
38. University of CA, Berkeley
39. University of CA, Irvine
40. University of CA, Los Angeles
41. University of CA, San Diego
42. University of CA, San Francisco
43. University of Chicago
44. University of Cincinnati
45. University of Colorado, Health Sciences Center
46. University of Connecticut, Health Sciences Center
47. University of Health Science and The Chicago Medical School
48. University of Illinois, Urbana
49. University of Massachusetts, Medical Center
50. University of Medicine & Dentistry of New Jersey
51. University of Michigan
52. University of Pennsylvania
53. University of Pittsburgh
54. University of Rochester
55. University of Southern California
56. University of Tennessee, Knoxville
57. University of Texas, Galveston
58. University of Texas, Austin
60. University of Texas Southwestern Medical Center
61. University of Virginia
62. University of Vermont & State Agriculture College
63. University of Washington
64. Washington University
65. Yale University
66. Yeshiva University

   Exhibit C--Examples of ``Major Project'' Where Direct Charging of 
      Administrative or Clerical Staff Salaries May Be Appropriate

    1. As used in paragraph F.6.b.(2) of this Appendix, below are 
examples of ``major projects'':
    a. Large, complex programs such as General Clinical Research 
Centers, Primate Centers, Program Projects, environmental research 
centers, engineering research centers, and other grants and contracts 
that entail assembling and managing teams of investigators from a number 
of institutions.
    b. Projects which involve extensive data accumulation, analysis and 
entry, surveying, tabulation, cataloging, searching literature, and 
reporting (such as epidemiological studies, clinical trials, and 
retrospective clinical records studies).
    c. Projects that require making travel and meeting arrangements for 
large numbers of participants, such as conferences and seminars.
    d. Projects whose principal focus is the preparation and production 
of manuals and large reports, books and monographs (excluding routine 
progress and technical reports).

[[Page 146]]

    e. Projects that are geographically inaccessible to normal 
departmental administrative services, such as research vessels, radio 
astronomy projects, and other research fields sites that are remote from 
campus.
    f. Individual projects requiring project-specific database 
management; individualized graphics or manuscript preparation; human or 
animal protocols; and multiple project-related investigator coordination 
and communications.
    2. These examples are not exhaustive nor are they intended to imply 
that direct charging of administrative or clerical salaries would always 
be appropriate for the situations illustrated in the examples. For 
instance, the examples would be appropriate when the costs of such 
activities are incurred in unlike circumstances, i.e., the actual 
activities charged direct are not the same as the actual activities 
normally included in the institution's facilities and administrative 
(F&A) cost pools or, if the same, the indirect activity costs are 
immaterial in amount. It would be inappropriate to charge the cost of 
such activities directly to specific sponsored agreements if, in similar 
circumstances, the costs of performing the same type of activity for 
other sponsored agreements were included as allocable costs in the 
institution's F&A cost pools. Application of negotiated predetermined 
F&A cost rates may also be inappropriate if such activity costs charged 
directly were not provided for in the allocation base that was used to 
determine the predetermined F&A cost rates.

   Attachment A to Appendix A--CASB's Cost Accounting Standards (CAS)

    A. CAS 9905.501--Consistency in estimating, accumulating and 
reporting costs by educational institutions.

                               1. Purpose

    The purpose of this standard is to ensure that each educational 
institution's practices used in estimating costs for a proposal are 
consistent with cost accounting practices used by the educational 
institution in accumulating and reporting costs. Consistency in the 
application of cost accounting practices is necessary to enhance the 
likelihood that comparable transactions are treated alike. With respect 
to individual sponsored agreements, the consistent application of cost 
accounting practices will facilitate the preparation of reliable cost 
estimates used in pricing a proposal and their comparison with the costs 
of performance of the resulting sponsored agreement. Such comparisons 
provide one important basis for financial control over costs during 
sponsored agreement performance and aid in establishing accountability 
for costs in the manner agreed to by both parties at the time of 
agreement. The comparisons also provide an improved basis for evaluating 
estimating capabilities.

                             2. Definitions

    (a) The following are definitions of terms which are prominent in 
this standard.
    (1) Accumulating costs means the collecting of cost data in an 
organized manner, such as through a system of accounts.
    (2) Actual cost means an amount determined on the basis of cost 
incurred (as distinguished from forecasted cost), including standard 
cost properly adjusted for applicable variance.
    (3) Estimating costs means the process of forecasting a future 
result in terms of cost, based upon information available at the time.
    (4) Indirect cost pool means a grouping of incurred costs identified 
with two or more objectives but not identified specifically with any 
final cost objective.
    (5) Pricing means the process of establishing the amount or amounts 
to be paid in return for goods or services.
    (6) Proposal means any offer or other submission used as a basis for 
pricing a sponsored agreement, sponsored agreement modification or 
termination settlement or for securing payments thereunder.
    (7) Reporting costs means the providing of cost information to 
others.

                       3. Fundamental Requirement

    (a) An educational institution's practices used in estimating costs 
in pricing a proposal shall be consistent with the educational 
institution's cost accounting practices used in accumulating and 
reporting costs.
    (b) An educational institution's cost accounting practices used in 
accumulating and reporting actual costs for a sponsored agreement shall 
be consistent with the educational institution's practices used in 
estimating costs in the related proposal or application.
    (c) The grouping of homogeneous costs in estimates prepared for 
proposal purposes shall not per se be deemed an inconsistent application 
of cost accounting practices of this paragraph when such costs are 
accumulated and reported in greater detail on an actual costs basis 
during performance of the sponsored agreement.

                      4. Techniques for application

    (a) The standard allows grouping of homogeneous costs in order to 
cover those cases where it is not practicable to estimate sponsored 
agreement costs by individual cost element. However, costs estimated for 
proposal purposes shall be presented in such a manner and in such detail 
that any significant cost can be compared with the actual cost 
accumulated and reported therefor. In any event,

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the cost accounting practices used in estimating costs in pricing a 
proposal and in accumulating and reporting costs on the resulting 
sponsored agreement shall be consistent with respect to:
    (1) The classification of elements of cost as direct or indirect;
    (2) The indirect cost pools to which each element of cost is charged 
or proposed to be charged; and
    (3) The methods of allocating indirect costs to the sponsored 
agreement.
    (b) Adherence to the requirement of this standard shall be 
determined as of the date of award of the sponsored agreement, unless 
the sponsored agreement has submitted cost or pricing data pursuant to 
10 U.S.C. 2306(a) or 41 U.S.C. 254(d) (Pub. L. 87-653), in which case 
adherence to the requirement of this standard shall be determined as of 
the date of final agreement on price, as shown on the signed certificate 
of current cost or pricing data. Notwithstanding 9905.501-40(b), changes 
in established cost accounting practices during sponsored agreement 
performance may be made in accordance with Part 9903 (48 CFR part 9903).
    (c) The standard does not prescribe the amount of detail required in 
accumulating and reporting costs. The basic requirement which must be 
met, however, is that for any significant amount of estimated cost, the 
sponsored agreement must be able to accumulate and report actual cost at 
a level which permits sufficient and meaningful comparison with its 
estimates. The amount of detail required may vary considerably depending 
on how the proposed costs were estimated, the data presented in 
justification or lack thereof, and the significance of each situation. 
Accordingly, it is neither appropriate nor practical to prescribe a 
single set of accounting practices which would be consistent in all 
situations with the practices of estimating costs. Therefore, the amount 
of accounting and statistical detail to be required and maintained in 
accounting for estimated costs has been and continues to be a matter to 
be decided by Government procurement authorities on the basis of the 
individual facts and circumstances.

 B. CAS 9905.502--Consistency in Allocating Costs Incurred for the Same 
                   Purpose by Educational Institutions

                               1. Purpose

    The purpose of this standard is to require that each type of cost is 
allocated only once and on only one basis to any sponsored agreement or 
other cost objective. The criteria for determining the allocation of 
costs to a sponsored agreement or other cost objective should be the 
same for all similar objectives. Adherence to these cost accounting 
concepts is necessary to guard against the overcharging of some cost 
objectives and to prevent double counting. Double counting occurs most 
commonly when cost items are allocated directly to a cost objective 
without eliminating like cost items from indirect cost pools which are 
allocated to that cost objective.

                             2. Definitions

    (a) The following are definitions of terms which are prominent in 
this standard.
    (1) Allocate means to assign an item of cost, or a group of items of 
cost, to one or more cost objectives. This term includes both direct 
assignment of cost and the reassignment of a share from an indirect cost 
pool.
    (2) Cost objective means a function, organizational subdivision, 
sponsored agreement, or other work unit for which cost data are desired 
and for which provision is made to accumulate and measure the cost of 
processes, products, jobs, capitalized projects, etc.
    (3) Direct cost means any cost which is identified specifically with 
a particular final cost objective. Direct costs are not limited to items 
which are incorporated in the end product as material or labor. Costs 
identified specifically with a sponsored agreement are direct costs of 
that sponsored agreement. All costs identified specifically with other 
final cost objectives of the educational institution are direct costs of 
those cost objectives.
    (4) Final cost objective means a cost objective which has allocated 
to it both direct and indirect costs, and in the educational 
institution's accumulation system, is one of the final accumulation 
points.
    (5) Indirect cost means any cost not directly identified with a 
single final cost objective, but identified with two or more final cost 
objectives or with at least one intermediate cost objective.
    (6) Indirect cost pool means a grouping of incurred costs identified 
with two or more cost objectives but not identified with any final cost 
objective.
    (7) Intermediate cost objective means a cost objective that is used 
to accumulate indirect costs or service center costs that are 
subsequently allocated to one or more indirect cost pools and/or final 
cost objectives.

                       3. Fundamental Requirement

    All costs incurred for the same purpose, in like circumstances, are 
either direct costs only or indirect costs only with respect to final 
cost objectives. No final cost objective shall have allocated to it as 
an indirect cost any cost, if other costs incurred for the same purpose, 
in like circumstances, have been included as a direct cost of that or 
any other final cost objective. Further, no final cost objective shall 
have allocated to it as a direct cost any cost, if other costs incurred 
for the same purpose, in like circumstances,

[[Page 148]]

have been included in any indirect cost pool to be allocated to that or 
any other final cost objective.

                      4. Techniques for Application

    (a) The Fundamental Requirement is stated in terms of cost incurred 
and is equally applicable to estimates of costs to be incurred as used 
in sponsored agreement proposals.
    (b) The Disclosure Statement to be submitted by the educational 
institution will require that the educational institution set forth its 
cost accounting practices with regard to the distinction between direct 
and indirect costs. In addition, for those types of cost which are 
sometimes accounted for as direct and sometimes accounted for as 
indirect, the educational institution will set forth in its Disclosure 
Statement the specific criteria and circumstances for making such 
distinctions. In essence, the Disclosure Statement submitted by the 
educational institution, by distinguishing between direct and indirect 
costs, and by describing the criteria and circumstances for allocating 
those items which are sometimes direct and sometimes indirect, will be 
determinative as to whether or not costs are incurred for the same 
purpose. Disclosure Statement as used herein refers to the statement 
required to be submitted by educational institutions in Appendix A to 
Part 220, Section C.14.
    (c) In the event that an educational institution has not submitted a 
Disclosure Statement, the determination of whether specific costs are 
directly allocable to sponsored agreements shall be based upon the 
educational institution's cost accounting practices used at the time of 
sponsored agreement proposal.
    (d) Whenever costs which serve the same purpose cannot equitably be 
indirectly allocated to one or more final cost objectives in accordance 
with the educational institution's disclosed accounting practices, the 
educational institution may either (1) use a method for reassigning all 
such costs which would provide an equitable distribution to all final 
cost objectives, or (2) directly assign all such costs to final cost 
objectives with which they are specifically identified. In the event the 
educational institution decides to make a change for either purpose, the 
Disclosure Statement shall be amended to reflect the revised accounting 
practices involved.
    (e) Any direct cost of minor dollar amount may be treated as an 
indirect cost for reasons of practicality where the accounting treatment 
for such cost is consistently applied to all final cost objectives, 
provided that such treatment produces results which are substantially 
the same as the results which would have been obtained if such cost had 
been treated as a direct cost.

                            5. Illustrations

    (a) Illustrations of costs which are incurred for the same purpose:
    (1) An educational institution normally allocates all travel as an 
indirect cost and previously disclosed this accounting practice to the 
Government. For purposes of a new proposal, the educational institution 
intends to allocate the travel costs of personnel whose time is 
accounted for as direct labor directly to the sponsored agreement. Since 
travel costs of personnel whose time is accounted for as direct labor 
working on other sponsored agreements are costs which are incurred for 
the same purpose, these costs may no longer be included within indirect 
cost pools for purposes of allocation to any covered Government 
sponsored agreement. The educational institution's Disclosure Statement 
must be amended for the proposed changes in accounting practices.
    (2) An educational institution normally allocates purchasing 
activity costs indirectly and allocates this cost to instruction and 
research on the basis of modified total costs. A proposal for a new 
sponsored agreement requires a disproportionate amount of subcontract 
administration to be performed by the purchasing activity. The 
educational institution prefers to continue to allocate purchasing 
activity costs indirectly. In order to equitably allocate the total 
purchasing activity costs, the educational institution may use a method 
for allocating all such costs which would provide an equitable 
distribution to all applicable indirect cost pools. For example, the 
educational institution may use the number of transactions processed 
rather than its former allocation base of modified total costs. The 
educational institution's Disclosure Statement must be amended for the 
proposed changes in accounting practices.
    (b) Illustrations of costs which are not incurred for the same 
purpose:
    (1) An educational institution normally allocates special test 
equipment costs directly to sponsored agreements. The costs of general 
purpose test equipment are normally included in the indirect cost pool 
which is allocated to sponsored agreements. Both of these accounting 
practices were previously disclosed to the Government. Since both types 
of costs involved were not incurred for the same purpose in accordance 
with the criteria set forth in the educational institution's Disclosure 
Statement, the allocation of general purpose test equipment costs from 
the indirect cost pool to the sponsored agreement, in addition to the 
directly allocated special test equipment costs, is not considered a 
violation of the standard.
    (2) An educational institution proposes to perform a sponsored 
agreement which will require three firemen on 24-hour duty at a

[[Page 149]]

fixed-post to provide protection against damage to highly inflammable 
materials used on the sponsored agreement. The educational institution 
presently has a firefighting force of 10 employees for general 
protection of its facilities. The educational institution's costs for 
these latter firemen are treated as indirect costs and allocated to all 
sponsored agreements; however, it wants to allocate the three fixed-post 
firemen directly to the particular sponsored agreement requiring them 
and also allocate a portion of the cost of the general firefighting 
force to the same sponsored agreement. The educational institution may 
do so but only on condition that its disclosed practices indicate that 
the costs of the separate classes of firemen serve different purposes 
and that it is the educational institution's practice to allocate the 
general firefighting force indirectly and to allocate fixed-post firemen 
directly.

                            6. Interpretation

    (a) Consistency in Allocating Costs Incurred for the Same Purpose by 
Educational Institutions, provides, in this standard, that ``* * * no 
final cost objective shall have allocated to it as a direct cost any 
cost, if other costs incurred for the same purpose, in like 
circumstances, have been included in any indirect cost pool to be 
allocated to that or any other final cost objective.''
    (b) This interpretation deals with the way this standard applies to 
the treatment of costs incurred in preparing, submitting, and supporting 
proposals. In essence, it is addressed to whether or not, under the 
standard, all such costs are incurred for the same purpose, in like 
circumstances.
    (c) Under this standard, costs incurred in preparing, submitting, 
and supporting proposals pursuant to a specific requirement of an 
existing sponsored agreement are considered to have been incurred in 
different circumstances from the circumstances under which costs are 
incurred in preparing proposals which do not result from such specific 
requirement. The circumstances are different because the costs of 
preparing proposals specifically required by the provisions of an 
existing sponsored agreement relate only to that sponsored agreement 
while other proposal costs relate to all work of the educational 
institution.
    (d) This interpretation does not preclude the allocation, as 
indirect costs, of costs incurred in preparing all proposals. The cost 
accounting practices used by the educational institution, however, must 
be followed consistently and the method used to reallocate such costs, 
of course, must provide an equitable distribution to all final cost 
objectives.

     C. CAS 9905.505--Accounting for Unallowable Costs--Educational 
                              Institutions

                               1. Purpose

    (a) The purpose of this standard is to facilitate the negotiation, 
audit, administration and settlement of sponsored agreements by 
establishing guidelines covering (1) identification of costs 
specifically described as unallowable, at the time such costs first 
become defined or authoritatively designated as unallowable, and (2) the 
cost accounting treatment to be accorded such identified unallowable 
costs in order to promote the consistent application of sound cost 
accounting principles covering all incurred costs. The standard is 
predicated on the proposition that costs incurred in carrying on the 
activities of an educational institution--regardless of the allowability 
of such costs under Government sponsored agreements--are allocable to 
the cost objectives with which they are identified on the basis of their 
beneficial or causal relationships.
    (b) This standard does not govern the allowability of costs. This is 
a function of the appropriate procurement or reviewing authority.

                             2. Definitions

    (a) The following are definitions of terms which are prominent in 
this standard.
    (1) Directly associated cost means any cost which is generated 
solely as a result of the incurrence of another cost, and which would 
not have been incurred had the other cost not been incurred.
    (2) Expressly unallowable cost means a particular item or type of 
cost which, under the express provisions of an applicable law, 
regulation, or sponsored agreement, is specifically named and stated to 
be unallowable.
    (3) Indirect cost means any cost not directly identified with a 
single final cost objective, but identified with two or more final cost 
objectives or with at least one intermediate cost objective.
    (4) Unallowable cost means any cost which, under the provisions of 
any pertinent law, regulation, or sponsored agreement, cannot be 
included in prices, cost reimbursements, or settlements under a 
Government sponsored agreement to which it is allocable.

                       3. Fundamental Requirement

    (a) Costs expressly unallowable or mutually agreed to be 
unallowable, including costs mutually agreed to be unallowable directly 
associated costs, shall be identified and excluded from any billing, 
claim, application, or proposal applicable to a Government sponsored 
agreement.
    (b) Costs which specifically become designated as unallowable as a 
result of a written decision furnished by a Federal official

[[Page 150]]

pursuant to sponsored agreement disputes procedures shall be identified 
if included in or used in the computation of any billing, claim, or 
proposal applicable to a sponsored agreement. This identification 
requirement applies also to any costs incurred for the same purpose 
under like circumstances as the costs specifically identified as 
unallowable under either this paragraph or paragraph (a) of this 
subsection.
    (c) Costs which, in a Federal official's written decision furnished 
pursuant to disputes procedures, are designated as unallowable directly 
associated costs of unallowable costs covered by either paragraph (a) or 
(b) of this subsection shall be accorded the identification required by 
paragraph b. of this subsection.
    (d) The costs of any work project not contractually authorized, 
whether or not related to performance of a proposed or existing 
contract, shall be accounted for, to the extent appropriate, in a manner 
which permits ready separation from the costs of authorized work 
projects.
    (e) All unallowable costs covered by paragraphs (a) through (d) of 
this subsection shall be subject to the same cost accounting principles 
governing cost allocability as allowable costs. In circumstances where 
these unallowable costs normally would be part of a regular indirect-
cost allocation base or bases, they shall remain in such base or bases. 
Where a directly associated cost is part of a category of costs normally 
included in an indirect-cost pool that will be allocated over a base 
containing the unallowable cost with which it is associated, such a 
directly associated cost shall be retained in the indirect-cost pool and 
be allocated through the regular allocation process.
    (f) Where the total of the allocable and otherwise allowable costs 
exceeds a limitation-of-cost or ceiling-price provision in a sponsored 
agreement, full direct and indirect cost allocation shall be made to the 
cost objective, in accordance with established cost accounting practices 
and Standards which regularly govern a given entity's allocations to 
Government sponsored agreement cost objectives. In any determination of 
unallowable cost overrun, the amount thereof shall be identified in 
terms of the excess of allowable costs over the ceiling amount, rather 
than through specific identification of particular cost items or cost 
elements.

                      4. Techniques for Application

    (a) The detail and depth of records required as backup support for 
proposals, billings, or claims shall be that which is adequate to 
establish and maintain visibility of identified unallowable costs 
(including directly associated costs), their accounting status in terms 
of their allocability to sponsored agreement cost objectives, and the 
cost accounting treatment which has been accorded such costs. Adherence 
to this cost accounting principle does not require that allocation of 
unallowable costs to final cost objectives be made in the detailed cost 
accounting records. It does require that unallowable costs be given 
appropriate consideration in any cost accounting determinations 
governing the content of allocation bases used for distributing indirect 
costs to cost objectives. Unallowable costs involved in the 
determination of rates used for standard costs, or for indirect-cost 
bidding or billing, need be identified only at the time rates are 
proposed, established, revised or adjusted.
    (b) The visibility requirement of paragraph (a) of this subsection, 
may be satisfied by any form of cost identification which is adequate 
for purposes of sponsored agreement cost determination and verification. 
The standard does not require such cost identification for purposes 
which are not relevant to the determination of Government sponsored 
agreement cost. Thus, to provide visibility for incurred costs, 
acceptable alternative practices would include the segregation of 
unallowable costs in separate accounts maintained for this purpose in 
the regular books of account, the development and maintenance of 
separate accounting records or workpapers, or the use of any less formal 
cost accounting techniques which establishes and maintains adequate cost 
identification to permit audit verification of the accounting 
recognition given unallowable costs. Educational institutions may 
satisfy the visibility requirements for estimated costs either by 
designation and description (in backup data, workpapers, etc.) of the 
amounts and types of any unallowable costs which have specifically been 
identified and recognized in making the estimates, or by description of 
any other estimating technique employed to provide appropriate 
recognition of any unallowable costs pertinent to the estimates.
    (c) Specific identification of unallowable costs is not required in 
circumstances where, based upon considerations of materiality, the 
Government and the educational institution reach agreement on an 
alternate method that satisfies the purpose of the standard.

                            5. Illustrations

    (a) An auditor recommends disallowance of certain direct labor and 
direct material costs, for which a billing has been submitted under a 
sponsored agreement, on the basis that these particular costs were not 
required for performance and were not authorized by the sponsored 
agreement. The Federal officer issues a written decision which supports 
the auditor's position that the questioned costs are unallowable. 
Following receipt of the Federal officer's decision, the educational 
institution must clearly identify the disallowed direct labor and direct 
material

[[Page 151]]

costs in the educational institution's accounting records and reports 
covering any subsequent submission which includes such costs. Also, if 
the educational institution's base for allocation of any indirect cost 
pool relevant to the subject sponsored agreement consists of direct 
labor, direct material, total prime cost, total cost input, etc., the 
educational institution must include the disallowed direct labor and 
material costs in its allocation base for such pool. Had the Federal 
officer's decision been against the auditor, the educational institution 
would not, of course, have been required to account separately for the 
costs questioned by the auditor.
    (b) An educational institution incurs, and separately identifies, as 
a part of a service center or expense pool, certain costs which are 
expressly unallowable under the existing and currently effective 
regulations. If the costs of the service center or indirect expense pool 
are regularly a part of the educational institution's base for 
allocation of general administration and general expenses (GA&GE) or 
other indirect expenses, the educational institution must allocate the 
GA&GE or other indirect expenses to sponsored agreements and other final 
cost objectives by means of a base which includes the identified 
unallowable indirect costs.
    (c) An auditor recommends disallowance of certain indirect costs. 
The educational institution claims that the costs in question are 
allowable under the provisions of Appendix A to Part 220, Cost 
Principles For Educational Institutions; the auditor disagrees. The 
issue is referred to the Federal officer for resolution pursuant to the 
sponsored agreement disputes clause. The Federal officer issues a 
written decision supporting the auditor's position that the total costs 
questioned are unallowable under Appendix A. Following receipt of the 
Federal officer's decision, the educational institution must identify 
the disallowed costs and specific other costs incurred for the same 
purpose in like circumstances in any subsequent estimating, cost 
accumulation or reporting for Government sponsored agreements, in which 
such costs are included. If the Federal officer's decision had supported 
the educational institution's contention, the costs questioned by the 
auditor would have been allowable and the educational institution would 
not have been required to provide special identification.
    (d) An educational institution incurred certain unallowable costs 
that were charged indirectly as general administration and general 
expenses (GA&GE). In the educational institution's proposals for final 
indirect cost rates to be applied in determining allowable sponsored 
agreement costs, the educational institution identified and excluded the 
expressly unallowable costs. In addition, during the course of 
negotiation of indirect cost rates to be used for bidding and billing 
purposes, the educational institution agreed to classify as unallowable 
cost, various directly associated costs of the identifiable unallowable 
costs. On the basis of negotiations and agreements between the 
educational institution and the Federal officer's authorized 
representatives, indirect cost rates were established, based on the net 
balance of allowable GA&GE. Application of the rates negotiated to 
proposals, and to billings, for covered sponsored agreements constitutes 
compliance with the standard.
    (e) An employee, whose salary, travel, and subsistence expenses are 
charged regularly to the general administration and general expenses 
(GA&GE) pool, takes several business associates on what is clearly a 
business entertainment trip. The entertainment costs of such trips is 
expressly unallowable because it constitutes entertainment expense 
prohibited by Appendix A to Part 220, and is separately identified by 
the educational institution. The educational institution does not 
regularly include its GA&GE in any indirect-expense allocation base. In 
these circumstances, the employee's travel and subsistence expenses 
would be directly associated costs for identification with the 
unallowable entertainment expense. However, unless this type of activity 
constituted a significant part of the employee's regular duties and 
responsibilities on which his salary was based, no part of the 
employee's salary would be required to be identified as a directly 
associated cost of the unallowable entertainment expense.

    D. CAS 9905.506--Cost Accounting Period--Educational Institutions

                               1. Purpose

    The purpose of this standard is to provide criteria for the 
selection of the time periods to be used as cost accounting periods for 
sponsored agreement cost estimating, accumulating, and reporting. This 
standard will reduce the effects of variations in the flow of costs 
within each cost accounting period. It will also enhance objectivity, 
consistency, and verifiability, and promote uniformity and comparability 
in sponsored agreement cost measurements.

                             2. Definitions

    (a) The following are definitions of terms which are prominent in 
this standard.
    (1) Allocate means to assign an item of cost, or a group of items of 
cost, to one or more cost objectives. This term includes both direct 
assignment of cost and the reassignment of a share from an indirect cost 
pool.
    (2) Cost Objective means a function, organizational subdivision, 
sponsored agreement, or other work unit for which cost data are desired 
and for which provision is made to

[[Page 152]]

accumulate and measure the cost of processes, products, jobs, 
capitalized projects, etc.
    (3) Fiscal year means the accounting period for which annual 
financial statements are regularly prepared, generally a period of 12 
months, 52 weeks, or 53 weeks.
    (4) Indirect cost pool means a grouping of incurred costs identified 
with two or more cost objectives but not identified specifically with 
any final cost objective.

                       3. Fundamental Requirement

    (a) Educational institutions shall use their fiscal year as their 
cost accounting period, except that:
    (b) Costs of an indirect function which exists for only a part of a 
cost accounting period may be allocated to cost objectives of that same 
part of the period.
    (c) An annual period other than the fiscal year may be used as the 
cost accounting period if its use is an established practice of the 
educational institution.
    (d) A transitional cost accounting period other than a year shall be 
used whenever a change of fiscal year occurs.
    (e) An educational institution shall follow consistent practices in 
the selection of the cost accounting period or periods in which any 
types of expense and any types of adjustment to expense (including 
prior-period adjustments) are accumulated and allocated.
    (f) The same cost accounting period shall be used for accumulating 
costs in an indirect cost pool as for establishing its allocation base, 
except that the contracting parties may agree to use a different period 
for establishing an allocation base.

                      4. Techniques for Application

    (a) The cost of an indirect function which exists for only a part of 
a cost accounting period may be allocated on the basis of data for that 
part of the cost accounting period if the cost is material in amount, 
accumulated in a separate indirect cost pool or expense pool, and 
allocated on the basis of an appropriate direct measure of the activity 
or output of the function during that part of the period.
    (b) The practices required by this standard shall include 
appropriate practices for deferrals, accruals, and other adjustments to 
be used in identifying the cost accounting periods among which any types 
of expense and any types of adjustment to expense are distributed. If an 
expense, such as insurance or employee leave, is identified with a 
fixed, recurring, annual period which is different from the educational 
institution's cost accounting period, the standard permits continued use 
of that different period. Such expenses shall be distributed to cost 
accounting periods in accordance with the educational institution's 
established practices for accruals, deferrals, and other adjustments.
    (c) Indirect cost allocation rates, based on estimates, which are 
used for the purpose of expediting the closing of sponsored agreements 
which are terminated or completed prior to the end of a cost accounting 
period need not be those finally determined or negotiated for that cost 
accounting period. They shall, however, be developed to represent a full 
cost accounting period, except as provided in paragraph (a) of this 
subsection.
    (d) An educational institution may, upon mutual agreement with the 
Government, use as its cost accounting period a fixed annual period 
other than its fiscal year, if the use of such a period is an 
established practice of the educational institution and is consistently 
used for managing and controlling revenues and disbursements, and 
appropriate accruals, deferrals or other adjustments are made with 
respect to such annual periods.
    (e) The parties may agree to use an annual period which does not 
coincide precisely with the cost accounting period for developing the 
data used in establishing an allocation base: Provided,
    (1) The practice is necessary to obtain significant administrative 
convenience,
    (2) The practice is consistently followed by the educational 
institution,
    (3) The annual period used is representative of the activity of the 
cost accounting period for which the indirect costs to be allocated are 
accumulated, and
    (4) The practice can reasonably be estimated to provide a 
distribution to cost objectives of the cost accounting period not 
materially different from that which otherwise would be obtained.
    (f) When a transitional cost accounting period is required, 
educational institution may select any one of the following: the period, 
less than a year in length, extending from the end of its previous cost 
accounting period to the beginning of its next regular cost accounting 
period, a period in excess of a year, but not longer than 15 months, 
obtained by combining the period described in subparagraph (f)(1) of 
this subsection with the previous cost accounting period, or a period in 
excess of a year, but not longer than 15 months, obtained by combining 
the period described in subparagraph (f)(1) of this subsection with the 
next regular cost accounting period. A change in the educational 
institution's cost accounting period is a change in accounting practices 
for which an adjustment in the sponsored agreement price may be 
required.

                            5. Illustrations

    (a) An educational institution allocates indirect expenses for 
Organized Research on the basis of a modified total direct cost base. In 
a proposal for a sponsored agreement, it estimates the allocable 
expenses based solely

[[Page 153]]

on the estimated amount of indirect costs allocated to Organized 
Research and the amount of the modified total direct cost base estimated 
to be incurred during the 8 months in which performance is scheduled to 
be commenced and completed. Such a proposal would be in violation of the 
requirements of this standard that the calculation of the amounts of 
both the indirect cost pools and the allocation bases be based on the 
educational institution's cost accounting period.
    (b) An educational institution whose cost accounting period is the 
calendar year, installs a computer service center to begin operations on 
May 1. The operating expense related to the new service center is 
expected to be material in amount, will be accumulated in an 
intermediate cost objective, and will be allocated to the benefitting 
cost objectives on the basis of measured usage. The total operating 
expenses of the computer service center for the 8-month part of the cost 
accounting period may be allocated to the benefitting cost objectives of 
that same 8-month period.
    (c) An educational institution changes its fiscal year from a 
calendar year to the 12-month period ending May 31. For financial 
reporting purposes, it has a 5-month transitional ``fiscal year.'' The 
same 5-month period must be used as the transitional cost accounting 
period; it may not be combined, because the transitional period would be 
longer than 15 months. The new fiscal year must be adopted thereafter as 
its regular cost accounting period. The change in its cost accounting 
period is a change in accounting practices; adjustments of the sponsored 
agreement prices may thereafter be required.
    (d) Financial reports are prepared on a calendar year basis on a 
university-wide basis. However, the contracting segment does all 
internal financial planning, budgeting, and internal reporting on the 
basis of a twelve month period ended June 30. The contracting parties 
agree to use the period ended June 30 and they agree to overhead rates 
on the June 30 basis. They also agree on a technique for prorating 
fiscal year assignment of the university's central system office 
expenses between such June 30 periods. This practice is permitted by the 
standard.
    (e) Most financial accounts and sponsored agreement cost records are 
maintained on the basis of a fiscal year which ends November 30 each 
year. However, employee vacation allowances are regularly managed on the 
basis of a ``vacation year'' which ends September 30 each year. Vacation 
expenses are estimated uniformly during each ``vacation year.'' 
Adjustments are made each October to adjust the accrued liability to 
actual, and the estimating rates are modified to the extent deemed 
appropriate. This use of a separate annual period for determining the 
amounts of vacation expense is permitted.
    Attachment B to Appendix A--CASB's Disclosure Statement (DS-2) is 
available on the OMB Web site at http://www.whitehouse.gov/omb/grants/
a21-appx--b.pdf
    Attachment C to Appendix A--Documentation Requirements for 
Facilities and Administrative (F&A) Rate Proposals is available on the 
OMB Web site at http://www.whitehouse.gov/omb/grants/a21-appx--c.pdf

                        PARTS 221	224 [RESERVED]



PART 225_COST PRINCIPLES FOR STATE, LOCAL, AND INDIAN TRIBAL GOVERNMENTS (OMB CIRCULAR A	87)--Table of Contents



Sec.
225.5 Purpose.
225.10 Authority.
225.15 Background.
225.20 Policy.
225.25 Definitions.
225.30 OMB responsibilities.
225.35 Federal agency responsibilities.
225.40 Effective date of changes.
225.45 Relationship to previous issuance.
225.50 Policy review date.
225.55 Information Contact.

Appendix A to Part 225--General Principles for Determining Allowable 
          Costs
Appendix B to Part 225--Selected Items of Cost
Appendix C to Part 225--State/Local-Wide Central Service Cost Allocation 
          Plans
Appendix D to Part 225--Public Assistance Cost Allocation Plans
Appendix E to Part 225--State and Local Indirect Cost Rate Proposals

    Authority: 31 U.S.C. 503; 31 U.S.C. 1111; 41 U.S.C. 405; 
Reorganization Plan No. 2 of 1970; E.O. 11541, 35 FR 10737, 3 CFR, 1966-
1970, p. 939.

    Source: 70 FR 51910, Aug. 31, 2005, unless otherwise noted.



Sec. 225.5  Purpose.

    This part establishes principles and standards for determining costs 
for Federal awards carried out through grants, cost reimbursement 
contracts, and other agreements with State and local governments and 
federally-recognized Indian tribal governments (governmental units).



Sec. 225.10  Authority.

    This part is issued under the authority of the Budget and Accounting 
Act

[[Page 154]]

of 1921, as amended; the Budget and Accounting Procedures Act of 1950, 
as amended; the Chief Financial Officers Act of 1990; Reorganization 
Plan No. 2 of 1970; and Executive Order No. 11541 (``Prescribing the 
Duties of the Office of Management and Budget and the Domestic Policy 
Council in the Executive Office of the President'').



Sec. 225.15  Background.

    As part of the government-wide grant streamlining effort under 
Public Law 106-107, Federal Financial Award Management Improvement Act 
of 1999, OMB led an interagency workgroup to simplify and make 
consistent, to the extent feasible, the various rules used to award 
Federal grants. An interagency task force was established in 2001 to 
review existing cost principles for Federal awards to State, local, and 
Indian tribal governments; colleges and universities; and non-profit 
organizations. The task force studied ``Selected Items of Cost'' in each 
of the three cost principles to determine which items of costs could be 
stated consistently and/or more clearly.



Sec. 225.20  Policy.

    This part establishes principles and standards to provide a uniform 
approach for determining costs and to promote effective program 
delivery, efficiency, and better relationships between governmental 
units and the Federal Government. The principles are for determining 
allowable costs only. They are not intended to identify the 
circumstances or to dictate the extent of Federal and governmental unit 
participation in the financing of a particular Federal award. Provision 
for profit or other increment above cost is outside the scope of this 
part.



Sec. 225.25  Definitions.

    Definitions of key terms used in this part are contained in appendix 
A to this part, Section B.



Sec. 225.30  OMB responsibilities.

    The Office of Management and Budget (OMB) will review agency 
regulations and implementation of this part, and will provide policy 
interpretations and assistance to insure effective and efficient 
implementation. Any exceptions will be subject to approval by OMB. 
Exceptions will only be made in particular cases where adequate 
justification is presented.



Sec. 225.35  Federal agency responsibilities.

    Agencies responsible for administering programs that involve cost 
reimbursement contracts, grants, and other agreements with governmental 
units shall issue regulations to implement the provisions of this part 
and its appendices.



Sec. 225.40  Effective date of changes.

    This part is effective August 31, 2005.



Sec. 225.45  Relationship to previous issuance.

    (a) The guidance in this part previously was issued as OMB Circular 
A-87. Appendix A to this part contains the guidance that was in 
Attachment A (general principles) to the OMB circular; appendix B 
contains the guidance that was in Attachment B (selected items of cost); 
appendix C contains the information that was in Attachment C (state/
local-wide central service cost allocation plans); appendix D contains 
the guidance that was in Attachment D (public assistance cost allocation 
plans); and appendix E contains the guidance that was in Attachment E 
(state and local indirect cost rate proposals).
    (b) This part supersedes OMB Circular A-87, as amended May 10, 2004, 
which superseded Circular A-87, as amended and issued May 4, 1995.



Sec. 225.50  Policy review date.

    This part will have a policy review three years from the date of 
issuance.



Sec. 225.55  Information contact.

    Further information concerning this part may be obtained by 
contacting the Office of Federal Financial Management, Financial 
Standards and Reporting Branch, Office of Management and Budget, 
Washington, DC 20503, telephone 202-395-3993.

[[Page 155]]



    Sec. Appendix A to Part 225--General Principles for Determining 
                             Allowable Costs

                            Table of Contents

A. Purpose and Scope
1. Objectives
2. Policy guides
3. Application
B. Definitions
1. Approval or authorization of the awarding or cognizant Federal agency
2. Award
3. Awarding agency
4. Central service cost allocation plan
5. Claim
6. Cognizant agency
7. Common rule
8. Contract
9. Cost
10. Cost allocation plan
11. Cost objective
12. Federally-recognized Indian tribal government
13. Governmental unit
14. Grantee department or agency
15. Indirect cost rate proposal
16. Local government
17. Public assistance cost allocation plan
18. State
C. Basic Guidelines
1. Factors affecting allowability of costs
2. Reasonable costs
3. Allocable costs
4. Applicable credits
D. Composition of Cost
1. Total cost
2. Classification of costs
E. Direct Costs
1. General
2. Application
3. Minor items
F. Indirect Costs
1. General
2. Cost allocation plans and indirect cost proposals
3. Limitation on indirect or administrative costs
G. Interagency Services
H. Required Certifications
General Principles for Determining Allowable Costs

    A. Purpose and Scope
    1. Objectives. This Appendix establishes principles for determining 
the allowable costs incurred by State, local, and federally-recognized 
Indian tribal governments (governmental units) under grants, cost 
reimbursement contracts, and other agreements with the Federal 
Government (collectively referred to in this appendix and other 
appendices to 2 CFR part 225 as ``Federal awards''). The principles are 
for the purpose of cost determination and are not intended to identify 
the circumstances or dictate the extent of Federal or governmental unit 
participation in the financing of a particular program or project. The 
principles are designed to provide that Federal awards bear their fair 
share of cost recognized under these principles except where restricted 
or prohibited by law. Provision for profit or other increment above cost 
is outside the scope of 2 CFR part 225.
    2. Policy guides.
    a. The application of these principles is based on the fundamental 
premises that:
    (1) Governmental units are responsible for the efficient and 
effective administration of Federal awards through the application of 
sound management practices.
    (2) Governmental units assume responsibility for administering 
Federal funds in a manner consistent with underlying agreements, program 
objectives, and the terms and conditions of the Federal award.
    (3) Each governmental unit, in recognition of its own unique 
combination of staff, facilities, and experience, will have the primary 
responsibility for employing whatever form of organization and 
management techniques may be necessary to assure proper and efficient 
administration of Federal awards.
    b. Federal agencies should work with States or localities which wish 
to test alternative mechanisms for paying costs for administering 
Federal programs. The Office of Management and Budget (OMB) encourages 
Federal agencies to test fee-for-service alternatives as a replacement 
for current cost-reimbursement payment methods in response to the 
National Performance Review's (NPR) recommendation. The NPR recommended 
the fee-for-service approach to reduce the burden associated with 
maintaining systems for charging administrative costs to Federal 
programs and preparing and approving cost allocation plans. This 
approach should also increase incentives for administrative efficiencies 
and improve outcomes.
    3. Application.
    a. These principles will be applied by all Federal agencies in 
determining costs incurred by governmental units under Federal awards 
(including subawards) except those with (1) publicly-financed 
educational institutions subject to, 2 CFR part 220, Cost Principles for 
Educational Institutions (OMB Circular A-21), and (2) programs 
administered by publicly-owned hospitals and other providers of medical 
care that are subject to requirements promulgated by the sponsoring 
Federal agencies. However, 2 CFR part 225 does apply to all central 
service and department/agency costs that are allocated or billed to 
those educational institutions, hospitals, and other providers of 
medical care or services by other State and local government departments 
and agencies.
    b. All subawards are subject to those Federal cost principles 
applicable to the particular organization concerned. Thus, if a subaward 
is to a governmental unit (other

[[Page 156]]

than a college, university or hospital), 2 CFR part 225 shall apply; if 
a subaward is to a commercial organization, the cost principles 
applicable to commercial organizations shall apply; if a subaward is to 
a college or university, 2 CFR part 220 (Circular A-21) shall apply; if 
a subaward is to a hospital, the cost principles used by the Federal 
awarding agency for awards to hospitals shall apply, subject to the 
provisions of subsection A.3.a. of this Appendix; if a subaward is to 
some other non-profit organization, 2 CFR part 230, Cost Principles for 
Non-Profit Organizations (Circular A-122), shall apply.
    c. These principles shall be used as a guide in the pricing of fixed 
price arrangements where costs are used in determining the appropriate 
price.
    d. Where a Federal contract awarded to a governmental unit 
incorporates a Cost Accounting Standards (CAS) clause, the requirements 
of that clause shall apply. In such cases, the governmental unit and the 
cognizant Federal agency shall establish an appropriate advance 
agreement on how the governmental unit will comply with applicable CAS 
requirements when estimating, accumulating and reporting costs under 
CAS-covered contracts. The agreement shall indicate that 2 CFR part 225 
(OMB Circular A-87) requirements will be applied to other Federal 
awards. In all cases, only one set of records needs to be maintained by 
the governmental unit.
    e. Conditional exemptions.
    (1) OMB authorizes conditional exemption from OMB administrative 
requirements and cost principles for certain Federal programs with 
statutorily-authorized consolidated planning and consolidated 
administrative funding, that are identified by a Federal agency and 
approved by the head of the Executive department or establishment. A 
Federal agency shall consult with OMB during its consideration of 
whether to grant such an exemption.
    (2) To promote efficiency in State and local program administration, 
when Federal non-entitlement programs with common purposes have specific 
statutorily-authorized consolidated planning and consolidated 
administrative funding and where most of the State agency's resources 
come from non-Federal sources, Federal agencies may exempt these covered 
State-administered, non-entitlement grant programs from certain OMB 
grants management requirements. The exemptions would be from all but the 
allocability of costs provisions of Appendix A subsection C.3 of 2 CFR 
part 225, Cost Principles for State, Local, and Indian Tribal 
Governments (OMB Circular A-87); Appendix A, Section C.4 of 2 CFR 220, 
Cost Principles for Educational Institutions (Circular A-21); Appendix 
A, subsection A.4 of 2 CFR 230 Cost Principles for Non-Profit 
Organizations (Circular A-122); and from all of the administrative 
requirements provisions of 2 CFR part 215, Uniform Administrative 
Requirements for Grants and Agreements with Institutions of Higher 
Education, Hospitals, and Other Non-Profit Organizations (Circular A-
110), and the agencies' grants management common rule.
    (3) When a Federal agency provides this flexibility, as a 
prerequisite to a State's exercising this option, a State must adopt its 
own written fiscal and administrative requirements for expending and 
accounting for all funds, which are consistent with the provisions of 2 
CFR part 225 (OMB Circular A-87), and extend such policies to all 
subrecipients. These fiscal and administrative requirements must be 
sufficiently specific to ensure that: Funds are used in compliance with 
all applicable Federal statutory and regulatory provisions, costs are 
reasonable and necessary for operating these programs, and funds are not 
used for general expenses required to carry out other responsibilities 
of a State or its subrecipients.
    B. Definitions
    1. ``Approval or authorization of the awarding or cognizant Federal 
agency'' means documentation evidencing consent prior to incurring a 
specific cost. If such costs are specifically identified in a Federal 
award document, approval of the document constitutes approval of the 
costs. If the costs are covered by a State/local-wide cost allocation 
plan or an indirect cost proposal, approval of the plan constitutes the 
approval.
    2. ``Award'' means grants, cost reimbursement contracts and other 
agreements between a State, local and Indian tribal government and the 
Federal Government.
    3. ``Awarding agency'' means (a) with respect to a grant, 
cooperative agreement, or cost reimbursement contract, the Federal 
agency, and (b) with respect to a subaward, the party that awarded the 
subaward.
    4. ``Central service cost allocation plan'' means the documentation 
identifying, accumulating, and allocating or developing billing rates 
based on the allowable costs of services provided by a governmental unit 
on a centralized basis to its departments and agencies. The costs of 
these services may be allocated or billed to users.
    5. ``Claim'' means a written demand or written assertion by the 
governmental unit or grantor seeking, as a matter of right, the payment 
of money in a sum certain, the adjustment or interpretation of award 
terms, or other relief arising under or relating to the award. A 
voucher, invoice or other routine request for payment that is not a 
dispute when submitted is not a claim. Appeals, such as those filed by a 
governmental unit in response to questioned audit costs, are not 
considered claims until a final management decision is made by the 
Federal awarding agency.

[[Page 157]]

    6. ``Cognizant agency'' means the Federal agency responsible for 
reviewing, negotiating, and approving cost allocation plans or indirect 
cost proposals developed under 2 CFR part 225 on behalf of all Federal 
agencies. OMB publishes a listing of cognizant agencies.
    7. ``Common Rule'' means the ``Uniform Administrative Requirements 
for Grants and Cooperative Agreements to State and Local Governments; 
Final Rule'' originally issued at 53 FR 8034-8103 (March 11, 1988). 
Other common rules will be referred to by their specific titles.
    8. ``Contract'' means a mutually binding legal relationship 
obligating the seller to furnish the supplies or services (including 
construction) and the buyer to pay for them. It includes all types of 
commitments that obligate the government to an expenditure of 
appropriated funds and that, except as otherwise authorized, are in 
writing. In addition to bilateral instruments, contracts include (but 
are not limited to): Awards and notices of awards; job orders or task 
orders issued under basic ordering agreements; letter contracts; orders, 
such as purchase orders, under which the contract becomes effective by 
written acceptance or performance; and, bilateral contract 
modifications. Contracts do not include grants and cooperative 
agreements covered by 31 U.S.C. 6301 et seq.
    9. ``Cost'' means an amount as determined on a cash, accrual, or 
other basis acceptable to the Federal awarding or cognizant agency. It 
does not include transfers to a general or similar fund.
    10. ``Cost allocation plan'' means central service cost allocation 
plan, public assistance cost allocation plan, and indirect cost rate 
proposal. Each of these terms is further defined in this section.
    11. ``Cost objective'' means a function, organizational subdivision, 
contract, grant, or other activity for which cost data are needed and 
for which costs are incurred.
    12. ``Federally-recognized Indian tribal government'' means the 
governing body or a governmental agency of any Indian tribe, band, 
nation, or other organized group or community (including any native 
village as defined in Section 3 of the Alaska Native Claims Settlement 
Act, 85 Stat. 688) certified by the Secretary of the Interior as 
eligible for the special programs and services provided through the 
Bureau of Indian Affairs.
    13. ``Governmental unit'' means the entire State, local, or 
federally-recognized Indian tribal government, including any component 
thereof. Components of governmental units may function independently of 
the governmental unit in accordance with the term of the award.
    14. ``Grantee department or agency'' means the component of a State, 
local, or federally-recognized Indian tribal government which is 
responsible for the performance or administration of all or some part of 
a Federal award.
    15. ``Indirect cost rate proposal'' means the documentation prepared 
by a governmental unit or component thereof to substantiate its request 
for the establishment of an indirect cost rate as described in Appendix 
E of 2 CFR part 225.
    16. ``Local government'' means a county, municipality, city, town, 
township, local public authority, school district, special district, 
intrastate district, council of governments (whether or not incorporated 
as a non-profit corporation under State law), any other regional or 
interstate government entity, or any agency or instrumentality of a 
local government.
    17. ``Public assistance cost allocation plan'' means a narrative 
description of the procedures that will be used in identifying, 
measuring and allocating all administrative costs to all of the programs 
administered or supervised by State public assistance agencies as 
described in Appendix D of 2 CFR part 225.
    18. ``State'' means any of the several States of the United States, 
the District of Columbia, the Commonwealth of Puerto Rico, any territory 
or possession of the United States, or any agency or instrumentality of 
a State exclusive of local governments.
    C. Basic Guidelines
    1. Factors affecting allowability of costs. To be allowable under 
Federal awards, costs must meet the following general criteria:
    a. Be necessary and reasonable for proper and efficient performance 
and administration of Federal awards.
    b. Be allocable to Federal awards under the provisions of 2 CFR part 
225.
    c. Be authorized or not prohibited under State or local laws or 
regulations.
    d. Conform to any limitations or exclusions set forth in these 
principles, Federal laws, terms and conditions of the Federal award, or 
other governing regulations as to types or amounts of cost items.
    e. Be consistent with policies, regulations, and procedures that 
apply uniformly to both Federal awards and other activities of the 
governmental unit.
    f. Be accorded consistent treatment. A cost may not be assigned to a 
Federal award as a direct cost if any other cost incurred for the same 
purpose in like circumstances has been allocated to the Federal award as 
an indirect cost.
    g. Except as otherwise provided for in 2 CFR part 225, be determined 
in accordance with generally accepted accounting principles.
    h. Not be included as a cost or used to meet cost sharing or 
matching requirements of any other Federal award in either the current 
or a prior period, except as specifically provided by Federal law or 
regulation.
    i. Be the net of all applicable credits.
    j. Be adequately documented.

[[Page 158]]

    2. Reasonable costs. A cost is reasonable if, in its nature and 
amount, it does not exceed that which would be incurred by a prudent 
person under the circumstances prevailing at the time the decision was 
made to incur the cost. The question of reasonableness is particularly 
important when governmental units or components are predominately 
federally-funded. In determining reasonableness of a given cost, 
consideration shall be given to:
    a. Whether the cost is of a type generally recognized as ordinary 
and necessary for the operation of the governmental unit or the 
performance of the Federal award.
    b. The restraints or requirements imposed by such factors as: Sound 
business practices; arm's-length bargaining; Federal, State and other 
laws and regulations; and, terms and conditions of the Federal award.
    c. Market prices for comparable goods or services.
    d. Whether the individuals concerned acted with prudence in the 
circumstances considering their responsibilities to the governmental 
unit, its employees, the public at large, and the Federal Government.
    e. Significant deviations from the established practices of the 
governmental unit which may unjustifiably increase the Federal award's 
cost.
    3. Allocable costs.
    a. A cost is allocable to a particular cost objective if the goods 
or services involved are chargeable or assignable to such cost objective 
in accordance with relative benefits received.
    b. All activities which benefit from the governmental unit's 
indirect cost, including unallowable activities and services donated to 
the governmental unit by third parties, will receive an appropriate 
allocation of indirect costs.
    c. Any cost allocable to a particular Federal award or cost 
objective under the principles provided for in 2 CFR part 225 may not be 
charged to other Federal awards to overcome fund deficiencies, to avoid 
restrictions imposed by law or terms of the Federal awards, or for other 
reasons.
    d. Where an accumulation of indirect costs will ultimately result in 
charges to a Federal award, a cost allocation plan will be required as 
described in Appendices C, D, and E to this part.
    4. Applicable credits.
    a. Applicable credits refer to those receipts or reduction of 
expenditure-type transactions that offset or reduce expense items 
allocable to Federal awards as direct or indirect costs. Examples of 
such transactions are: Purchase discounts, rebates or allowances, 
recoveries or indemnities on losses, insurance refunds or rebates, and 
adjustments of overpayments or erroneous charges. To the extent that 
such credits accruing to or received by the governmental unit relate to 
allowable costs, they shall be credited to the Federal award either as a 
cost reduction or cash refund, as appropriate.
    b. In some instances, the amounts received from the Federal 
Government to finance activities or service operations of the 
governmental unit should be treated as applicable credits. Specifically, 
the concept of netting such credit items (including any amounts used to 
meet cost sharing or matching requirements) should be recognized in 
determining the rates or amounts to be charged to Federal awards. (See 
Appendix B to this part, item 11, ``Depreciation and use allowances,'' 
for areas of potential application in the matter of Federal financing of 
activities.)
    D. Composition of Cost
    1. Total cost. The total cost of Federal awards is comprised of the 
allowable direct cost of the program, plus its allocable portion of 
allowable indirect costs, less applicable credits.
    2. Classification of costs. There is no universal rule for 
classifying certain costs as either direct or indirect under every 
accounting system. A cost may be direct with respect to some specific 
service or function, but indirect with respect to the Federal award or 
other final cost objective. Therefore, it is essential that each item of 
cost be treated consistently in like circumstances either as a direct or 
an indirect cost. Guidelines for determining direct and indirect costs 
charged to Federal awards are provided in the sections that follow.
    E. Direct Costs
    1. General. Direct costs are those that can be identified 
specifically with a particular final cost objective.
    2. Application. Typical direct costs chargeable to Federal awards 
are:
    a. Compensation of employees for the time devoted and identified 
specifically to the performance of those awards.
    b. Cost of materials acquired, consumed, or expended specifically 
for the purpose of those awards.
    c. Equipment and other approved capital expenditures.
    d. Travel expenses incurred specifically to carry out the award.
    3. Minor items. Any direct cost of a minor amount may be treated as 
an indirect cost for reasons of practicality where such accounting 
treatment for that item of cost is consistently applied to all cost 
objectives.
    F. Indirect Costs
    1. General. Indirect costs are those: Incurred for a common or joint 
purpose benefiting more than one cost objective, and not readily 
assignable to the cost objectives specifically benefitted, without 
effort disproportionate to the results achieved. The term ``indirect 
costs,'' as used herein, applies to costs of this type originating in 
the grantee department, as well as those incurred by

[[Page 159]]

other departments in supplying goods, services, and facilities. To 
facilitate equitable distribution of indirect expenses to the cost 
objectives served, it may be necessary to establish a number of pools of 
indirect costs within a governmental unit department or in other 
agencies providing services to a governmental unit department. Indirect 
cost pools should be distributed to benefitted cost objectives on bases 
that will produce an equitable result in consideration of relative 
benefits derived.
    2. Cost allocation plans and indirect cost proposals. Requirements 
for development and submission of cost allocation plans and indirect 
cost rate proposals are contained in Appendices C, D, and E to this 
part.
    3. Limitation on indirect or administrative costs.
    a. In addition to restrictions contained in 2 CFR part 225, there 
may be laws that further limit the amount of administrative or indirect 
cost allowed.
    b. Amounts not recoverable as indirect costs or administrative costs 
under one Federal award may not be shifted to another Federal award, 
unless specifically authorized by Federal legislation or regulation.
    G. Interagency Services. The cost of services provided by one agency 
to another within the governmental unit may include allowable direct 
costs of the service plus a pro rate share of indirect costs. A standard 
indirect cost allowance equal to ten percent of the direct salary and 
wage cost of providing the service (excluding overtime, shift premiums, 
and fringe benefits) may be used in lieu of determining the actual 
indirect costs of the service. These services do not include centralized 
services included in central service cost allocation plans as described 
in Appendix C to this part.
    H. Required Certifications. Each cost allocation plan or indirect 
cost rate proposal required by Appendices C and E to this part must 
comply with the following:
    1. No proposal to establish a cost allocation plan or an indirect 
cost rate, whether submitted to a Federal cognizant agency or maintained 
on file by the governmental unit, shall be acceptable unless such costs 
have been certified by the governmental unit using the Certificate of 
Cost Allocation Plan or Certificate of Indirect Costs as set forth in 
Appendices C and E to this part. The certificate must be signed on 
behalf of the governmental unit by an individual at a level no lower 
than chief financial officer of the governmental unit that submits the 
proposal or component covered by the proposal.
    2. No cost allocation plan or indirect cost rate shall be approved 
by the Federal Government unless the plan or rate proposal has been 
certified. Where it is necessary to establish a cost allocation plan or 
an indirect cost rate and the governmental unit has not submitted a 
certified proposal for establishing such a plan or rate in accordance 
with the requirements, the Federal Government may either disallow all 
indirect costs or unilaterally establish such a plan or rate. Such a 
plan or rate may be based upon audited historical data or such other 
data that have been furnished to the cognizant Federal agency and for 
which it can be demonstrated that all unallowable costs have been 
excluded. When a cost allocation plan or indirect cost rate is 
unilaterally established by the Federal Government because of failure of 
the governmental unit to submit a certified proposal, the plan or rate 
established will be set to ensure that potentially unallowable costs 
will not be reimbursed.



           Sec. Appendix B to Part 225--Selected Items of Cost

                            Table of Contents

1. Advertising and public relations costs
2. Advisory councils
3. Alcoholic beverages
4. Audit costs and related services
5. Bad debts
6. Bonding costs
7. Communication costs
8. Compensation for personal services
9. Contingency provisions
10. Defense and prosecution of criminal and civil proceedings, and 
          claims
11. Depreciation and use allowances
12. Donations and contributions
13. Employee morale, health, and welfare costs
14. Entertainment costs
15. Equipment and other capital expenditures
16. Fines and penalties
17. Fund raising and investment management costs
18. Gains and losses on disposition of depreciable property and other 
          capital assets and substantial relocation of Federal programs
19. General government expenses
20. Goods or services for personal use
21. Idle facilities and idle capacity
22. Insurance and indemnification
23. Interest
24. Lobbying
25. Maintenance, operations, and repairs
26. Materials and supplies costs
27. Meetings and conferences
28. Memberships, subscriptions, and professional activity costs
29. Patent costs
30. Plant and homeland security costs
31. Pre-award costs
32. Professional service costs
33. Proposal costs
34. Publication and printing costs
35. Rearrangement and alteration costs
36. Reconversion costs
37. Rental costs of building and equipment
38. Royalties and other costs for the use of patents

[[Page 160]]

39. Selling and marketing
40. Taxes
41. Termination costs applicable to sponsored agreements
42. Training costs
43. Travel costs

    Sections 1 through 43 provide principles to be applied in 
establishing the allowability or unallowability of certain items of 
cost. These principles apply whether a cost is treated as direct or 
indirect. A cost is allowable for Federal reimbursement only to the 
extent of benefits received by Federal awards and its conformance with 
the general policies and principles stated in Appendix A to this part. 
Failure to mention a particular item of cost in these sections is not 
intended to imply that it is either allowable or unallowable; rather, 
determination of allowability in each case should be based on the 
treatment or standards provided for similar or related items of cost.
    1. Advertising and public relations costs.
    a. The term advertising costs means the costs of advertising media 
and corollary administrative costs. Advertising media include magazines, 
newspapers, radio and television, direct mail, exhibits, electronic or 
computer transmittals, and the like.
    b. The term public relations includes community relations and means 
those activities dedicated to maintaining the image of the governmental 
unit or maintaining or promoting understanding and favorable relations 
with the community or public at large or any segment of the public.
    c. The only allowable advertising costs are those which are solely 
for:
    (1) The recruitment of personnel required for the performance by the 
governmental unit of obligations arising under a Federal award;
    (2) The procurement of goods and services for the performance of a 
Federal award;
    (3) The disposal of scrap or surplus materials acquired in the 
performance of a Federal award except when governmental units are 
reimbursed for disposal costs at a predetermined amount; or
    (4) Other specific purposes necessary to meet the requirements of 
the Federal award.
    d. The only allowable public relations costs are:
    (1) Costs specifically required by the Federal award;
    (2) Costs of communicating with the public and press pertaining to 
specific activities or accomplishments which result from performance of 
Federal awards (these costs are considered necessary as part of the 
outreach effort for the Federal award); or
    (3) Costs of conducting general liaison with news media and 
government public relations officers, to the extent that such activities 
are limited to communication and liaison necessary keep the public 
informed on matters of public concern, such as notices of Federal 
contract/grant awards, financial matters, etc.
    e. Costs identified in subsections c and d if incurred for more than 
one Federal award or for both sponsored work and other work of the 
governmental unit, are allowable to the extent that the principles in 
Appendix A to this part, sections E. (``Direct Costs'') and F. 
(``Indirect Costs'') are observed.
    f. Unallowable advertising and public relations costs include the 
following:
    (1) All advertising and public relations costs other than as 
specified in subsections 1.c, d, and e of this appendix;
    (2) Costs of meetings, conventions, convocations, or other events 
related to other activities of the governmental unit, including:
    (a) Costs of displays, demonstrations, and exhibits;
    (b) Costs of meeting rooms, hospitality suites, and other special 
facilities used in conjunction with shows and other special events; and
    (c) Salaries and wages of employees engaged in setting up and 
displaying exhibits, making demonstrations, and providing briefings;
    (3) Costs of promotional items and memorabilia, including models, 
gifts, and souvenirs;
    (4) Costs of advertising and public relations designed solely to 
promote the governmental unit.
    2. Advisory councils. Costs incurred by advisory councils or 
committees are allowable as a direct cost where authorized by the 
Federal awarding agency or as an indirect cost where allocable to 
Federal awards.
    3. Alcoholic beverages. Costs of alcoholic beverages are 
unallowable.
    4. Audit costs and related services.
    a. The costs of audits required by , and performed in accordance 
with, the Single Audit Act, as implemented by Circular A-133, ``Audits 
of States, Local Governments, and Non-Profit Organizations'' are 
allowable. Also see 31 U.S.C. 7505(b) and section 230 (``Audit Costs'') 
of Circular A-133.
    b. Other audit costs are allowable if included in a cost allocation 
plan or indirect cost proposal, or if specifically approved by the 
awarding agency as a direct cost to an award.
    c. The cost of agreed-upon procedures engagements to monitor 
subrecipients who are exempted from A-133 under section 200(d) are 
allowable, subject to the conditions listed in A-133, section 230 
(b)(2).
    5. Bad debts. Bad debts, including losses (whether actual or 
estimated) arising from uncollectable accounts and other claims, related 
collection costs, and related legal costs, are unallowable.
    6. Bonding costs.

[[Page 161]]

    a. Bonding costs arise when the Federal Government requires 
assurance against financial loss to itself or others by reason of the 
act or default of the governmental unit. They arise also in instances 
where the governmental unit requires similar assurance. Included are 
such bonds as bid, performance, payment, advance payment, infringement, 
and fidelity bonds.
    b. Costs of bonding required pursuant to the terms of the award are 
allowable.
    c. Costs of bonding required by the governmental unit in the general 
conduct of its operations are allowable to the extent that such bonding 
is in accordance with sound business practice and the rates and premiums 
are reasonable under the circumstances.
    7. Communication costs. Costs incurred for telephone services, local 
and long distance telephone calls, telegrams, postage, messenger, 
electronic or computer transmittal services and the like are allowable.
    8. Compensation for personal services.
    a. General. Compensation for personnel services includes all 
remuneration, paid currently or accrued, for services rendered during 
the period of performance under Federal awards, including but not 
necessarily limited to wages, salaries, and fringe benefits. The costs 
of such compensation are allowable to the extent that they satisfy the 
specific requirements of this and other appendices under 2 CFR Part 225, 
and that the total compensation for individual employees:
    (1) Is reasonable for the services rendered and conforms to the 
established policy of the governmental unit consistently applied to both 
Federal and non-Federal activities;
    (2) Follows an appointment made in accordance with a governmental 
unit's laws and rules and meets merit system or other requirements 
required by Federal law, where applicable; and
    (3) Is determined and supported as provided in subsection h.
    b. Reasonableness. Compensation for employees engaged in work on 
Federal awards will be considered reasonable to the extent that it is 
consistent with that paid for similar work in other activities of the 
governmental unit. In cases where the kinds of employees required for 
Federal awards are not found in the other activities of the governmental 
unit, compensation will be considered reasonable to the extent that it 
is comparable to that paid for similar work in the labor market in which 
the employing government competes for the kind of employees involved. 
Compensation surveys providing data representative of the labor market 
involved will be an acceptable basis for evaluating reasonableness.
    c. Unallowable costs. Costs which are unallowable under other 
sections of these principles shall not be allowable under this section 
solely on the basis that they constitute personnel compensation.
    d. Fringe benefits.
    (1) Fringe benefits are allowances and services provided by 
employers to their employees as compensation in addition to regular 
salaries and wages. Fringe benefits include, but are not limited to, the 
costs of leave, employee insurance, pensions, and unemployment benefit 
plans. Except as provided elsewhere in these principles, the costs of 
fringe benefits are allowable to the extent that the benefits are 
reasonable and are required by law, governmental unit-employee 
agreement, or an established policy of the governmental unit.
    (2) The cost of fringe benefits in the form of regular compensation 
paid to employees during periods of authorized absences from the job, 
such as for annual leave, sick leave, holidays, court leave, military 
leave, and other similar benefits, are allowable if: They are provided 
under established written leave policies; the costs are equitably 
allocated to all related activities, including Federal awards; and, the 
accounting basis (cash or accrual) selected for costing each type of 
leave is consistently followed by the governmental unit.
    (3) When a governmental unit uses the cash basis of accounting, the 
cost of leave is recognized in the period that the leave is taken and 
paid for. Payments for unused leave when an employee retires or 
terminates employment are allowable in the year of payment provided they 
are allocated as a general administrative expense to all activities of 
the governmental unit or component.
    (4) The accrual basis may be only used for those types of leave for 
which a liability as defined by Generally Accepted Accounting Principles 
(GAAP) exists when the leave is earned. When a governmental unit uses 
the accrual basis of accounting, in accordance with GAAP, allowable 
leave costs are the lesser of the amount accrued or funded.
    (5) The cost of fringe benefits in the form of employer 
contributions or expenses for social security; employee life, health, 
unemployment, and worker's compensation insurance (except as indicated 
in section 22, Insurance and indemnification); pension plan costs (see 
subsection e.); and other similar benefits are allowable, provided such 
benefits are granted under established written policies. Such benefits, 
whether treated as indirect costs or as direct costs, shall be allocated 
to Federal awards and all other activities in a manner consistent with 
the pattern of benefits attributable to the individuals or group(s) of 
employees whose salaries and wages are chargeable to such Federal awards 
and other activities.
    e. Pension plan costs. Pension plan costs may be computed using a 
pay-as-you-go method or an acceptable actuarial cost

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method in accordance with established written policies of the 
governmental unit.
    (1) For pension plans financed on a pay-as-you-go method, allowable 
costs will be limited to those representing actual payments to retirees 
or their beneficiaries.
    (2) Pension costs calculated using an actuarial cost-based method 
recognized by GAAP are allowable for a given fiscal year if they are 
funded for that year within six months after the end of that year. Costs 
funded after the six month period (or a later period agreed to by the 
cognizant agency) are allowable in the year funded. The cognizant agency 
may agree to an extension of the six month period if an appropriate 
adjustment is made to compensate for the timing of the charges to the 
Federal Government and related Federal reimbursement and the 
governmental unit's contribution to the pension fund. Adjustments may be 
made by cash refund or other equitable procedures to compensate the 
Federal Government for the time value of Federal reimbursements in 
excess of contributions to the pension fund.
    (3) Amounts funded by the governmental unit in excess of the 
actuarially determined amount for a fiscal year may be used as the 
governmental unit's contribution in future periods.
    (4) When a governmental unit converts to an acceptable actuarial 
cost method, as defined by GAAP, and funds pension costs in accordance 
with this method, the unfunded liability at the time of conversion shall 
be allowable if amortized over a period of years in accordance with 
GAAP.
    (5) The Federal Government shall receive an equitable share of any 
previously allowed pension costs (including earnings thereon) which 
revert or inure to the governmental unit in the form of a refund, 
withdrawal, or other credit.
    f. Post-retirement health benefits. Post-retirement health benefits 
(PRHB) refers to costs of health insurance or health services not 
included in a pension plan covered by subsection 8.e. of this appendix 
for retirees and their spouses, dependents, and survivors. PRHB costs 
may be computed using a pay-as-you-go method or an acceptable actuarial 
cost method in accordance with established written polices of the 
governmental unit.
    (1) For PRHB financed on a pay as-you-go method, allowable costs 
will be limited to those representing actual payments to retirees or 
their beneficiaries.
    (2) PRHB costs calculated using an actuarial cost method recognized 
by GAAP are allowable if they are funded for that year within six months 
after the end of that year. Costs funded after the six month period (or 
a later period agreed to by the cognizant agency) are allowable in the 
year funded. The cognizant agency may agree to an extension of the six 
month period if an appropriate adjustment is made to compensate for the 
timing of the charges to the Federal Government and related Federal 
reimbursements and the governmental unit's contributions to the PRHB 
fund. Adjustments may be made by cash refund, reduction in current 
year's PRHB costs, or other equitable procedures to compensate the 
Federal Government for the time value of Federal reimbursements in 
excess of contributions to the PRHB fund.
    (3) Amounts funded in excess of the actuarially determined amount 
for a fiscal year may be used as the government's contribution in a 
future period.
    (4) When a governmental unit converts to an acceptable actuarial 
cost method and funds PRHB costs in accordance with this method, the 
initial unfunded liability attributable to prior years shall be 
allowable if amortized over a period of years in accordance with GAAP, 
or, if no such GAAP period exists, over a period negotiated with the 
cognizant agency.
    (5) To be allowable in the current year, the PRHB costs must be paid 
either to:
    (a) An insurer or other benefit provider as current year costs or 
premiums, or
    (b) An insurer or trustee to maintain a trust fund or reserve for 
the sole purpose of providing post-retirement benefits to retirees and 
other beneficiaries.
    (6) The Federal Government shall receive an equitable share of any 
amounts of previously allowed post-retirement benefit costs (including 
earnings thereon) which revert or inure to the governmental unit in the 
form of a refund, withdrawal, or other credit.
    g. Severance pay.
    (1) Payments in addition to regular salaries and wages made to 
workers whose employment is being terminated are allowable to the extent 
that, in each case, they are required by law, employer-employee 
agreement, or established written policy.
    (2) Severance payments (but not accruals) associated with normal 
turnover are allowable. Such payments shall be allocated to all 
activities of the governmental unit as an indirect cost.
    (3) Abnormal or mass severance pay will be considered on a case-by-
case basis and is allowable only if approved by the cognizant Federal 
agency.
    h. Support of salaries and wages. These standards regarding time 
distribution are in addition to the standards for payroll documentation.
    (1) Charges to Federal awards for salaries and wages, whether 
treated as direct or indirect costs, will be based on payrolls 
documented in accordance with generally accepted practice of the 
governmental unit and approved by a responsible official(s) of the 
governmental unit.
    (2) No further documentation is required for the salaries and wages 
of employees who work in a single indirect cost activity.

[[Page 163]]

    (3) Where employees are expected to work solely on a single Federal 
award or cost objective, charges for their salaries and wages will be 
supported by periodic certifications that the employees worked solely on 
that program for the period covered by the certification. These 
certifications will be prepared at least semi-annually and will be 
signed by the employee or supervisory official having first hand 
knowledge of the work performed by the employee.
    (4) Where employees work on multiple activities or cost objectives, 
a distribution of their salaries or wages will be supported by personnel 
activity reports or equivalent documentation which meets the standards 
in subsection 8.h.(5) of this appendix unless a statistical sampling 
system (see subsection 8.h.(6) of this appendix) or other substitute 
system has been approved by the cognizant Federal agency. Such 
documentary support will be required where employees work on:
    (a) More than one Federal award,
    (b) A Federal award and a non-Federal award,
    (c) An indirect cost activity and a direct cost activity,
    (d) Two or more indirect activities which are allocated using 
different allocation bases, or
    (e) An unallowable activity and a direct or indirect cost activity.
    (5) Personnel activity reports or equivalent documentation must meet 
the following standards:
    (a) They must reflect an after-the-fact distribution of the actual 
activity of each employee,
    (b) They must account for the total activity for which each employee 
is compensated,
    (c) They must be prepared at least monthly and must coincide with 
one or more pay periods, and
    (d) They must be signed by the employee.
    (e) Budget estimates or other distribution percentages determined 
before the services are performed do not qualify as support for charges 
to Federal awards but may be used for interim accounting purposes, 
provided that:
    (i) The governmental unit's system for establishing the estimates 
produces reasonable approximations of the activity actually performed;
    (ii) At least quarterly, comparisons of actual costs to budgeted 
distributions based on the monthly activity reports are made. Costs 
charged to Federal awards to reflect adjustments made as a result of the 
activity actually performed may be recorded annually if the quarterly 
comparisons show the differences between budgeted and actual costs are 
less than ten percent; and
    (iii) The budget estimates or other distribution percentages are 
revised at least quarterly, if necessary, to reflect changed 
circumstances.
    (6) Substitute systems for allocating salaries and wages to Federal 
awards may be used in place of activity reports. These systems are 
subject to approval if required by the cognizant agency. Such systems 
may include, but are not limited to, random moment sampling, case 
counts, or other quantifiable measures of employee effort.
    (a) Substitute systems which use sampling methods (primarily for 
Temporary Assistance to Needy Families (TANF), Medicaid, and other 
public assistance programs) must meet acceptable statistical sampling 
standards including:
    (i) The sampling universe must include all of the employees whose 
salaries and wages are to be allocated based on sample results except as 
provided in subsection 8.h.(6)(c) of this appendix;
    (ii) The entire time period involved must be covered by the sample; 
and
    (iii) The results must be statistically valid and applied to the 
period being sampled.
    (b) Allocating charges for the sampled employees' supervisors, 
clerical and support staffs, based on the results of the sampled 
employees, will be acceptable.
    (c) Less than full compliance with the statistical sampling 
standards noted in subsection 8.h.(6)(a) of this appendix may be 
accepted by the cognizant agency if it concludes that the amounts to be 
allocated to Federal awards will be minimal, or if it concludes that the 
system proposed by the governmental unit will result in lower costs to 
Federal awards than a system which complies with the standards.
    (7) Salaries and wages of employees used in meeting cost sharing or 
matching requirements of Federal awards must be supported in the same 
manner as those claimed as allowable costs under Federal awards.
    i. Donated services.
    (1) Donated or volunteer services may be furnished to a governmental 
unit by professional and technical personnel, consultants, and other 
skilled and unskilled labor. The value of these services is not 
reimbursable either as a direct or indirect cost. However, the value of 
donated services may be used to meet cost sharing or matching 
requirements in accordance with the provisions of the Common Rule.
    (2) The value of donated services utilized in the performance of a 
direct cost activity shall, when material in amount, be considered in 
the determination of the governmental unit's indirect costs or rate(s) 
and, accordingly, shall be allocated a proportionate share of applicable 
indirect costs.
    (3) To the extent feasible, donated services will be supported by 
the same methods used by the governmental unit to support the 
allocability of regular personnel services.
    9. Contingency provisions. Contributions to a contingency reserve or 
any similar provision made for events the occurrence of which

[[Page 164]]

cannot be foretold with certainty as to time, intensity, or with an 
assurance of their happening, are unallowable. The term ``contingency 
reserve'' excludes self-insurance reserves (see section 22.c. of this 
appendix), pension plan reserves (see section 8.e.), and post-retirement 
health and other benefit reserves (section 8.f.) computed using 
acceptable actuarial cost methods.
    10. Defense and prosecution of criminal and civil proceedings, and 
claims.
    a. The following costs are unallowable for contracts covered by 10 
U.S.C. 2324(k), ``Allowable costs under defense contracts.''
    (1) Costs incurred in defense of any civil or criminal fraud 
proceeding or similar proceeding (including filing of false 
certification brought by the United States where the contractor is found 
liable or has pleaded nolo contendere to a charge of fraud or similar 
proceeding (including filing of a false certification).
    (2) Costs incurred by a contractor in connection with any criminal, 
civil or administrative proceedings commenced by the United States or a 
State to the extent provided in 10 U.S.C. 2324(k).
    b. Legal expenses required in the administration of Federal programs 
are allowable. Legal expenses for prosecution of claims against the 
Federal Government are unallowable.
    11. Depreciation and use allowances.
    a. Depreciation and use allowances are means of allocating the cost 
of fixed assets to periods benefiting from asset use. Compensation for 
the use of fixed assets on hand may be made through depreciation or use 
allowances. A combination of the two methods may not be used in 
connection with a single class of fixed assets (e.g., buildings, office 
equipment, computer equipment, etc.) except as provided for in 
subsection g. Except for enterprise funds and internal service funds 
that are included as part of a State/local cost allocation plan, classes 
of assets shall be determined on the same basis used for the government-
wide financial statements.
    b. The computation of depreciation or use allowances shall be based 
on the acquisition cost of the assets involved. Where actual cost 
records have not been maintained, a reasonable estimate of the original 
acquisition cost may be used. The value of an asset donated to the 
governmental unit by an unrelated third party shall be its fair market 
value at the time of donation. Governmental or quasi-governmental 
organizations located within the same State shall not be considered 
unrelated third parties for this purpose.
    c. The computation of depreciation or use allowances will exclude:
    (1) The cost of land;
    (2) Any portion of the cost of buildings and equipment borne by or 
donated by the Federal Government irrespective of where title was 
originally vested or where it presently resides; and
    (3) Any portion of the cost of buildings and equipment contributed 
by or for the governmental unit, or a related donor organization, in 
satisfaction of a matching requirement.
    d. Where the depreciation method is followed, the following general 
criteria apply:
    (1) The period of useful service (useful life) established in each 
case for usable capital assets must take into consideration such factors 
as type of construction, nature of the equipment used, historical usage 
patterns, technological developments, and the renewal and replacement 
policies of the governmental unit followed for the individual items or 
classes of assets involved. In the absence of clear evidence indicating 
that the expected consumption of the asset will be significantly greater 
in the early portions than in the later portions of its useful life, the 
straight line method of depreciation shall be used.
    (2) Depreciation methods once used shall not be changed unless 
approved by the Federal cognizant or awarding agency. When the 
depreciation method is introduced for application to an asset previously 
subject to a use allowance, the annual depreciation charge thereon may 
not exceed the amount that would have resulted had the depreciation 
method been in effect from the date of acquisition of the asset. The 
combination of use allowances and depreciation applicable to the asset 
shall not exceed the total acquisition cost of the asset or fair market 
value at time of donation.
    e. When the depreciation method is used for buildings, a building's 
shell may be segregated from the major component of the building (e.g., 
plumbing system, heating, and air conditioning system, etc.) and each 
major component depreciated over its estimated useful life, or the 
entire building (i.e., the shell and all components) may be treated as a 
single asset and depreciated over a single useful life.
    f. Where the use allowance method is followed, the following general 
criteria apply:
    (1) The use allowance for buildings and improvements (including land 
improvements, such as paved parking areas, fences, and sidewalks) will 
be computed at an annual rate not exceeding two percent of acquisition 
costs.
    (2) The use allowance for equipment will be computed at an annual 
rate not exceeding 6\2/3\ percent of acquisition cost.
    (3) When the use allowance method is used for buildings, the entire 
building must be treated as a single asset; the building's components 
(e.g., plumbing system, heating and air condition, etc.) cannot be 
segregated from the building's shell. The two percent limitation, 
however, need not be applied to equipment which is merely attached or 
fastened to the building but not permanently

[[Page 165]]

fixed to it and which is used as furnishings or decorations or for 
specialized purposes (e.g., dentist chairs and dental treatment units, 
counters, laboratory benches bolted to the floor, dishwashers, modular 
furniture, carpeting, etc.). Such equipment will be considered as not 
being permanently fixed to the building if it can be removed without the 
destruction of, or need for costly or extensive alterations or repairs, 
to the building or the equipment. Equipment that meets these criteria 
will be subject to the 6\2/3\ percent equipment use allowance 
limitation.
    g. A reasonable use allowance may be negotiated for any assets that 
are considered to be fully depreciated, after taking into consideration 
the amount of depreciation previously charged to the government, the 
estimated useful life remaining at the time of negotiation, the effect 
of any increased maintenance charges, decreased efficiency due to age, 
and any other factors pertinent to the utilization of the asset for the 
purpose contemplated.
    h. Charges for use allowances or depreciation must be supported by 
adequate property records. Physical inventories must be taken at least 
once every two years (a statistical sampling approach is acceptable) to 
ensure that assets exist, and are in use. Governmental units will manage 
equipment in accordance with State laws and procedures. When the 
depreciation method is followed, depreciation records indicating the 
amount of depreciation taken each period must also be maintained.
    12. Donations and contributions.
    a. Contributions or donations rendered. Contributions or donations, 
including cash, property, and services, made by the governmental unit, 
regardless of the recipient, are unallowable.
    b. Donated services received:
    (1) Donated or volunteer services may be furnished to a governmental 
unit by professional and technical personnel, consultants, and other 
skilled and unskilled labor. The value of these services is not 
reimbursable either as a direct or indirect cost. However, the value of 
donated services may be used to meet cost sharing or matching 
requirements in accordance with the Federal Grants Management Common 
Rule.
    (2) The value of donated services utilized in the performance of a 
direct cost activity shall, when material in amount, be considered in 
the determination of the governmental unit's indirect costs or rate(s) 
and, accordingly, shall be allocated a proportionate share of applicable 
indirect costs.
    (3) To the extent feasible, donated services will be supported by 
the same methods used by the governmental unit to support the 
allocability of regular personnel services.
    13. Employee morale, health, and welfare costs.
    a. The costs of employee information publications, health or first-
aid clinics and/or infirmaries, recreational activities, employee 
counseling services, and any other expenses incurred in accordance with 
the governmental unit's established practice or custom for the 
improvement of working conditions, employer-employee relations, employee 
morale, and employee performance are allowable.
    b. Such costs will be equitably apportioned to all activities of the 
governmental unit. Income generated from any of these activities will be 
offset against expenses.
    14. Entertainment. Costs of entertainment, including amusement, 
diversion, and social activities and any costs directly associated with 
such costs (such as tickets to shows or sports events, meals, lodging, 
rentals, transportation, and gratuities) are unallowable.
    15. Equipment and other capital expenditures.
    a. For purposes of this subsection 15, the following definitions 
apply:
    (1) ``Capital Expenditures'' means expenditures for the acquisition 
cost of capital assets (equipment, buildings, land), or expenditures to 
make improvements to capital assets that materially increase their value 
or useful life. Acquisition cost means the cost of the asset including 
the cost to put it in place. Acquisition cost for equipment, for 
example, means the net invoice price of the equipment, including the 
cost of any modifications, attachments, accessories, or auxiliary 
apparatus necessary to make it usable for the purpose for which it is 
acquired. Ancillary charges, such as taxes, duty, protective in transit 
insurance, freight, and installation may be included in, or excluded 
from the acquisition cost in accordance with the governmental unit's 
regular accounting practices.
    (2) ``Equipment'' means an article of nonexpendable, tangible 
personal property having a useful life of more than one year and an 
acquisition cost which equals or exceeds the lesser of the 
capitalization level established by the governmental unit for financial 
statement purposes, or $5000.
    (3) ``Special purpose equipment'' means equipment which is used only 
for research, medical, scientific, or other technical activities. 
Examples of special purpose equipment include microscopes, x-ray 
machines, surgical instruments, and spectrometers.
    (4) ``General purpose equipment'' means equipment, which is not 
limited to research, medical, scientific or other technical activities. 
Examples include office equipment and furnishings, modular offices, 
telephone networks, information technology equipment and systems, air 
conditioning equipment, reproduction and printing equipment, and motor 
vehicles.
    b. The following rules of allowability shall apply to equipment and 
other capital expenditures:

[[Page 166]]

    (1) Capital expenditures for general purpose equipment, buildings, 
and land are unallowable as direct charges, except where approved in 
advance by the awarding agency.
    (2) Capital expenditures for special purpose equipment are allowable 
as direct costs, provided that items with a unit cost of $5000 or more 
have the prior approval of the awarding agency.
    (3) Capital expenditures for improvements to land, buildings, or 
equipment which materially increase their value or useful life are 
unallowable as a direct cost except with the prior approval of the 
awarding agency.
    (4) When approved as a direct charge pursuant to section 15.b(1), 
(2), and (3)of this appendix, capital expenditures will be charged in 
the period in which the expenditure is incurred, or as otherwise 
determined appropriate and negotiated with the awarding agency. In 
addition, Federal awarding agencies are authorized at their option to 
waive or delegate the prior approval requirement.
    (5) Equipment and other capital expenditures are unallowable as 
indirect costs. However, see section 11 of this appendix, Depreciation 
and use allowance, for rules on the allowability of use allowances or 
depreciation on buildings, capital improvements, and equipment. Also, 
see section 37 of this appendix, Rental costs, concerning the 
allowability of rental costs for land, buildings, and equipment.
    (6) The unamortized portion of any equipment written off as a result 
of a change in capitalization levels may be recovered by continuing to 
claim the otherwise allowable use allowances or depreciation on the 
equipment, or by amortizing the amount to be written off over a period 
of years negotiated with the cognizant agency.
    (7) When replacing equipment purchased in whole or in part with 
Federal funds, the governmental unit may use the equipment to be 
replaced as a trade-in or sell the property and use the proceeds to 
offset the cost of the replacement property.
    16. Fines and penalties. Fines, penalties, damages, and other 
settlements resulting from violations (or alleged violations) of, or 
failure of the governmental unit to comply with, Federal, State, local, 
or Indian tribal laws and regulations are unallowable except when 
incurred as a result of compliance with specific provisions of the 
Federal award or written instructions by the awarding agency authorizing 
in advance such payments.
    17. Fund raising and investment management costs.
    a. Costs of organized fund raising, including financial campaigns, 
solicitation of gifts and bequests, and similar expenses incurred to 
raise capital or obtain contributions are unallowable, regardless of the 
purpose for which the funds will be used.
    b. Costs of investment counsel and staff and similar expenses 
incurred to enhance income from investments are unallowable. However, 
such costs associated with investments covering pension, self-insurance, 
or other funds which include Federal participation allowed by this and 
other appendices of 2 CFR part 225 are allowable.
    c. Fund raising and investment activities shall be allocated an 
appropriate share of indirect costs under the conditions described in 
subsection C.3.b. of Appendix A to this part.
    18. Gains and losses on disposition of depreciable property and 
other capital assets and substantial relocation of Federal programs.
    a. (1) Gains and losses on the sale, retirement, or other 
disposition of depreciable property shall be included in the year in 
which they occur as credits or charges to the asset cost grouping(s) in 
which the property was included. The amount of the gain or loss to be 
included as a credit or charge to the appropriate asset cost grouping(s) 
shall be the difference between the amount realized on the property and 
the undepreciated basis of the property.
    (2) Gains and losses on the disposition of depreciable property 
shall not be recognized as a separate credit or charge under the 
following conditions:
    (a) The gain or loss is processed through a depreciation account and 
is reflected in the depreciation allowable under sections 11 and 15 of 
this appendix.
    (b) The property is given in exchange as part of the purchase price 
of a similar item and the gain or loss is taken into account in 
determining the depreciation cost basis of the new item.
    (c) A loss results from the failure to maintain permissible 
insurance, except as otherwise provided in subsection 22.d of this 
appendix.
    (d) Compensation for the use of the property was provided through 
use allowances in lieu of depreciation.
    b. Substantial relocation of Federal awards from a facility where 
the Federal Government participated in the financing to another facility 
prior to the expiration of the useful life of the financed facility 
requires Federal agency approval. The extent of the relocation, the 
amount of the Federal participation in the financing, and the 
depreciation charged to date may require negotiation of space charges 
for Federal awards.
    c. Gains or losses of any nature arising from the sale or exchange 
of property other than the property covered in subsection 18.a. of this 
appendix, e.g., land or included in the fair market value used in any 
adjustment resulting from a relocation of Federal awards covered in 
subsection b. shall be excluded in computing Federal award costs.
    19. General government expenses.
    a. The general costs of government are unallowable (except as 
provided in section 43 of this appendix, Travel costs). These include:

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    (1) Salaries and expenses of the Office of the Governor of a State 
or the chief executive of a political subdivision or the chief executive 
of federally-recognized Indian tribal government;
    (2) Salaries and other expenses of a State legislature, tribal 
council, or similar local governmental body, such as a county 
supervisor, city council, school board, etc., whether incurred for 
purposes of legislation or executive direction;
    (3) Costs of the judiciary branch of a government;
    (4) Costs of prosecutorial activities unless treated as a direct 
cost to a specific program if authorized by program statute or 
regulation (however, this does not preclude the allowability of other 
legal activities of the Attorney General); and
    (5) Costs of other general types of government services normally 
provided to the general public, such as fire and police, unless provided 
for as a direct cost under a program statute or regulation.
    b. For federally-recognized Indian tribal governments and Councils 
Of Governments (COGs), the portion of salaries and expenses directly 
attributable to managing and operating Federal programs by the chief 
executive and his staff is allowable.
    20. Goods or services for personal use. Costs of goods or services 
for personal use of the governmental unit's employees are unallowable 
regardless of whether the cost is reported as taxable income to the 
employees.
    21. Idle facilities and idle capacity.
    As used in this section the following terms have the meanings set 
forth below:
    (1) ``Facilities'' means land and buildings or any portion thereof, 
equipment individually or collectively, or any other tangible capital 
asset, wherever located, and whether owned or leased by the governmental 
unit.
    (2) ``Idle facilities'' means completely unused facilities that are 
excess to the governmental unit's current needs.
    (3) ``Idle capacity'' means the unused capacity of partially used 
facilities. It is the difference between: that which a facility could 
achieve under 100 percent operating time on a one-shift basis less 
operating interruptions resulting from time lost for repairs, setups, 
unsatisfactory materials, and other normal delays; and the extent to 
which the facility was actually used to meet demands during the 
accounting period. A multi-shift basis should be used if it can be shown 
that this amount of usage would normally be expected for the type of 
facility involved.
    (4) ``Cost of idle facilities or idle capacity'' means costs such as 
maintenance, repair, housing, rent, and other related costs, e.g., 
insurance, interest, property taxes and depreciation or use allowances.
    b. The costs of idle facilities are unallowable except to the extent 
that:
    (1) They are necessary to meet fluctuations in workload; or
    (2) Although not necessary to meet fluctuations in workload, they 
were necessary when acquired and are now idle because of changes in 
program requirements, efforts to achieve more economical operations, 
reorganization, termination, or other causes which could not have been 
reasonably foreseen. Under the exception stated in this subsection, 
costs of idle facilities are allowable for a reasonable period of time, 
ordinarily not to exceed one year, depending on the initiative taken to 
use, lease, or dispose of such facilities.
    c. The costs of idle capacity are normal costs of doing business and 
are a factor in the normal fluctuations of usage or indirect cost rates 
from period to period. Such costs are allowable, provided that the 
capacity is reasonably anticipated to be necessary or was originally 
reasonable and is not subject to reduction or elimination by use on 
other Federal awards, subletting, renting, or sale, in accordance with 
sound business, economic, or security practices. Widespread idle 
capacity throughout an entire facility or among a group of assets having 
substantially the same function may be considered idle facilities.
    22. Insurance and indemnification.
    a. Costs of insurance required or approved and maintained, pursuant 
to the Federal award, are allowable.
    b. Costs of other insurance in connection with the general conduct 
of activities are allowable subject to the following limitations:
    (1) Types and extent and cost of coverage are in accordance with the 
governmental unit's policy and sound business practice.
    (2) Costs of insurance or of contributions to any reserve covering 
the risk of loss of, or damage to, Federal Government property are 
unallowable except to the extent that the awarding agency has 
specifically required or approved such costs.
    c. Actual losses which could have been covered by permissible 
insurance (through a self-insurance program or otherwise) are 
unallowable, unless expressly provided for in the Federal award or as 
described below. However, the Federal Government will participate in 
actual losses of a self insurance fund that are in excess of reserves. 
Costs incurred because of losses not covered under nominal deductible 
insurance coverage provided in keeping with sound management practice, 
and minor losses not covered by insurance, such as spoilage, breakage, 
and disappearance of small hand tools, which occur in the ordinary 
course of operations, are allowable.
    d. Contributions to a reserve for certain self-insurance programs 
including workers compensation, unemployment compensation, and severance 
pay are allowable subject to the following provisions:

[[Page 168]]

    (1) The type of coverage and the extent of coverage and the rates 
and premiums would have been allowed had insurance (including 
reinsurance) been purchased to cover the risks. However, provision for 
known or reasonably estimated self-insured liabilities, which do not 
become payable for more than one year after the provision is made, shall 
not exceed the discounted present value of the liability. The rate used 
for discounting the liability must be determined by giving consideration 
to such factors as the governmental unit's settlement rate for those 
liabilities and its investment rate of return.
    (2) Earnings or investment income on reserves must be credited to 
those reserves.
    (3) Contributions to reserves must be based on sound actuarial 
principles using historical experience and reasonable assumptions. 
Reserve levels must be analyzed and updated at least biennially for each 
major risk being insured and take into account any reinsurance, 
coinsurance, etc. Reserve levels related to employee-related coverages 
will normally be limited to the value of claims submitted and 
adjudicated but not paid, submitted but not adjudicated, and incurred 
but not submitted. Reserve levels in excess of the amounts based on the 
above must be identified and justified in the cost allocation plan or 
indirect cost rate proposal.
    (4) Accounting records, actuarial studies, and cost allocations (or 
billings) must recognize any significant differences due to types of 
insured risk and losses generated by the various insured activities or 
agencies of the governmental unit. If individual departments or agencies 
of the governmental unit experience significantly different levels of 
claims for a particular risk, those differences are to be recognized by 
the use of separate allocations or other techniques resulting in an 
equitable allocation.
    (5) Whenever funds are transferred from a self-insurance reserve to 
other accounts (e.g., general fund), refunds shall be made to the 
Federal Government for its share of funds transferred, including earned 
or imputed interest from the date of transfer.
    e. Actual claims paid to or on behalf of employees or former 
employees for workers' compensation, unemployment compensation, 
severance pay, and similar employee benefits (e.g., subsection 8.f. for 
post retirement health benefits), are allowable in the year of payment 
provided the governmental unit follows a consistent costing policy and 
they are allocated as a general administrative expense to all activities 
of the governmental unit.
    f. Insurance refunds shall be credited against insurance costs in 
the year the refund is received.
    g. Indemnification includes securing the governmental unit against 
liabilities to third persons and other losses not compensated by 
insurance or otherwise. The Federal Government is obligated to indemnify 
the governmental unit only to the extent expressly provided for in the 
Federal award, except as provided in subsection 22.d of this appendix.
    h. Costs of commercial insurance that protects against the costs of 
the contractor for correction of the contractor's own defects in 
materials or workmanship are unallowable.
    23. Interest.
    a. Costs incurred for interest on borrowed capital or the use of a 
governmental unit's own funds, however represented, are unallowable 
except as specifically provided in subsection b. or authorized by 
Federal legislation.
    b. Financing costs (including interest) paid or incurred which are 
associated with the otherwise allowable costs of building acquisition, 
construction, or fabrication, reconstruction or remodeling completed on 
or after October 1, 1980 is allowable subject to the conditions in 
section 23.b.(1) through (4) of this appendix. Financing costs 
(including interest) paid or incurred on or after September 1, 1995 for 
land or associated with otherwise allowable costs of equipment is 
allowable, subject to the conditions in section 23.b. (1) through (4) of 
this appendix.
    (1) The financing is provided (from other than tax or user fee 
sources) by a bona fide third party external to the governmental unit;
    (2) The assets are used in support of Federal awards;
    (3) Earnings on debt service reserve funds or interest earned on 
borrowed funds pending payment of the construction or acquisition costs 
are used to offset the current period's cost or the capitalized 
interest, as appropriate. Earnings subject to being reported to the 
Federal Internal Revenue Service under arbitrage requirements are 
excludable.
    (4) For debt arrangements over $1 million, unless the governmental 
unit makes an initial equity contribution to the asset purchase of 25 
percent or more, the governmental unit shall reduce claims for interest 
cost by an amount equal to imputed interest earnings on excess cash 
flow, which is to be calculated as follows. Annually, non-Federal 
entities shall prepare a cumulative (from the inception of the project) 
report of monthly cash flows that includes inflows and outflows, 
regardless of the funding source. Inflows consist of depreciation 
expense, amortization of capitalized construction interest, and annual 
interest cost. For cash flow calculations, the annual inflow figures 
shall be divided by the number of months in the year (i.e., usually 12) 
that the building is in service for monthly amounts. Outflows consist of 
initial equity contributions, debt principal payments (less the pro rata 
share attributable to the unallowable costs of land) and interest 
payments. Where cumulative inflows exceed cumulative outflows,

[[Page 169]]

interest shall be calculated on the excess inflows for that period and 
be treated as a reduction to allowable interest cost. The rate of 
interest to be used to compute earnings on excess cash flows shall be 
the three-month Treasury bill closing rate as of the last business day 
of that month.
    (5) Interest attributable to fully depreciated assets is 
unallowable.
    24. Lobbying.
    a. General. The cost of certain influencing activities associated 
with obtaining grants, contracts, cooperative agreements, or loans is an 
unallowable cost. Lobbying with respect to certain grants, contracts, 
cooperative agreements, and loans shall be governed by the common rule, 
``New Restrictions on Lobbying'' (see Section J.24 of Appendix A to 2 
CFR part 220), including definitions, and the Office of Management and 
Budget ``Government-wide Guidance for New Restrictions on Lobbying'' and 
notices published at 54 FR 52306 (December 20, 1989), 55 FR 24540 (June 
15, 1990), and 57 FR 1772 (January 15, 1992), respectively.
    b. Executive lobbying costs. Costs incurred in attempting to 
improperly influence either directly or indirectly, an employee or 
officer of the Executive Branch of the Federal Government to give 
consideration or to act regarding a sponsored agreement or a regulatory 
matter are unallowable. Improper influence means any influence that 
induces or tends to induce a Federal employee or officer to give 
consideration or to act regarding a federally-sponsored agreement or 
regulatory matter on any basis other than the merits of the matter.
    25. Maintenance, operations, and repairs. Unless prohibited by law, 
the cost of utilities, insurance, security, janitorial services, 
elevator service, upkeep of grounds, necessary maintenance, normal 
repairs and alterations, and the like are allowable to the extent that 
they: keep property (including Federal property, unless otherwise 
provided for) in an efficient operating condition, do not add to the 
permanent value of property or appreciably prolong its intended life, 
and are not otherwise included in rental or other charges for space. 
Costs which add to the permanent value of property or appreciably 
prolong its intended life shall be treated as capital expenditures (see 
sections 11 and 15 of this appendix).
    26. Materials and supplies costs.
    a. Costs incurred for materials, supplies, and fabricated parts 
necessary to carry out a Federal award are allowable.
    b. Purchased materials and supplies shall be charged at their actual 
prices, net of applicable credits. Withdrawals from general stores or 
stockrooms should be charged at their actual net cost under any 
recognized method of pricing inventory withdrawals, consistently 
applied. Incoming transportation charges are a proper part of materials 
and supplies costs.
    c. Only materials and supplies actually used for the performance of 
a Federal award may be charged as direct costs.
    d. Where federally-donated or furnished materials are used in 
performing the Federal award, such materials will be used without 
charge.
    27. Meetings and conferences. Costs of meetings and conferences, the 
primary purpose of which is the dissemination of technical information, 
are allowable. This includes costs of meals, transportation, rental of 
facilities, speakers' fees, and other items incidental to such meetings 
or conferences. But see section 14, Entertainment costs, of this 
appendix.
    28. Memberships, subscriptions, and professional activity costs.
    a. Costs of the governmental unit's memberships in business, 
technical, and professional organizations are allowable.
    b. Costs of the governmental unit's subscriptions to business, 
professional, and technical periodicals are allowable.
    c. Costs of membership in civic and community, social organizations 
are allowable as a direct cost with the approval of the Federal awarding 
agency.
    d. Costs of membership in organizations substantially engaged in 
lobbying are unallowable.
    29. Patent costs.
    a. The following costs relating to patent and copyright matters are 
allowable: cost of preparing disclosures, reports, and other documents 
required by the Federal award and of searching the art to the extent 
necessary to make such disclosures; cost of preparing documents and any 
other patent costs in connection with the filing and prosecution of a 
United States patent application where title or royalty-free license is 
required by the Federal Government to be conveyed to the Federal 
Government; and general counseling services relating to patent and 
copyright matters, such as advice on patent and copyright laws, 
regulations, clauses, and employee agreements (but see sections 32, 
Professional service costs, and 38, Royalties and other costs for use of 
patents and copyrights, of this appendix).
    b. The following costs related to patent and copyright matter are 
unallowable: Cost of preparing disclosures, reports, and other documents 
and of searching the art to the extent necessary to make disclosures not 
required by the award; costs in connection with filing and prosecuting 
any foreign patent application; or any United States patent application, 
where the Federal award does not require conveying title or a royalty-
free license to the Federal Government (but see section 38, Royalties 
and other costs for use of patents and copyrights, of this appendix).

[[Page 170]]

    30. Plant and homeland security costs. Necessary and reasonable 
expenses incurred for routine and homeland security to protect 
facilities, personnel, and work products are allowable. Such costs 
include, but are not limited to, wages and uniforms of personnel engaged 
in security activities; equipment; barriers; contractual security 
services; consultants; etc. Capital expenditures for homeland and plant 
security purposes are subject to section 15, Equipment and other capital 
expenditures, of this appendix.
    31. Pre-award costs. Pre-award costs are those incurred prior to the 
effective date of the award directly pursuant to the negotiation and in 
anticipation of the award where such costs are necessary to comply with 
the proposed delivery schedule or period of performance. Such costs are 
allowable only to the extent that they would have been allowable if 
incurred after the date of the award and only with the written approval 
of the awarding agency.
    32. Professional service costs.
    a. Costs of professional and consultant services rendered by persons 
who are members of a particular profession or possess a special skill, 
and who are not officers or employees of the governmental unit, are 
allowable, subject to subparagraphs b and c when reasonable in relation 
to the services rendered and when not contingent upon recovery of the 
costs from the Federal Government. In addition, legal and related 
services are limited under section 10 of this appendix.
    b. In determining the allowability of costs in a particular case, no 
single factor or any special combination of factors is necessarily 
determinative. However, the following factors are relevant:
    (1) The nature and scope of the service rendered in relation to the 
service required.
    (2) The necessity of contracting for the service, considering the 
governmental unit's capability in the particular area.
    (3) The past pattern of such costs, particularly in the years prior 
to Federal awards.
    (4) The impact of Federal awards on the governmental unit's business 
(i.e., what new problems have arisen).
    (5) Whether the proportion of Federal work to the governmental 
unit's total business is such as to influence the governmental unit in 
favor of incurring the cost, particularly where the services rendered 
are not of a continuing nature and have little relationship to work 
under Federal grants and contracts.
    (6) Whether the service can be performed more economically by direct 
employment rather than contracting.
    (7) The qualifications of the individual or concern rendering the 
service and the customary fees charged, especially on non-Federal 
awards.
    (8) Adequacy of the contractual agreement for the service (e.g., 
description of the service, estimate of time required, rate of 
compensation, and termination provisions).
    c. In addition to the factors in subparagraph b, retainer fees to be 
allowable must be supported by available or rendered evidence of bona 
fide services available or rendered.
    33. Proposal costs. Costs of preparing proposals for potential 
Federal awards are allowable. Proposal costs should normally be treated 
as indirect costs and should be allocated to all activities of the 
governmental unit utilizing the cost allocation plan and indirect cost 
rate proposal. However, proposal costs may be charged directly to 
Federal awards with the prior approval of the Federal awarding agency.
    34. Publication and printing costs.
    a. Publication costs include the costs of printing (including the 
processes of composition, plate-making, press work, binding, and the end 
products produced by such processes), distribution, promotion, mailing, 
and general handling. Publication costs also include page charges in 
professional publications.
    b. If these costs are not identifiable with a particular cost 
objective, they should be allocated as indirect costs to all benefiting 
activities of the governmental unit.
    c. Page charges for professional journal publications are allowable 
as a necessary part of research costs where:
    (1) The research papers report work supported by the Federal 
Government; and
    (2) The charges are levied impartially on all research papers 
published by the journal, whether or not by federally-sponsored authors.
    35. Rearrangement and alteration costs. Costs incurred for ordinary 
and normal rearrangement and alteration of facilities are allowable. 
Special arrangements and alterations costs incurred specifically for a 
Federal award are allowable with the prior approval of the Federal 
awarding agency.
    36. Reconversion costs. Costs incurred in the restoration or 
rehabilitation of the governmental unit's facilities to approximately 
the same condition existing immediately prior to commencement of Federal 
awards, less costs related to normal wear and tear, are allowable.
    37. Rental costs of buildings and equipment.
    a. Subject to the limitations described in subsections b. through d. 
of this section, rental costs are allowable to the extent that the rates 
are reasonable in light of such factors as: rental costs of comparable 
property, if any; market conditions in the area; alternatives available; 
and the type, life expectancy, condition, and value of the property 
leased. Rental arrangements should be reviewed periodically to determine 
if circumstances have changed and other options are available.

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    b. Rental costs under ``sale and lease back'' arrangements are 
allowable only up to the amount that would be allowed had the 
governmental unit continued to own the property. This amount would 
include expenses such as depreciation or use allowance, maintenance, 
taxes, and insurance.
    c. Rental costs under ``less-than-arm's-length'' leases are 
allowable only up to the amount (as explained in section 37.b of this 
appendix) that would be allowed had title to the property vested in the 
governmental unit. For this purpose, a less-than-arm's-length lease is 
one under which one party to the lease agreement is able to control or 
substantially influence the actions of the other. Such leases include, 
but are not limited to those between divisions of a governmental unit; 
governmental units under common control through common officers, 
directors, or members; and a governmental unit and a director, trustee, 
officer, or key employee of the governmental unit or his immediate 
family, either directly or through corporations, trusts, or similar 
arrangements in which they hold a controlling interest. For example, a 
governmental unit may establish a separate corporation for the sole 
purpose of owning property and leasing it back to the governmental unit.
    d. Rental costs under leases which are required to be treated as 
capital leases under GAAP are allowable only up to the amount (as 
explained in subsection 37.b of this appendix) that would be allowed had 
the governmental unit purchased the property on the date the lease 
agreement was executed. The provisions of Financial Accounting Standards 
Board Statement 13, Accounting for Leases, shall be used to determine 
whether a lease is a capital lease. Interest costs related to capital 
leases are allowable to the extent they meet the criteria in section 23 
of this appendix. Unallowable costs include amounts paid for profit, 
management fees, and taxes that would not have been incurred had the 
governmental unit purchased the facility.
    38. Royalties and other costs for the use of patents.
    a. Royalties on a patent or copyright or amortization of the cost of 
acquiring by purchase a copyright, patent, or rights thereto, necessary 
for the proper performance of the award are allowable unless:
    (1) The Federal Government has a license or the right to free use of 
the patent or copyright.
    (2) The patent or copyright has been adjudicated to be invalid, or 
has been administratively determined to be invalid.
    (3) The patent or copyright is considered to be unenforceable.
    (4) The patent or copyright is expired.
    b. Special care should be exercised in determining reasonableness 
where the royalties may have been arrived at as a result of less-than-
arm's-length bargaining, e.g.:
    (1) Royalties paid to persons, including corporations, affiliated 
with the governmental unit.
    (2) Royalties paid to unaffiliated parties, including corporations, 
under an agreement entered into in contemplation that a Federal award 
would be made.
    (3) Royalties paid under an agreement entered into after an award is 
made to a governmental unit.
    c. In any case involving a patent or copyright formerly owned by the 
governmental unit, the amount of royalty allowed should not exceed the 
cost which would have been allowed had the governmental unit retained 
title thereto.
    39. Selling and marketing. Costs of selling and marketing any 
products or services of the governmental unit are unallowable (unless 
allowed under section 1. of this appendix as allowable public relations 
costs or under section 33. of this appendix as allowable proposal costs.
    40. Taxes.
    a. Taxes that a governmental unit is legally required to pay are 
allowable, except for self-assessed taxes that disproportionately affect 
Federal programs or changes in tax policies that disproportionately 
affect Federal programs. This provision is applicable to taxes paid 
during the governmental unit's first fiscal year that begins on or after 
January 1, 1998, and applies thereafter.
    b. Gasoline taxes, motor vehicle fees, and other taxes that are in 
effect user fees for benefits provided to the Federal Government are 
allowable.
    c. This provision does not restrict the authority of Federal 
agencies to identify taxes where Federal participation is inappropriate. 
Where the identification of the amount of unallowable taxes would 
require an inordinate amount of effort, the cognizant agency may accept 
a reasonable approximation thereof.
    41. Termination costs applicable to sponsored agreements. 
Termination of awards generally gives rise to the incurrence of costs, 
or the need for special treatment of costs, which would not have arisen 
had the Federal award not been terminated. Cost principles covering 
these items are set forth below. They are to be used in conjunction with 
the other provisions of this appendix in termination situations.
    a. The cost of items reasonably usable on the governmental unit's 
other work shall not be allowable unless the governmental unit submits 
evidence that it would not retain such items at cost without sustaining 
a loss. In deciding whether such items are reasonably usable on other 
work of the governmental unit, the awarding agency should consider the 
governmental unit's plans and orders for current and scheduled activity.

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Contemporaneous purchases of common items by the governmental unit shall 
be regarded as evidence that such items are reasonably usable on the 
governmental unit's other work. Any acceptance of common items as 
allocable to the terminated portion of the Federal award shall be 
limited to the extent that the quantities of such items on hand, in 
transit, and on order are in excess of the reasonable quantitative 
requirements of other work.
    b. If in a particular case, despite all reasonable efforts by the 
governmental unit, certain costs cannot be discontinued immediately 
after the effective date of termination, such costs are generally 
allowable within the limitations set forth in this and other appendices 
of 2 CFR part 225, except that any such costs continuing after 
termination due to the negligent or willful failure of the governmental 
unit to discontinue such costs shall be unallowable.
    c. Loss of useful value of special tooling, machinery, and equipment 
is generally allowable if:
    (1) Such special tooling, special machinery, or equipment is not 
reasonably capable of use in the other work of the governmental unit,
    (2) The interest of the Federal Government is protected by transfer 
of title or by other means deemed appropriate by the awarding agency, 
and
    (3) The loss of useful value for any one terminated Federal award is 
limited to that portion of the acquisition cost which bears the same 
ratio to the total acquisition cost as the terminated portion of the 
Federal award bears to the entire terminated Federal award and other 
Federal awards for which the special tooling, machinery, or equipment 
was acquired.
    d. Rental costs under unexpired leases are generally allowable where 
clearly shown to have been reasonably necessary for the performance of 
the terminated Federal award less the residual value of such leases, if:
    (1) The amount of such rental claimed does not exceed the reasonable 
use value of the property leased for the period of the Federal award and 
such further period as may be reasonable, and
    (2) The governmental unit makes all reasonable efforts to terminate, 
assign, settle, or otherwise reduce the cost of such lease. There also 
may be included the cost of alterations of such leased property, 
provided such alterations were necessary for the performance of the 
Federal award, and of reasonable restoration required by the provisions 
of the lease.
    e. Settlement expenses including the following are generally 
allowable:
    (1) Accounting, legal, clerical, and similar costs reasonably 
necessary for:
    (a) The preparation and presentation to the awarding agency of 
settlement claims and supporting data with respect to the terminated 
portion of the Federal award, unless the termination is for default (see 
Subpart --.44 of the Grants Management Common Rule (see Sec. 215.5) 
implementing OMB Circular A-102); and
    (b) The termination and settlement of subawards.
    (2) Reasonable costs for the storage, transportation, protection, 
and disposition of property provided by the Federal Government or 
acquired or produced for the Federal award, except when grantees or 
contractors are reimbursed for disposals at a predetermined amount in 
accordance with Subparts --.31 and --.32 of the Grants Management Common 
Rule (see Sec. 215.5) implementing OMB Circular A-102.
    f. Claims under subawards, including the allocable portion of claims 
which are common to the Federal award, and to other work of the 
governmental unit are generally allowable. An appropriate share of the 
governmental unit's indirect expense may be allocated to the amount of 
settlements with subcontractors and/or subgrantees, provided that the 
amount allocated is otherwise consistent with the basic guidelines 
contained in Appendix A to this part. The indirect expense so allocated 
shall exclude the same and similar costs claimed directly or indirectly 
as settlement expenses.
    42. Training costs. The cost of training provided for employee 
development is allowable.
    43. Travel costs.
    a. General. Travel costs are the expenses for transportation, 
lodging, subsistence, and related items incurred by employees who are in 
travel status on official business of the governmental unit. Such costs 
may be charged on an actual cost basis, on a per diem or mileage basis 
in lieu of actual costs incurred, or on a combination of the two, 
provided the method used is applied to an entire trip and not to 
selected days of the trip, and results in charges consistent with those 
normally allowed in like circumstances in the governmental unit's non-
federally-sponsored activities. Notwithstanding the provisions of 
section 19 of this appendix, General government expenses, travel costs 
of officials covered by that section are allowable with the prior 
approval of an awarding agency when they are specifically related to 
Federal awards.
    b. Lodging and subsistence. Costs incurred by employees and officers 
for travel, including costs of lodging, other subsistence, and 
incidental expenses, shall be considered reasonable and allowable only 
to the extent such costs do not exceed charges normally allowed by the 
governmental unit in its regular operations as the result of the 
governmental unit's written travel policy. In the absence of an 
acceptable, written governmental unit policy regarding travel costs,

[[Page 173]]

the rates and amounts established under subchapter I of Chapter 57, 
Title 5, United States Code (``Travel and Subsistence Expenses; Mileage 
Allowances''), or by the Administrator of General Services, or by the 
President (or his or her designee) pursuant to any provisions of such 
subchapter shall apply to travel under Federal awards (48 CFR 31.205-
46(a)).
    c. Commercial air travel.
    (1) Airfare costs in excess of the customary standard commercial 
airfare (coach or equivalent), Federal Government contract airfare 
(where authorized and available), or the lowest commercial discount 
airfare are unallowable except when such accommodations would:
    (a) Require circuitous routing;
    (b) Require travel during unreasonable hours;
    (c) Excessively prolong travel;
    (d) Result in additional costs that would offset the transportation 
savings; or
    (e) Offer accommodations not reasonably adequate for the traveler's 
medical needs. The governmental unit must justify and document these 
conditions on a case-by-case basis in order for the use of first-class 
airfare to be allowable in such cases.
    (2) Unless a pattern of avoidance is detected, the Federal 
Government will generally not question a governmental unit's 
determinations that customary standard airfare or other discount airfare 
is unavailable for specific trips if the governmental unit can 
demonstrate either of the following:
    (aa) That such airfare was not available in the specific case; or
    (b) That it is the governmental unit's overall practice to make 
routine use of such airfare.
    d. Air travel by other than commercial carrier. Costs of travel by 
governmental unit-owned, -leased, or -chartered aircraft include the 
cost of lease, charter, operation (including personnel costs), 
maintenance, depreciation, insurance, and other related costs. The 
portion of such costs that exceeds the cost of allowable commercial air 
travel, as provided for in subsection 43.c. of this appendix, is 
unallowable.
    e. Foreign travel. Direct charges for foreign travel costs are 
allowable only when the travel has received prior approval of the 
awarding agency. Each separate foreign trip must receive such approval. 
For purposes of this provision, ``foreign travel'' includes any travel 
outside Canada, Mexico, the United States, and any United States 
territories and possessions. However, the term ``foreign travel'' for a 
governmental unit located in a foreign country means travel outside that 
country.



   Sec. Appendix C to Part 225--State/Local-Wide Central Service Cost 
                            Allocation Plans

                            Table of Contents

A. General
B. Definitions
1. Billed central services
2. Allocated central services
3. Agency or operating agency
C. Scope of the Central Service Cost Allocation Plans
D. Submission Requirements
E. Documentation Requirements for Submitted Plans
1. General
2. Allocated central services
3. Billed services
a. General
b. Internal service funds
c. Self-insurance funds
d. Fringe benefits
4. Required certification
F. Negotiation and Approval of Central Service Plans
G. Other Policies
1. Billed central service activities
2. Working capital reserves
3. Carry-forward adjustments of allocated central service costs
4. Adjustments of billed central services
5. Records retention
6. Appeals
7. OMB assistance State/Local-Wide Central Service Cost Allocation Plans
    A. General.
    1. Most governmental units provide certain services, such as motor 
pools, computer centers, purchasing, accounting, etc., to operating 
agencies on a centralized basis. Since federally-supported awards are 
performed within the individual operating agencies, there needs to be a 
process whereby these central service costs can be identified and 
assigned to benefitted activities on a reasonable and consistent basis. 
The central service cost allocation plan provides that process. All 
costs and other data used to distribute the costs included in the plan 
should be supported by formal accounting and other records that will 
support the propriety of the costs assigned to Federal awards.
    2. Guidelines and illustrations of central service cost allocation 
plans are provided in a brochure published by the Department of Health 
and Human Services entitled ``A Guide for State and Local Government 
Agencies: Cost Principles and Procedures for Establishing Cost 
Allocation Plans and Indirect Cost Rates for Grants and Contracts with 
the Federal Government.'' A copy of this brochure may be obtained from 
the Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20401.
    B. Definitions.

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    1. ``Billed central services'' means central services that are 
billed to benefitted agencies and/or programs on an individual fee-for-
service or similar basis. Typical examples of billed central services 
include computer services, transportation services, insurance, and 
fringe benefits.
    2. ``Allocated central services'' means central services that 
benefit operating agencies but are not billed to the agencies on a fee-
for-service or similar basis. These costs are allocated to benefitted 
agencies on some reasonable basis. Examples of such services might 
include general accounting, personnel administration, purchasing, etc.
    3. ``Agency or operating agency'' means an organizational unit or 
sub-division within a governmental unit that is responsible for the 
performance or administration of awards or activities of the 
governmental unit.
    C. Scope of the Central Service Cost Allocation Plans. The central 
service cost allocation plan will include all central service costs that 
will be claimed (either as a billed or an allocated cost) under Federal 
awards and will be documented as described in section E. Costs of 
central services omitted from the plan will not be reimbursed.
    D. Submission Requirements.
    1. Each State will submit a plan to the Department of Health and 
Human Services for each year in which it claims central service costs 
under Federal awards. The plan should include a projection of the next 
year's allocated central service cost (based either on actual costs for 
the most recently completed year or the budget projection for the coming 
year), and a reconciliation of actual allocated central service costs to 
the estimated costs used for either the most recently completed year or 
the year immediately preceding the most recently completed year.
    2. Each local government that has been designated as a ``major local 
government'' by the Office of Management and Budget (OMB) is also 
required to submit a plan to its cognizant agency annually. OMB 
periodically lists major local governments in the Federal Register.
    3. All other local governments claiming central service costs must 
develop a plan in accordance with the requirements described in this 
appendix and maintain the plan and related supporting documentation for 
audit. These local governments are not required to submit their plans 
for Federal approval unless they are specifically requested to do so by 
the cognizant agency. Where a local government only receives funds as a 
sub-recipient, the primary recipient will be responsible for negotiating 
indirect cost rates and/or monitoring the sub-recipient's plan.
    4. All central service cost allocation plans will be prepared and, 
when required, submitted within six months prior to the beginning of 
each of the governmental unit's fiscal years in which it proposes to 
claim central service costs. Extensions may be granted by the cognizant 
agency on a case-by-case basis.
    E. Documentation Requirements for Submitted Plans. The documentation 
requirements described in this section may be modified, expanded, or 
reduced by the cognizant agency on a case-by-case basis. For example, 
the requirements may be reduced for those central services which have 
little or no impact on Federal awards. Conversely, if a review of a plan 
indicates that certain additional information is needed, and will likely 
be needed in future years, it may be routinely requested in future plan 
submissions. Items marked with an asterisk (*) should be submitted only 
once; subsequent plans should merely indicate any changes since the last 
plan.
    1. General. All proposed plans must be accompanied by the following: 
An organization chart sufficiently detailed to show operations including 
the central service activities of the State/local government whether or 
not they are shown as benefiting from central service functions; a copy 
of the Comprehensive Annual Financial Report (or a copy of the Executive 
Budget if budgeted costs are being proposed) to support the allowable 
costs of each central service activity included in the plan; and, a 
certification (see subsection 4.) that the plan was prepared in 
accordance with this and other appendices to this part, contains only 
allowable costs, and was prepared in a manner that treated similar costs 
consistently among the various Federal awards and between Federal and 
non-Federal awards/activities.
    2. Allocated central services. For each allocated central service, 
the plan must also include the following: A brief description of the 
service*, an identification of the unit rendering the service and the 
operating agencies receiving the service, the items of expense included 
in the cost of the service, the method used to distribute the cost of 
the service to benefitted agencies, and a summary schedule showing the 
allocation of each service to the specific benefitted agencies. If any 
self-insurance funds or fringe benefits costs are treated as allocated 
(rather than billed) central services, documentation discussed in 
subsections 3.b. and c. shall also be included.
    3. Billed services.
    a. General. The information described below shall be provided for 
all billed central services, including internal service funds, self-
insurance funds, and fringe benefit funds.
    b. Internal service funds.
    (1) For each internal service fund or similar activity with an 
operating budget of $5 million or more, the plan shall include: A brief 
description of each service; a balance sheet for each fund based on 
individual accounts contained in the governmental unit's

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accounting system; a revenue/expenses statement, with revenues broken 
out by source, e.g., regular billings, interest earned, etc.; a listing 
of all non-operating transfers (as defined by Generally Accepted 
Accounting Principles (GAAP)) into and out of the fund; a description of 
the procedures (methodology) used to charge the costs of each service to 
users, including how billing rates are determined; a schedule of current 
rates; and, a schedule comparing total revenues (including imputed 
revenues) generated by the service to the allowable costs of the 
service, as determined under this and other appendices of this part, 
with an explanation of how variances will be handled.
    (2) Revenues shall consist of all revenues generated by the service, 
including unbilled and uncollected revenues. If some users were not 
billed for the services (or were not billed at the full rate for that 
class of users), a schedule showing the full imputed revenues associated 
with these users shall be provided. Expenses shall be broken out by 
object cost categories (e.g., salaries, supplies, etc.).
    c. Self-insurance funds. For each self-insurance fund, the plan 
shall include: The fund balance sheet; a statement of revenue and 
expenses including a summary of billings and claims paid by agency; a 
listing of all non-operating transfers into and out of the fund; the 
type(s) of risk(s) covered by the fund (e.g., automobile liability, 
workers' compensation, etc.); an explanation of how the level of fund 
contributions are determined, including a copy of the current actuarial 
report (with the actuarial assumptions used) if the contributions are 
determined on an actuarial basis; and, a description of the procedures 
used to charge or allocate fund contributions to benefitted activities. 
Reserve levels in excess of claims submitted and adjudicated but not 
paid, submitted but not adjudicated, and incurred but not submitted must 
be identified and explained.
    d. Fringe benefits. For fringe benefit costs, the plan shall 
include: A listing of fringe benefits provided to covered employees, and 
the overall annual cost of each type of benefit; current fringe benefit 
policies*; and procedures used to charge or allocate the costs of the 
benefits to benefitted activities. In addition, for pension and post-
retirement health insurance plans, the following information shall be 
provided: the governmental unit's funding policies, e.g., legislative 
bills, trust agreements, or State-mandated contribution rules, if 
different from actuarially determined rates; the pension plan's costs 
accrued for the year; the amount funded, and date(s) of funding; a copy 
of the current actuarial report (including the actuarial assumptions); 
the plan trustee's report; and, a schedule from the activity showing the 
value of the interest cost associated with late funding.
    4. Required certification. Each central service cost allocation plan 
will be accompanied by a certification in the following form:

                   Certificate of Cost Allocation Plan

    This is to certify that I have reviewed the cost allocation plan 
submitted herewith and to the best of my knowledge and belief:
    (1) All costs included in this proposal [identify date] to establish 
cost allocations or billings for [identify period covered by plan] are 
allowable in accordance with the requirements of 2 CFR Part 225, Cost 
Principles for State, Local, and Indian Tribal Governments (OMB Circular 
A-87), and the Federal award(s) to which they apply. Unallowable costs 
have been adjusted for in allocating costs as indicated in the cost 
allocation plan.
    (2) All costs included in this proposal are properly allocable to 
Federal awards on the basis of a beneficial or causal relationship 
between the expenses incurred and the awards to which they are allocated 
in accordance with applicable requirements. Further, the same costs that 
have been treated as indirect costs have not been claimed as direct 
costs. Similar types of costs have been accounted for consistently.
    I declare that the foregoing is true and correct.

 Governmental Unit:_____________________________________________________

 Signature:_____________________________________________________________

 Name of Official:______________________________________________________

 Title:_________________________________________________________________

 Date of Execution:_____________________________________________________

    F. Negotiation and Approval of Central Service Plans.
    1. All proposed central service cost allocation plans that are 
required to be submitted will be reviewed, negotiated, and approved by 
the Federal cognizant agency on a timely basis. The cognizant agency 
will review the proposal within six months of receipt of the proposal 
and either negotiate/approve the proposal or advise the governmental 
unit of the additional documentation needed to support/evaluate the 
proposed plan or the changes required to make the proposal acceptable. 
Once an agreement with the governmental unit has been reached, the 
agreement will be accepted and used by all Federal agencies, unless 
prohibited or limited by statute. Where a Federal funding agency has 
reason to believe that special operating factors affecting its awards 
necessitate special consideration, the funding agency will, prior to the 
time the plans are negotiated, notify the cognizant agency.
    2. The results of each negotiation shall be formalized in a written 
agreement between the cognizant agency and the governmental unit. This 
agreement will be subject to re-opening if the agreement is subsequently 
found to violate a statute or the information

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upon which the plan was negotiated is later found to be materially 
incomplete or inaccurate. The results of the negotiation shall be made 
available to all Federal agencies for their use.
    3. Negotiated cost allocation plans based on a proposal later found 
to have included costs that: Are unallowable as specified by law or 
regulation, as identified in Appendix B of this part, or by the terms 
and conditions of Federal awards, or are unallowable because they are 
clearly not allocable to Federal awards, shall be adjusted, or a refund 
shall be made at the option of the Federal cognizant agency. These 
adjustments or refunds are designed to correct the plans and do not 
constitute a reopening of the negotiation.
    G. Other Policies.
    1. Billed central service activities. Each billed central service 
activity must separately account for all revenues (including imputed 
revenues) generated by the service, expenses incurred to furnish the 
service, and profit/loss.
    2. Working capital reserves. Internal service funds are dependent 
upon a reasonable level of working capital reserve to operate from one 
billing cycle to the next. Charges by an internal service activity to 
provide for the establishment and maintenance of a reasonable level of 
working capital reserve, in addition to the full recovery of costs, are 
allowable. A working capital reserve as part of retained earnings of up 
to 60 days cash expenses for normal operating purposes is considered 
reasonable. A working capital reserve exceeding 60 days may be approved 
by the cognizant Federal agency in exceptional cases.
    3. Carry-forward adjustments of allocated central service costs. 
Allocated central service costs are usually negotiated and approved for 
a future fiscal year on a ``fixed with carry-forward'' basis. Under this 
procedure, the fixed amounts for the future year covered by agreement 
are not subject to adjustment for that year. However, when the actual 
costs of the year involved become known, the differences between the 
fixed amounts previously approved and the actual costs will be carried 
forward and used as an adjustment to the fixed amounts established for a 
later year. This ``carry-forward'' procedure applies to all central 
services whose costs were fixed in the approved plan. However, a carry-
forward adjustment is not permitted, for a central service activity that 
was not included in the approved plan, or for unallowable costs that 
must be reimbursed immediately.
    4. Adjustments of billed central services. Billing rates used to 
charge Federal awards shall be based on the estimated costs of providing 
the services, including an estimate of the allocable central service 
costs. A comparison of the revenue generated by each billed service 
(including total revenues whether or not billed or collected) to the 
actual allowable costs of the service will be made at least annually, 
and an adjustment will be made for the difference between the revenue 
and the allowable costs. These adjustments will be made through one of 
the following adjustment methods: A cash refund to the Federal 
Government for the Federal share of the adjustment, credits to the 
amounts charged to the individual programs, adjustments to future 
billing rates, or adjustments to allocated central service costs. 
Adjustments to allocated central services will not be permitted where 
the total amount of the adjustment for a particular service (Federal 
share and non-Federal) share exceeds $500,000.
    5. Records retention. All central service cost allocation plans and 
related documentation used as a basis for claiming costs under Federal 
awards must be retained for audit in accordance with the records 
retention requirements contained in the Common Rule.
    6. Appeals. If a dispute arises in the negotiation of a plan between 
the cognizant agency and the governmental unit, the dispute shall be 
resolved in accordance with the appeals procedures of the cognizant 
agency.
    7. OMB assistance. To the extent that problems are encountered among 
the Federal agencies and/or governmental units in connection with the 
negotiation and approval process, OMB will lend assistance, as required, 
to resolve such problems in a timely manner.



  Sec. Appendix D to Part 225--Public Assistance Cost Allocation Plans

                            Table of Contents

A. General
B. Definitions
1. State public assistance agency
2. State public assistance agency costs
C. Policy
D. Submission, Documentation, and Approval of Public Assistance Cost 
          Allocation Plans
E. Review of Implementation of Approved Plans
F. Unallowable Costs
    A. General. Federally-financed programs administered by State public 
assistance agencies are funded predominately by the Department of Health 
and Human Services (HHS). In support of its stewardship requirements, 
HHS has published requirements for the development, documentation, 
submission, negotiation, and approval of public assistance cost 
allocation plans in Subpart E of 45 CFR part 95. All administrative 
costs (direct and indirect) are normally charged to Federal awards by 
implementing the public

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assistance cost allocation plan. This appendix extends these 
requirements to all Federal agencies whose programs are administered by 
a State public assistance agency. Major federally-financed programs 
typically administered by State public assistance agencies include: 
Temporary Assistance to Needy Families (TANF), Medicaid, Food Stamps, 
Child Support Enforcement, Adoption Assistance and Foster Care, and 
Social Services Block Grant.
    B. Definitions.
    1. ``State public assistance agency'' means a State agency 
administering or supervising the administration of one or more public 
assistance programs operated by the State as identified in Subpart E of 
45 CFR part 95. For the purpose of this appendix, these programs include 
all programs administered by the State public assistance agency.
    2. ``State public assistance agency costs'' means all costs incurred 
by, or allocable to, the State public assistance agency, except 
expenditures for financial assistance, medical vendor payments, food 
stamps, and payments for services and goods provided directly to program 
recipients.
    C. Policy. State public assistance agencies will develop, document 
and implement, and the Federal Government will review, negotiate, and 
approve, public assistance cost allocation plans in accordance with 
Subpart E of 45 CFR part 95. The plan will include all programs 
administered by the State public assistance agency. Where a letter of 
approval or disapproval is transmitted to a State public assistance 
agency in accordance with Subpart E, the letter will apply to all 
Federal agencies and programs. The remaining sections of this appendix 
(except for the requirement for certification) summarize the provisions 
of Subpart E of 45 CFR part 95.
    D. Submission, Documentation, and Approval of Public Assistance Cost 
Allocation Plans.
    1. State public assistance agencies are required to promptly submit 
amendments to the cost allocation plan to HHS for review and approval.
    2. Under the coordination process outlined in subsection E, affected 
Federal agencies will review all new plans and plan amendments and 
provide comments, as appropriate, to HHS. The effective date of the plan 
or plan amendment will be the first day of the quarter following the 
submission of the plan or amendment, unless another date is specifically 
approved by HHS. HHS, as the cognizant agency acting on behalf of all 
affected Federal agencies, will, as necessary, conduct negotiations with 
the State public assistance agency and will inform the State agency of 
the action taken on the plan or plan amendment.
    E. Review of Implementation of Approved Plans.
    1. Since public assistance cost allocation plans are of a narrative 
nature, the review during the plan approval process consists of 
evaluating the appropriateness of the proposed groupings of costs (cost 
centers) and the related allocation bases. As such, the Federal 
Government needs some assurance that the cost allocation plan has been 
implemented as approved. This is accomplished by reviews by the funding 
agencies, single audits, or audits conducted by the cognizant audit 
agency.
    2. Where inappropriate charges affecting more than one funding 
agency are identified, the cognizant HHS cost negotiation office will be 
advised and will take the lead in resolving the issue(s) as provided for 
in Subpart E of 45 CFR part 95.
    3. If a dispute arises in the negotiation of a plan or from a 
disallowance involving two or more funding agencies, the dispute shall 
be resolved in accordance with the appeals procedures set out in 45 CFR 
part 75. Disputes involving only one funding agency will be resolved in 
accordance with the funding agency's appeal process.
    4. To the extent that problems are encountered among the Federal 
agencies and/or governmental units in connection with the negotiation 
and approval process, the Office of Management and Budget will lend 
assistance, as required, to resolve such problems in a timely manner.
    F. Unallowable Costs. Claims developed under approved cost 
allocation plans will be based on allowable costs as identified in 2 CFR 
part 225. Where unallowable costs have been claimed and reimbursed, they 
will be refunded to the program that reimbursed the unallowable cost 
using one of the following methods: a cash refund, offset to a 
subsequent claim, or credits to the amounts charged to individual 
awards.



    Sec. Appendix E to Part 225--State and Local Indirect Cost Rate 
                                Proposals

                            Table of Contents

A. General
B. Definitions
1. Indirect cost rate proposal
2. Indirect cost rate
3. Indirect cost pool
4. Base
5. Predetermined rate
6. Fixed rate
7. Provisional rate
8. Final rate
9. Base period
C. Allocation of Indirect Costs and Determination of Indirect Cost Rates
1. General
2. Simplified method
3. Multiple allocation base method
4. Special indirect cost rates
D. Submission and Documentation of Proposals
1. Submission of indirect cost rate proposals

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2. Documentation of proposals
3. Required certification
E. Negotiation and Approval of Rates
F. Other Policies
1. Fringe benefit rates
2. Billed services provided by the grantee agency
3. Indirect cost allocations not using rates
4. Appeals
5. Collections of unallowable costs and erroneous payments
6. OMB assistance
A. General.
    1. Indirect costs are those that have been incurred for common or 
joint purposes. These costs benefit more than one cost objective and 
cannot be readily identified with a particular final cost objective 
without effort disproportionate to the results achieved. After direct 
costs have been determined and assigned directly to Federal awards and 
other activities as appropriate, indirect costs are those remaining to 
be allocated to benefitted cost objectives. A cost may not be allocated 
to a Federal award as an indirect cost if any other cost incurred for 
the same purpose, in like circumstances, has been assigned to a Federal 
award as a direct cost.
    2. Indirect costs include the indirect costs originating in each 
department or agency of the governmental unit carrying out Federal 
awards and the costs of central governmental services distributed 
through the central service cost allocation plan (as described in 
Appendix C to this part) and not otherwise treated as direct costs.
    3. Indirect costs are normally charged to Federal awards by the use 
of an indirect cost rate. A separate indirect cost rate(s) is usually 
necessary for each department or agency of the governmental unit 
claiming indirect costs under Federal awards. Guidelines and 
illustrations of indirect cost proposals are provided in a brochure 
published by the Department of Health and Human Services entitled ``A 
Guide for State and Local Government Agencies: Cost Principles and 
Procedures for Establishing Cost Allocation Plans and Indirect Cost 
Rates for Grants and Contracts with the Federal Government.'' A copy of 
this brochure may be obtained from the Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20401.
    4. Because of the diverse characteristics and accounting practices 
of governmental units, the types of costs which may be classified as 
indirect costs cannot be specified in all situations. However, typical 
examples of indirect costs may include certain State/local-wide central 
service costs, general administration of the grantee department or 
agency, accounting and personnel services performed within the grantee 
department or agency, depreciation or use allowances on buildings and 
equipment, the costs of operating and maintaining facilities, etc.
    5. This appendix does not apply to State public assistance agencies. 
These agencies should refer instead to Appendix D to this part.
    B. Definitions.
    1. ``Indirect cost rate proposal'' means the documentation prepared 
by a governmental unit or subdivision thereof to substantiate its 
request for the establishment of an indirect cost rate.
    2. ``Indirect cost rate'' is a device for determining in a 
reasonable manner the proportion of indirect costs each program should 
bear. It is the ratio (expressed as a percentage) of the indirect costs 
to a direct cost base.
    3. ``Indirect cost pool'' is the accumulated costs that jointly 
benefit two or more programs or other cost objectives.
    4. ``Base'' means the accumulated direct costs (normally either 
total direct salaries and wages or total direct costs exclusive of any 
extraordinary or distorting expenditures) used to distribute indirect 
costs to individual Federal awards. The direct cost base selected should 
result in each award bearing a fair share of the indirect costs in 
reasonable relation to the benefits received from the costs.
    5. ``Predetermined rate'' means an indirect cost rate, applicable to 
a specified current or future period, usually the governmental unit's 
fiscal year. This rate is based on an estimate of the costs to be 
incurred during the period. Except under very unusual circumstances, a 
predetermined rate is not subject to adjustment. (Because of legal 
constraints, predetermined rates are not permitted for Federal 
contracts; they may, however, be used for grants or cooperative 
agreements.) Predetermined rates may not be used by governmental units 
that have not submitted and negotiated the rate with the cognizant 
agency. In view of the potential advantages offered by this procedure, 
negotiation of predetermined rates for indirect costs for a period of 
two to four years should be the norm in those situations where the cost 
experience and other pertinent facts available are deemed sufficient to 
enable the parties involved to reach an informed judgment as to the 
probable level of indirect costs during the ensuing accounting periods.
    6. ``Fixed rate'' means an indirect cost rate which has the same 
characteristics as a predetermined rate, except that the difference 
between the estimated costs and the actual, allowable costs of the 
period covered by the rate is carried forward as an adjustment to the 
rate computation of a subsequent period.
    7. ``Provisional rate'' means a temporary indirect cost rate 
applicable to a specified period which is used for funding, interim 
reimbursement, and reporting indirect costs on Federal awards pending 
the establishment of a ``final'' rate for that period.

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    8. ``Final rate'' means an indirect cost rate applicable to a 
specified past period which is based on the actual allowable costs of 
the period. A final audited rate is not subject to adjustment.
    9. ``Base period'' for the allocation of indirect costs is the 
period in which such costs are incurred and accumulated for allocation 
to activities performed in that period. The base period normally should 
coincide with the governmental unit's fiscal year, but in any event, 
shall be so selected as to avoid inequities in the allocation of costs.
    C. Allocation of Indirect Costs and Determination of Indirect Cost 
Rates.
    1. General.
    a. Where a governmental unit's department or agency has only one 
major function, or where all its major functions benefit from the 
indirect costs to approximately the same degree, the allocation of 
indirect costs and the computation of an indirect cost rate may be 
accomplished through simplified allocation procedures as described in 
subsection 2 of this appendix.
    b. Where a governmental unit's department or agency has several 
major functions which benefit from its indirect costs in varying 
degrees, the allocation of indirect costs may require the accumulation 
of such costs into separate cost groupings which then are allocated 
individually to benefitted functions by means of a base which best 
measures the relative degree of benefit. The indirect costs allocated to 
each function are then distributed to individual awards and other 
activities included in that function by means of an indirect cost 
rate(s).
    c. Specific methods for allocating indirect costs and computing 
indirect cost rates along with the conditions under which each method 
should be used are described in subsections 2, 3 and 4 of this appendix.
    2. Simplified method.
    a. Where a grantee agency's major functions benefit from its 
indirect costs to approximately the same degree, the allocation of 
indirect costs may be accomplished by classifying the grantee agency's 
total costs for the base period as either direct or indirect, and 
dividing the total allowable indirect costs (net of applicable credits) 
by an equitable distribution base. The result of this process is an 
indirect cost rate which is used to distribute indirect costs to 
individual Federal awards. The rate should be expressed as the 
percentage which the total amount of allowable indirect costs bears to 
the base selected. This method should also be used where a governmental 
unit's department or agency has only one major function encompassing a 
number of individual projects or activities, and may be used where the 
level of Federal awards to that department or agency is relatively 
small.
    b. Both the direct costs and the indirect costs shall exclude 
capital expenditures and unallowable costs. However, unallowable costs 
must be included in the direct costs if they represent activities to 
which indirect costs are properly allocable.
    c. The distribution base may be total direct costs (excluding 
capital expenditures and other distorting items, such as pass-through 
funds, major subcontracts, etc.), direct salaries and wages, or another 
base which results in an equitable distribution.
    3. Multiple allocation base method.
    a. Where a grantee agency's indirect costs benefit its major 
functions in varying degrees, such costs shall be accumulated into 
separate cost groupings. Each grouping shall then be allocated 
individually to benefitted functions by means of a base which best 
measures the relative benefits.
    b. The cost groupings should be established so as to permit the 
allocation of each grouping on the basis of benefits provided to the 
major functions. Each grouping should constitute a pool of expenses that 
are of like character in terms of the functions they benefit and in 
terms of the allocation base which best measures the relative benefits 
provided to each function. The number of separate groupings should be 
held within practical limits, taking into consideration the materiality 
of the amounts involved and the degree of precision needed.
    c. Actual conditions must be taken into account in selecting the 
base to be used in allocating the expenses in each grouping to 
benefitted functions. When an allocation can be made by assignment of a 
cost grouping directly to the function benefitted, the allocation shall 
be made in that manner. When the expenses in a grouping are more general 
in nature, the allocation should be made through the use of a selected 
base which produces results that are equitable to both the Federal 
Government and the governmental unit. In general, any cost element or 
related factor associated with the governmental unit's activities is 
potentially adaptable for use as an allocation base provided that: it 
can readily be expressed in terms of dollars or other quantitative 
measures (total direct costs, direct salaries and wages, staff hours 
applied, square feet used, hours of usage, number of documents 
processed, population served, and the like), and it is common to the 
benefitted functions during the base period.
    d. Except where a special indirect cost rate(s) is required in 
accordance with subsection 4, the separate groupings of indirect costs 
allocated to each major function shall be aggregated and treated as a 
common pool for that function. The costs in the common pool shall then 
be distributed to individual Federal awards included in that function by 
use of a single indirect cost rate.
    e. The distribution base used in computing the indirect cost rate 
for each function may

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be total direct costs (excluding capital expenditures and other 
distorting items such as pass-through funds, major subcontracts, etc.), 
direct salaries and wages, or another base which results in an equitable 
distribution. An indirect cost rate should be developed for each 
separate indirect cost pool developed. The rate in each case should be 
stated as the percentage relationship between the particular indirect 
cost pool and the distribution base identified with that pool.
    4. Special indirect cost rates.
    a. In some instances, a single indirect cost rate for all activities 
of a grantee department or agency or for each major function of the 
agency may not be appropriate. It may not take into account those 
different factors which may substantially affect the indirect costs 
applicable to a particular program or group of programs. The factors may 
include the physical location of the work, the level of administrative 
support required, the nature of the facilities or other resources 
employed, the organizational arrangements used, or any combination 
thereof. When a particular award is carried out in an environment which 
appears to generate a significantly different level of indirect costs, 
provisions should be made for a separate indirect cost pool applicable 
to that award. The separate indirect cost pool should be developed 
during the course of the regular allocation process, and the separate 
indirect cost rate resulting therefrom should be used, provided that: 
the rate differs significantly from the rate which would have been 
developed under subsections 2. and 3. of this appendix, and the award to 
which the rate would apply is material in amount.
    b. Although 2 CFR part 225 adopts the concept of the full allocation 
of indirect costs, there are some Federal statutes which restrict the 
reimbursement of certain indirect costs. Where such restrictions exist, 
it may be necessary to develop a special rate for the affected award. 
Where a ``restricted rate'' is required, the procedure for developing a 
non-restricted rate will be used except for the additional step of the 
elimination from the indirect cost pool those costs for which the law 
prohibits reimbursement.
    D. Submission and Documentation of Proposals.
    1. Submission of indirect cost rate proposals.
    a. All departments or agencies of the governmental unit desiring to 
claim indirect costs under Federal awards must prepare an indirect cost 
rate proposal and related documentation to support those costs. The 
proposal and related documentation must be retained for audit in 
accordance with the records retention requirements contained in the 
Common Rule.
    b. A governmental unit for which a cognizant agency assignment has 
been specifically designated must submit its indirect cost rate proposal 
to its cognizant agency. The Office of Management and Budget (OMB) will 
periodically publish lists of governmental units identifying the 
appropriate Federal cognizant agencies. The cognizant agency for all 
governmental units or agencies not identified by OMB will be determined 
based on the Federal agency providing the largest amount of Federal 
funds. In these cases, a governmental unit must develop an indirect cost 
proposal in accordance with the requirements of 2 CFR 225 and maintain 
the proposal and related supporting documentation for audit. These 
governmental units are not required to submit their proposals unless 
they are specifically requested to do so by the cognizant agency. Where 
a local government only receives funds as a sub-recipient, the primary 
recipient will be responsible for negotiating and/or monitoring the sub-
recipient's plan.
    c. Each Indian tribal government desiring reimbursement of indirect 
costs must submit its indirect cost proposal to the Department of the 
Interior (its cognizant Federal agency).
    d. Indirect cost proposals must be developed (and, when required, 
submitted) within six months after the close of the governmental unit's 
fiscal year, unless an exception is approved by the cognizant Federal 
agency. If the proposed central service cost allocation plan for the 
same period has not been approved by that time, the indirect cost 
proposal may be prepared including an amount for central services that 
is based on the latest federally-approved central service cost 
allocation plan. The difference between these central service amounts 
and the amounts ultimately approved will be compensated for by an 
adjustment in a subsequent period.
    2. Documentation of proposals. The following shall be included with 
each indirect cost proposal:
    a. The rates proposed, including subsidiary work sheets and other 
relevant data, cross referenced and reconciled to the financial data 
noted in subsection b of this appendix. Allocated central service costs 
will be supported by the summary table included in the approved central 
service cost allocation plan. This summary table is not required to be 
submitted with the indirect cost proposal if the central service cost 
allocation plan for the same fiscal year has been approved by the 
cognizant agency and is available to the funding agency.
    b. A copy of the financial data (financial statements, comprehensive 
annual financial report, executive budgets, accounting reports, etc.) 
upon which the rate is based. Adjustments resulting from the use of 
unaudited data will be recognized, where appropriate, by the Federal 
cognizant agency in a subsequent proposal.
    c. The approximate amount of direct base costs incurred under 
Federal awards. These

[[Page 181]]

costs should be broken out between salaries and wages and other direct 
costs.
    d. A chart showing the organizational structure of the agency during 
the period for which the proposal applies, along with a functional 
statement(s) noting the duties and/or responsibilities of all units that 
comprise the agency. (Once this is submitted, only revisions need be 
submitted with subsequent proposals.)
    3. Required certification. Each indirect cost rate proposal shall be 
accompanied by a certification in the following form:

                      Certificate of Indirect Costs

    This is to certify that I have reviewed the indirect cost rate 
proposal submitted herewith and to the best of my knowledge and belief:
    (1) All costs included in this proposal [identify date] to establish 
billing or final indirect costs rates for [identify period covered by 
rate] are allowable in accordance with the requirements of the Federal 
award(s) to which they apply and 2 CFR part 225, Cost Principles for 
State, Local, and Indian Tribal Governments (OMB Circular A-87). 
Unallowable costs have been adjusted for in allocating costs as 
indicated in the cost allocation plan.
    (2) All costs included in this proposal are properly allocable to 
Federal awards on the basis of a beneficial or causal relationship 
between the expenses incurred and the agreements to which they are 
allocated in accordance with applicable requirements. Further, the same 
costs that have been treated as indirect costs have not been claimed as 
direct costs. Similar types of costs have been accounted for 
consistently and the Federal Government will be notified of any 
accounting changes that would affect the predetermined rate.
    I declare that the foregoing is true and correct.

 Governmental Unit:_____________________________________________________

 Signature:_____________________________________________________________

 Name of Official:______________________________________________________

 Title:_________________________________________________________________

 Date of Execution:_____________________________________________________

    E. Negotiation and Approval of Rates.
    1. Indirect cost rates will be reviewed, negotiated, and approved by 
the cognizant Federal agency on a timely basis. Once a rate has been 
agreed upon, it will be accepted and used by all Federal agencies unless 
prohibited or limited by statute. Where a Federal funding agency has 
reason to believe that special operating factors affecting its awards 
necessitate special indirect cost rates, the funding agency will, prior 
to the time the rates are negotiated, notify the cognizant Federal 
agency.
    2. The use of predetermined rates, if allowed, is encouraged where 
the cognizant agency has reasonable assurance based on past experience 
and reliable projection of the grantee agency's costs, that the rate is 
not likely to exceed a rate based on actual costs. Long-term agreements 
utilizing predetermined rates extending over two or more years are 
encouraged, where appropriate.
    3. The results of each negotiation shall be formalized in a written 
agreement between the cognizant agency and the governmental unit. This 
agreement will be subject to re-opening if the agreement is subsequently 
found to violate a statute, or the information upon which the plan was 
negotiated is later found to be materially incomplete or inaccurate. The 
agreed upon rates shall be made available to all Federal agencies for 
their use.
    4. Refunds shall be made if proposals are later found to have 
included costs that are unallowable as specified by law or regulation, 
as identified in Appendix B to this part, or by the terms and conditions 
of Federal awards, or are unallowable because they are clearly not 
allocable to Federal awards. These adjustments or refunds will be made 
regardless of the type of rate negotiated (predetermined, final, fixed, 
or provisional).
    F. Other Policies.
    1. Fringe benefit rates. If overall fringe benefit rates are not 
approved for the governmental unit as part of the central service cost 
allocation plan, these rates will be reviewed, negotiated and approved 
for individual grantee agencies during the indirect cost negotiation 
process. In these cases, a proposed fringe benefit rate computation 
should accompany the indirect cost proposal. If fringe benefit rates are 
not used at the grantee agency level (i.e., the agency specifically 
identifies fringe benefit costs to individual employees), the 
governmental unit should so advise the cognizant agency.
    2. Billed services provided by the grantee agency. In some cases, 
governmental units provide and bill for services similar to those 
covered by central service cost allocation plans (e.g., computer 
centers). Where this occurs, the governmental unit should be guided by 
the requirements in Appendix C to this part relating to the development 
of billing rates and documentation requirements, and should advise the 
cognizant agency of any billed services. Reviews of these types of 
services (including reviews of costing/billing methodology, profits or 
losses, etc.) will be made on a case-by-case basis as warranted by the 
circumstances involved.
    3. Indirect cost allocations not using rates. In certain situations, 
a governmental unit, because of the nature of its awards, may be 
required to develop a cost allocation plan that distributes indirect 
(and, in some cases, direct) costs to the specific funding sources. In 
these cases, a narrative cost allocation methodology should be 
developed, documented, maintained for audit, or submitted,

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as appropriate, to the cognizant agency for review, negotiation, and 
approval.
    4. Appeals. If a dispute arises in a negotiation of an indirect cost 
rate (or other rate) between the cognizant agency and the governmental 
unit, the dispute shall be resolved in accordance with the appeals 
procedures of the cognizant agency.
    5. Collection of unallowable costs and erroneous payments. Costs 
specifically identified as unallowable and charged to Federal awards 
either directly or indirectly will be refunded (including interest 
chargeable in accordance with applicable Federal agency regulations).
    6. OMB assistance. To the extent that problems are encountered among 
the Federal agencies and/or governmental units in connection with the 
negotiation and approval process, OMB will lend assistance, as required, 
to resolve such problems in a timely manner.

                        PARTS 226	229 [RESERVED]



PART 230_COST PRINCIPLES FOR NON-PROFIT ORGANIZATIONS (OMB CIRCULAR A	122)--Table of Contents



Sec.
230.5 Purpose.
230.10 Scope.
230.15 Policy.
230.20 Applicability.
230.25 Definitions
230.30 OMB responsibilities.
230.35 Federal agency responsibilities.
230.40 Effective date of changes.
230.45 Relationship to previous issuance.
230.50 Information Contact.

Appendix A to Part 230--General Principles
Appendix B to Part 230--Selected Items of Cost
Appendix C to Part 230--Non-Profit Organizations Not Subject to This 
          Part

    Authority: 31 U.S.C. 503; 31 U.S.C. 1111; 41 U.S.C. 405; 
Reorganization Plan No. 2 of 1970; E.O. 11541, 35 FR 10737, 3 CFR, 1966-
1970, p. 939

    Source: 70 FR 51927, Aug. 31, 2005, unless otherwise noted.



Sec. 230.5  Purpose.

    This part establishes principles for determining costs of grants, 
contracts and other agreements with non-profit organizations.



Sec. 230.10  Scope.

    (a) This part does not apply to colleges and universities which are 
covered by 2 CFR part 220 Cost Principles for Educational Institutions 
(OMB Circular A-21); State, local, and federally-recognized Indian 
tribal governments which are covered by 2 CFR part 225 Cost Principles 
for State, Local, and Indian Tribal Governments (OMB Circular A-87); or 
hospitals.
    (b) The principles deal with the subject of cost determination, and 
make no attempt to identify the circumstances or dictate the extent of 
agency and non-profit organization participation in the financing of a 
particular project. Provision for profit or other increment above cost 
is outside the scope of this part.



Sec. 230.15  Policy.

    The principles are designed to provide that the Federal Government 
bear its fair share of costs except where restricted or prohibited by 
law. The principles do not attempt to prescribe the extent of cost 
sharing or matching on grants, contracts, or other agreements. However, 
such cost sharing or matching shall not be accomplished through 
arbitrary limitations on individual cost elements by Federal agencies.



Sec. 230.20  Applicability.

    (a) These principles shall be used by all Federal agencies in 
determining the costs of work performed by non-profit organizations 
under grants, cooperative agreements, cost reimbursement contracts, and 
other contracts in which costs are used in pricing, administration, or 
settlement. All of these instruments are hereafter referred to as 
awards. The principles do not apply to awards under which an 
organization is not required to account to the Federal Government for 
actual costs incurred.
    (b) All cost reimbursement subawards (subgrants, subcontracts, etc.) 
are subject to those Federal cost principles applicable to the 
particular organization concerned. Thus, if a subaward is to a non-
profit organization, this part shall apply; if a subaward is to a 
commercial organization, the cost principles applicable to commercial 
concerns shall apply; if a subaward is to a college or university, 2 CFR 
part 220 shall apply; if a subaward is to a State, local, or federally-
recognized Indian tribal government, 2 CFR part 225 shall apply.

[[Page 183]]

    (c) Exclusion of some non-profit organizations. Some non-profit 
organizations, because of their size and nature of operations, can be 
considered to be similar to commercial concerns for purpose of 
applicability of cost principles. Such non-profit organizations shall 
operate under Federal cost principles applicable to commercial concerns. 
A listing of these organizations is contained in appendix C to this 
part. Other organizations may be added from time to time.



Sec. 230.25  Definitions.

    (a) Non-profit organization means any corporation, trust, 
association, cooperative, or other organization which:
    (1) Is operated primarily for scientific, educational, service, 
charitable, or similar purposes in the public interest;
    (2) Is not organized primarily for profit; and
    (3) Uses its net proceeds to maintain, improve, and/or expand its 
operations. For this purpose, the term ``non-profit organization'' 
excludes colleges and universities; hospitals; State, local, and 
federally-recognized Indian tribal governments; and those non-profit 
organizations which are excluded from coverage of this part in 
accordance with Sec. 230.20(c).
    (b) Prior approval means securing the awarding agency's permission 
in advance to incur cost for those items that are designated as 
requiring prior approval by the part and its appendices. Generally this 
permission will be in writing. Where an item of cost requiring prior 
approval is specified in the budget of an award, approval of the budget 
constitutes approval of that cost.



Sec. 230.30  OMB responsibilities.

    OMB may grant exceptions to the requirements of this part when 
permissible under existing law. However, in the interest of achieving 
maximum uniformity, exceptions will be permitted only in highly unusual 
circumstances.



Sec. 230.35  Federal agency responsibilities.

    The head of each Federal agency that awards and administers grants 
and agreements subject to this part is responsible for requesting 
approval from and/or consulting with OMB (as applicable) for deviations 
from the guidance in the appendices to this part and performing the 
applicable functions specified in the appendices to this part.



Sec. 230.40  Effective date of changes.

    The provisions of this part are effective August 31, 2005. 
Implementation shall be phased in by incorporating the provisions into 
new awards made after the start of the organization's next fiscal year. 
For existing awards, the new principles may be applied if an 
organization and the cognizant Federal agency agree. Earlier 
implementation, or a delay in implementation of individual provisions, 
is also permitted by mutual agreement between an organization and the 
cognizant Federal agency.



Sec. 230.45  Relationship to previous issuance.

    (a) The guidance in this part previously was issued as OMB Circular 
A-122. Appendix A to this part contains the guidance that was in 
Attachment A (general principles) to the OMB circular; appendix B 
contains the guidance that was in Attachment B (selected items of cost) 
to the OMB circular; and appendix C contains the information that was in 
Attachment C (non-profit organizations not subject to the Circular) to 
the OMB circular.
    (b) Historically, OMB Circular A-122 superseded cost principles 
issued by individual agencies for non-profit organizations.



Sec. 230.50  Information contact.

    Further information concerning this part may be obtained by 
contacting the Office of Federal Financial Management, OMB, Washington, 
DC 20503, telephone (202) 395-3993.



             Sec. Appendix A to Part 230--General Principles

                           General Principles

                            Table of Contents

A. Basic Considerations
1. Composition of total costs
2. Factors affecting allowability of costs
3. Reasonable costs
4. Allocable costs

[[Page 184]]

5. Applicable credits
6. Advance understandings
7. Conditional exemptions
B. Direct Costs
C. Indirect Costs
D. Allocation of Indirect Costs and Determination of Indirect Cost Rates
1. General
2. Simplified allocation method
3. Multiple allocation base method
4. Direct allocation method
5. Special indirect cost rates
E. Negotiation and Approval of Indirect Cost Rates
1. Definitions
2. Negotiation and approval of rates

                           General Principles

                         A. Basic Considerations

    1. Composition of total costs. The total cost of an award is the sum 
of the allowable direct and allocable indirect costs less any applicable 
credits.
    2. Factors affecting allowability of costs. To be allowable under an 
award, costs must meet the following general criteria:
    a. Be reasonable for the performance of the award and be allocable 
thereto under these principles.
    b. Conform to any limitations or exclusions set forth in these 
principles or in the award as to types or amount of cost items.
    c. Be consistent with policies and procedures that apply uniformly 
to both federally-financed and other activities of the organization.
    d. Be accorded consistent treatment.
    e. Be determined in accordance with generally accepted accounting 
principles (GAAP).
    f. Not be included as a cost or used to meet cost sharing or 
matching requirements of any other federally-financed program in either 
the current or a prior period.
    g. Be adequately documented.
    3. Reasonable costs. A cost is reasonable if, in its nature or 
amount, it does not exceed that which would be incurred by a prudent 
person under the circumstances prevailing at the time the decision was 
made to incur the costs. The question of the reasonableness of specific 
costs must be scrutinized with particular care in connection with 
organizations or separate divisions thereof which receive the 
preponderance of their support from awards made by Federal agencies. In 
determining the reasonableness of a given cost, consideration shall be 
given to:
    a. Whether the cost is of a type generally recognized as ordinary 
and necessary for the operation of the organization or the performance 
of the award.
    b. The restraints or requirements imposed by such factors as 
generally accepted sound business practices, arms length bargaining, 
Federal and State laws and regulations, and terms and conditions of the 
award.
    c. Whether the individuals concerned acted with prudence in the 
circumstances, considering their responsibilities to the organization, 
its members, employees, and clients, the public at large, and the 
Federal Government.
    d. Significant deviations from the established practices of the 
organization which may unjustifiably increase the award costs.
    4. Allocable costs. a. A cost is allocable to a particular cost 
objective, such as a grant, contract, project, service, or other 
activity, in accordance with the relative benefits received. A cost is 
allocable to a Federal award if it is treated consistently with other 
costs incurred for the same purpose in like circumstances and if it:
    (1) Is incurred specifically for the award.
    (2) Benefits both the award and other work and can be distributed in 
reasonable proportion to the benefits received, or
    (3) Is necessary to the overall operation of the organization, 
although a direct relationship to any particular cost objective cannot 
be shown.
    b. Any cost allocable to a particular award or other cost objective 
under these principles may not be shifted to other Federal awards to 
overcome funding deficiencies, or to avoid restrictions imposed by law 
or by the terms of the award.
    5. Applicable credits. a. The term applicable credits refers to 
those receipts, or reduction of expenditures which operate to offset or 
reduce expense items that are allocable to awards as direct or indirect 
costs. Typical examples of such transactions are: Purchase discounts, 
rebates or allowances, recoveries or indemnities on losses, insurance 
refunds, and adjustments of overpayments or erroneous charges. To the 
extent that such credits accruing or received by the organization relate 
to allowable cost, they shall be credited to the Federal Government 
either as a cost reduction or cash refund, as appropriate.
    b. In some instances, the amounts received from the Federal 
Government to finance organizational activities or service operations 
should be treated as applicable credits. Specifically, the concept of 
netting such credit items against related expenditures should be applied 
by the organization in determining the rates or amounts to be charged to 
Federal awards for services rendered whenever the facilities or other 
resources used in providing such services have been financed directly, 
in whole or in part, by Federal funds.
    c. For rules covering program income (i.e., gross income earned from 
federally-supported activities) see Sec. 215.24 of 2 CFR part 215 
Uniform Administrative Requirements for Grants and Agreements with 
Institutions of Higher Education, Hospitals, and Other

[[Page 185]]

Non-Profit Organizations (OMB Circular A-110).
    6. Advance understandings. Under any given award, the reasonableness 
and allocability of certain items of costs may be difficult to 
determine. This is particularly true in connection with organizations 
that receive a preponderance of their support from Federal agencies. In 
order to avoid subsequent disallowance or dispute based on 
unreasonableness or nonallocability, it is often desirable to seek a 
written agreement with the cognizant or awarding agency in advance of 
the incurrence of special or unusual costs. The absence of an advance 
agreement on any element of cost will not, in itself, affect the 
reasonableness or allocability of that element.
    7. Conditional exemptions. a. OMB authorizes conditional exemption 
from OMB administrative requirements and cost principles for certain 
Federal programs with statutorily-authorized consolidated planning and 
consolidated administrative funding, that are identified by a Federal 
agency and approved by the head of the Executive department or 
establishment. A Federal agency shall consult with OMB during its 
consideration of whether to grant such an exemption.
    b. To promote efficiency in State and local program administration, 
when Federal non-entitlement programs with common purposes have specific 
statutorily-authorized consolidated planning and consolidated 
administrative funding and where most of the State agency's resources 
come from non-Federal sources, Federal agencies may exempt these covered 
State-administered, non-entitlement grant programs from certain OMB 
grants management requirements. The exemptions would be from all but the 
allocability of costs provisions of Appendix A, subsection C.e. of 2 CFR 
part 225 (OMB Circular A-87); Appendix A, Section C.4. of 2 CFR part 220 
(OMB Circular A-21); Section A.4. of this appendix; and from all of the 
administrative requirements provisions of 2 CFR part 215 (OMB Circular 
A-110) and the agencies' grants management common rule.
    c. When a Federal agency provides this flexibility, as a 
prerequisite to a State's exercising this option, a State must adopt its 
own written fiscal and administrative requirements for expending and 
accounting for all funds, which are consistent with the provisions of 2 
CFR part 225 (OMB Circular A-87), and extend such policies to all 
subrecipients. These fiscal and administrative requirements must be 
sufficiently specific to ensure that: Funds are used in compliance with 
all applicable Federal statutory and regulatory provisions, costs are 
reasonable and necessary for operating these programs, and funds are not 
to be used for general expenses required to carry out other 
responsibilities of a State or its subrecipients.

                             B. Direct Costs

    1. Direct costs are those that can be identified specifically with a 
particular final cost objective, i.e., a particular award, project, 
service, or other direct activity of an organization. However, a cost 
may not be assigned to an award as a direct cost if any other cost 
incurred for the same purpose, in like circumstance, has been allocated 
to an award as an indirect cost. Costs identified specifically with 
awards are direct costs of the awards and are to be assigned directly 
thereto. Costs identified specifically with other final cost objectives 
of the organization are direct costs of those cost objectives and are 
not to be assigned to other awards directly or indirectly.
    2. Any direct cost of a minor amount may be treated as an indirect 
cost for reasons of practicality where the accounting treatment for such 
cost is consistently applied to all final cost objectives.
    3. The cost of certain activities are not allowable as charges to 
Federal awards (see, for example, fundraising costs in paragraph 17 of 
Appendix B to this part). However, even though these costs are 
unallowable for purposes of computing charges to Federal awards, they 
nonetheless must be treated as direct costs for purposes of determining 
indirect cost rates and be allocated their share of the organization's 
indirect costs if they represent activities which include the salaries 
of personnel, occupy space, and benefit from the organization's indirect 
costs.
    4. The costs of activities performed primarily as a service to 
members, clients, or the general public when significant and necessary 
to the organization's mission must be treated as direct costs whether or 
not allowable and be allocated an equitable share of indirect costs. 
Some examples of these types of activities include:
    a. Maintenance of membership rolls, subscriptions, publications, and 
related functions.
    b. Providing services and information to members, legislative or 
administrative bodies, or the public.
    c. Promotion, lobbying, and other forms of public relations.
    d. Meetings and conferences except those held to conduct the general 
administration of the organization.
    e. Maintenance, protection, and investment of special funds not used 
in operation of the organization.
    f. Administration of group benefits on behalf of members or clients, 
including life and hospital insurance, annuity or retirement plans, 
financial aid, etc.

                            C. Indirect Costs

    1. Indirect costs are those that have been incurred for common or 
joint objectives and

[[Page 186]]

cannot be readily identified with a particular final cost objective. 
Direct cost of minor amounts may be treated as indirect costs under the 
conditions described in subparagraph B.2 of this appendix. After direct 
costs have been determined and assigned directly to awards or other work 
as appropriate, indirect costs are those remaining to be allocated to 
benefiting cost objectives. A cost may not be allocated to an award as 
an indirect cost if any other cost incurred for the same purpose, in 
like circumstances, has been assigned to an award as a direct cost.
    2. Because of the diverse characteristics and accounting practices 
of non-profit organizations, it is not possible to specify the types of 
cost which may be classified as indirect cost in all situations. 
However, typical examples of indirect cost for many non-profit 
organizations may include depreciation or use allowances on buildings 
and equipment, the costs of operating and maintaining facilities, and 
general administration and general expenses, such as the salaries and 
expenses of executive officers, personnel administration, and 
accounting.
    3. Indirect costs shall be classified within two broad categories: 
``Facilities'' and ``Administration.'' ``Facilities'' is defined as 
depreciation and use allowances on buildings, equipment and capital 
improvement, interest on debt associated with certain buildings, 
equipment and capital improvements, and operations and maintenance 
expenses. ``Administration'' is defined as general administration and 
general expenses such as the director's office, accounting, personnel, 
library expenses and all other types of expenditures not listed 
specifically under one of the subcategories of ``Facilities'' (including 
cross allocations from other pools, where applicable). See indirect cost 
rate reporting requirements in subparagraphs D.2.e and D.3.g of this 
appendix.

D. Allocation of Indirect Costs and Determination of Indirect Cost Rates

    1. General. a. Where a non-profit organization has only one major 
function, or where all its major functions benefit from its indirect 
costs to approximately the same degree, the allocation of indirect costs 
and the computation of an indirect cost rate may be accomplished through 
simplified allocation procedures, as described in subparagraph D.2 of 
this appendix.
    b. Where an organization has several major functions which benefit 
from its indirect costs in varying degrees, allocation of indirect costs 
may require the accumulation of such costs into separate cost groupings 
which then are allocated individually to benefiting functions by means 
of a base which best measures the relative degree of benefit. The 
indirect costs allocated to each function are then distributed to 
individual awards and other activities included in that function by 
means of an indirect cost rate(s).
    c. The determination of what constitutes an organization's major 
functions will depend on its purpose in being; the types of services it 
renders to the public, its clients, and its members; and the amount of 
effort it devotes to such activities as fundraising, public information 
and membership activities.
    d. Specific methods for allocating indirect costs and computing 
indirect cost rates along with the conditions under which each method 
should be used are described in subparagraphs D.2 through 5 of this 
appendix.
    e. The base period for the allocation of indirect costs is the 
period in which such costs are incurred and accumulated for allocation 
to work performed in that period. The base period normally should 
coincide with the organization's fiscal year but, in any event, shall be 
so selected as to avoid inequities in the allocation of the costs.
    2. Simplified allocation method. a. Where an organization's major 
functions benefit from its indirect costs to approximately the same 
degree, the allocation of indirect costs may be accomplished by 
separating the organization's total costs for the base period as either 
direct or indirect, and dividing the total allowable indirect costs (net 
of applicable credits) by an equitable distribution base. The result of 
this process is an indirect cost rate which is used to distribute 
indirect costs to individual awards. The rate should be expressed as the 
percentage which the total amount of allowable indirect costs bears to 
the base selected. This method should also be used where an organization 
has only one major function encompassing a number of individual projects 
or activities, and may be used where the level of Federal awards to an 
organization is relatively small.
    b. Both the direct costs and the indirect costs shall exclude 
capital expenditures and unallowable costs. However, unallowable costs 
which represent activities must be included in the direct costs under 
the conditions described in subparagraph B.3 of this appendix.
    c. The distribution base may be total direct costs (excluding 
capital expenditures and other distorting items, such as major 
subcontracts or subgrants), direct salaries and wages, or other base 
which results in an equitable distribution. The distribution base shall 
generally exclude participant support costs as defined in paragraph 32 
of Appendix B.
    d. Except where a special rate(s) is required in accordance with 
subparagraph 5 of this appendix, the indirect cost rate developed under 
the above principles is applicable to all awards at the organization. If 
a special rate(s) is required, appropriate modifications

[[Page 187]]

shall be made in order to develop the special rate(s).
    e. For an organization that receives more than $10 million in 
Federal funding of direct costs in a fiscal year, a breakout of the 
indirect cost component into two broad categories, Facilities and 
Administration as defined in subparagraph C.3 of this appendix, is 
required. The rate in each case shall be stated as the percentage which 
the amount of the particular indirect cost category (i.e., Facilities or 
Administration) is of the distribution base identified with that 
category.
    3. Multiple allocation base method.
    a. General. Where an organization's indirect costs benefit its major 
functions in varying degrees, indirect costs shall be accumulated into 
separate cost groupings, as described in subparagraph D.3.b of this 
appendix. Each grouping shall then be allocated individually to 
benefiting functions by means of a base which best measures the relative 
benefits. The default allocation bases by cost pool are described in 
subparagraph D.3.c of this appendix.
    b. Identification of indirect costs. Cost groupings shall be 
established so as to permit the allocation of each grouping on the basis 
of benefits provided to the major functions. Each grouping shall 
constitute a pool of expenses that are of like character in terms of 
functions they benefit and in terms of the allocation base which best 
measures the relative benefits provided to each function. The groupings 
are classified within the two broad categories: ``Facilities'' and 
``Administration,'' as described in subparagraph C.3 of this appendix. 
The indirect cost pools are defined as follows:
    (1) Depreciation and use allowances. The expenses under this heading 
are the portion of the costs of the organization's buildings, capital 
improvements to land and buildings, and equipment which are computed in 
accordance with paragraph 11 of Appendix B to this part (``Depreciation 
and use allowances'').
    (2) Interest. Interest on debt associated with certain buildings, 
equipment and capital improvements are computed in accordance with 
paragraph 23 of Appendix B to this part (``Interest'').
    (3) Operation and maintenance expenses. The expenses under this 
heading are those that have been incurred for the administration, 
operation, maintenance, preservation, and protection of the 
organization's physical plant. They include expenses normally incurred 
for such items as: Janitorial and utility services; repairs and ordinary 
or normal alterations of buildings, furniture and equipment; care of 
grounds; maintenance and operation of buildings and other plant 
facilities; security; earthquake and disaster preparedness; 
environmental safety; hazardous waste disposal; property, liability and 
other insurance relating to property; space and capital leasing; 
facility planning and management; and, central receiving. The operation 
and maintenance expenses category shall also include its allocable share 
of fringe benefit costs, depreciation and use allowances, and interest 
costs.
    (4) General administration and general expenses. (a) The expenses 
under this heading are those that have been incurred for the overall 
general executive and administrative offices of the organization and 
other expenses of a general nature which do not relate solely to any 
major function of the organization. This category shall also include its 
allocable share of fringe benefit costs, operation and maintenance 
expense, depreciation and use allowances, and interest costs. Examples 
of this category include central offices, such as the director's office, 
the office of finance, business services, budget and planning, 
personnel, safety and risk management, general counsel, management 
information systems, and library costs.
    (b) In developing this cost pool, special care should be exercised 
to ensure that costs incurred for the same purpose in like circumstances 
are treated consistently as either direct or indirect costs. For 
example, salaries of technical staff, project supplies, project 
publication, telephone toll charges, computer costs, travel costs, and 
specialized services costs shall be treated as direct costs wherever 
identifiable to a particular program. The salaries and wages of 
administrative and pooled clerical staff should normally be treated as 
indirect costs. Direct charging of these costs may be appropriate where 
a major project or activity explicitly requires and budgets for 
administrative or clerical services and other individuals involved can 
be identified with the program or activity. Items such as office 
supplies, postage, local telephone costs, periodicals and memberships 
should normally be treated as indirect costs.
    c. Allocation bases. Actual conditions shall be taken into account 
in selecting the base to be used in allocating the expenses in each 
grouping to benefiting functions. The essential consideration in 
selecting a method or a base is that it is the one best suited for 
assigning the pool of costs to cost objectives in accordance with 
benefits derived; a traceable cause and effect relationship; or logic 
and reason, where neither the cause nor the effect of the relationship 
is determinable. When an allocation can be made by assignment of a cost 
grouping directly to the function benefited, the allocation shall be 
made in that manner. When the expenses in a cost grouping are more 
general in nature, the allocation shall be made through the use of a 
selected base which produces results that are equitable to both the 
Federal Government and the organization. The distribution shall be made 
in accordance with the bases described herein unless it can be 
demonstrated

[[Page 188]]

that the use of a different base would result in a more equitable 
allocation of the costs, or that a more readily available base would not 
increase the costs charged to sponsored awards. The results of special 
cost studies (such as an engineering utility study) shall not be used to 
determine and allocate the indirect costs to sponsored awards.
    (1) Depreciation and use allowances. Depreciation and use allowances 
expenses shall be allocated in the following manner:
    (a) Depreciation or use allowances on buildings used exclusively in 
the conduct of a single function, and on capital improvements and 
equipment used in such buildings, shall be assigned to that function.
    (b) Depreciation or use allowances on buildings used for more than 
one function, and on capital improvements and equipment used in such 
buildings, shall be allocated to the individual functions performed in 
each building on the basis of usable square feet of space, excluding 
common areas, such as hallways, stairwells, and restrooms.
    (c) Depreciation or use allowances on buildings, capital 
improvements and equipment related space (e.g., individual rooms, and 
laboratories) used jointly by more than one function (as determined by 
the users of the space) shall be treated as follows. The cost of each 
jointly used unit of space shall be allocated to the benefiting 
functions on the basis of either the employees and other users on a 
full-time equivalent (FTE) basis or salaries and wages of those 
individual functions benefiting from the use of that space; or 
organization-wide employee FTEs or salaries and wages applicable to the 
benefiting functions of the organization.
    (d) Depreciation or use allowances on certain capital improvements 
to land, such as paved parking areas, fences, sidewalks, and the like, 
not included in the cost of buildings, shall be allocated to user 
categories on a FTE basis and distributed to major functions in 
proportion to the salaries and wages of all employees applicable to the 
functions.
    (2) Interest. Interest costs shall be allocated in the same manner 
as the depreciation or use allowances on the buildings, equipment and 
capital equipments to which the interest relates.
    (3) Operation and maintenance expenses. Operation and maintenance 
expenses shall be allocated in the same manner as the depreciation and 
use allowances.
    (4) General administration and general expenses. General 
administration and general expenses shall be allocated to benefiting 
functions based on modified total direct costs (MTDC), as described in 
subparagraph D.3.f of this appendix. The expenses included in this 
category could be grouped first according to major functions of the 
organization to which they render services or provide benefits. The 
aggregate expenses of each group shall then be allocated to benefiting 
functions based on MTDC.
    d. Order of distribution. (1) Indirect cost categories consisting of 
depreciation and use allowances, interest, operation and maintenance, 
and general administration and general expenses shall be allocated in 
that order to the remaining indirect cost categories as well as to the 
major functions of the organization. Other cost categories could be 
allocated in the order determined to be most appropriate by the 
organization. When cross allocation of costs is made as provided in 
subparagraph D.3.d.(2) of this appendix, this order of allocation does 
not apply.
    (2) Normally, an indirect cost category will be considered closed 
once it has been allocated to other cost objectives, and costs shall not 
be subsequently allocated to it. However, a cross allocation of costs 
between two or more indirect costs categories could be used if such 
allocation will result in a more equitable allocation of costs. If a 
cross allocation is used, an appropriate modification to the composition 
of the indirect cost categories is required.
    e. Application of indirect cost rate or rates. Except where a 
special indirect cost rate(s) is required in accordance with 
subparagraph D.5 of this appendix, the separate groupings of indirect 
costs allocated to each major function shall be aggregated and treated 
as a common pool for that function. The costs in the common pool shall 
then be distributed to individual awards included in that function by 
use of a single indirect cost rate.
    f. Distribution basis. Indirect costs shall be distributed to 
applicable sponsored awards and other benefiting activities within each 
major function on the basis of MTDC. MTDC consists of all salaries and 
wages, fringe benefits, materials and supplies, services, travel, and 
subgrants and subcontracts up to the first $25,000 of each subgrant or 
subcontract (regardless of the period covered by the subgrant or 
subcontract). Equipment, capital expenditures, charges for patient care, 
rental costs and the portion in excess of $25,000 shall be excluded from 
MTDC. Participant support costs shall generally be excluded from MTDC. 
Other items may only be excluded when the Federal cost cognizant agency 
determines that an exclusion is necessary to avoid a serious inequity in 
the distribution of indirect costs.
    g. Individual Rate Components. An indirect cost rate shall be 
determined for each separate indirect cost pool developed. The rate in 
each case shall be stated as the percentage which the amount of the 
particular indirect cost pool is of the distribution base identified 
with that pool. Each indirect cost rate negotiation or determination 
agreement shall include development of the rate for each indirect cost 
pool as well as the overall indirect cost rate. The indirect cost pools

[[Page 189]]

shall be classified within two broad categories: ``Facilities'' and 
``Administration,'' as described in subparagraph C.3 of this appendix.
    4. Direct allocation method. a. Some non-profit organizations treat 
all costs as direct costs except general administration and general 
expenses. These organizations generally separate their costs into three 
basic categories: General administration and general expenses, 
fundraising, and other direct functions (including projects performed 
under Federal awards). Joint costs, such as depreciation, rental costs, 
operation and maintenance of facilities, telephone expenses, and the 
like are prorated individually as direct costs to each category and to 
each award or other activity using a base most appropriate to the 
particular cost being prorated.
    b. This method is acceptable, provided each joint cost is prorated 
using a base which accurately measures the benefits provided to each 
award or other activity. The bases must be established in accordance 
with reasonable criteria, and be supported by current data. This method 
is compatible with the Standards of Accounting and Financial Reporting 
for Voluntary Health and Welfare Organizations issued jointly by the 
National Health Council, Inc., the National Assembly of Voluntary Health 
and Social Welfare Organizations, and the United Way of America.
    c. Under this method, indirect costs consist exclusively of general 
administration and general expenses. In all other respects, the 
organization's indirect cost rates shall be computed in the same manner 
as that described in subparagraph D.2 of this appendix.
    5. Special indirect cost rates. In some instances, a single indirect 
cost rate for all activities of an organization or for each major 
function of the organization may not be appropriate, since it would not 
take into account those different factors which may substantially affect 
the indirect costs applicable to a particular segment of work. For this 
purpose, a particular segment of work may be that performed under a 
single award or it may consist of work under a group of awards performed 
in a common environment. These factors may include the physical location 
of the work, the level of administrative support required, the nature of 
the facilities or other resources employed, the scientific disciplines 
or technical skills involved, the organizational arrangements used, or 
any combination thereof. When a particular segment of work is performed 
in an environment which appears to generate a significantly different 
level of indirect costs, provisions should be made for a separate 
indirect cost pool applicable to such work. The separate indirect cost 
pool should be developed during the course of the regular allocation 
process, and the separate indirect cost rate resulting therefrom should 
be used, provided it is determined that the rate differs significantly 
from that which would have been obtained under subparagraphs D.2, 3, and 
4 of this appendix, and the volume of work to which the rate would apply 
is material.

           E. Negotiation and Approval of Indirect Cost Rates

    1. Definitions. As used in this section, the following terms have 
the meanings set forth below:
    a. Cognizant agency means the Federal agency responsible for 
negotiating and approving indirect cost rates for a non-profit 
organization on behalf of all Federal agencies.
    b. Predetermined rate means an indirect cost rate, applicable to a 
specified current or future period, usually the organization's fiscal 
year. The rate is based on an estimate of the costs to be incurred 
during the period. A predetermined rate is not subject to adjustment.
    c. Fixed rate means an indirect cost rate which has the same 
characteristics as a predetermined rate, except that the difference 
between the estimated costs and the actual costs of the period covered 
by the rate is carried forward as an adjustment to the rate computation 
of a subsequent period.
    d. Final rate means an indirect cost rate applicable to a specified 
past period which is based on the actual costs of the period. A final 
rate is not subject to adjustment.
    e. Provisional rate or billing rate means a temporary indirect cost 
rate applicable to a specified period which is used for funding, interim 
reimbursement, and reporting indirect costs on awards pending the 
establishment of a final rate for the period.
    f. Indirect cost proposal means the documentation prepared by an 
organization to substantiate its claim for the reimbursement of indirect 
costs. This proposal provides the basis for the review and negotiation 
leading to the establishment of an organization's indirect cost rate.
    g. Cost objective means a function, organizational subdivision, 
contract, grant, or other work unit for which cost data are desired and 
for which provision is made to accumulate and measure the cost of 
processes, projects, jobs and capitalized projects.
    2. Negotiation and approval of rates. a. Unless different 
arrangements are agreed to by the agencies concerned, the Federal agency 
with the largest dollar value of awards with an organization will be 
designated as the cognizant agency for the negotiation and approval of 
the indirect cost rates and, where necessary, other rates such as fringe 
benefit and computer charge-out rates. Once an agency is assigned 
cognizance for a particular non-profit organization, the assignment will 
not be changed unless there is a major long-term shift in the dollar 
volume of the Federal awards to the organization. All concerned Federal 
agencies shall be given

[[Page 190]]

the opportunity to participate in the negotiation process but, after a 
rate has been agreed upon, it will be accepted by all Federal agencies. 
When a Federal agency has reason to believe that special operating 
factors affecting its awards necessitate special indirect cost rates in 
accordance with subparagraph D.5 of this appendix, it will, prior to the 
time the rates are negotiated, notify the cognizant agency.
    b. A non-profit organization which has not previously established an 
indirect cost rate with a Federal agency shall submit its initial 
indirect cost proposal immediately after the organization is advised 
that an award will be made and, in no event, later than three months 
after the effective date of the award.
    c. Organizations that have previously established indirect cost 
rates must submit a new indirect cost proposal to the cognizant agency 
within six months after the close of each fiscal year.
    d. A predetermined rate may be negotiated for use on awards where 
there is reasonable assurance, based on past experience and reliable 
projection of the organization's costs, that the rate is not likely to 
exceed a rate based on the organization's actual costs.
    e. Fixed rates may be negotiated where predetermined rates are not 
considered appropriate. A fixed rate, however, shall not be negotiated 
if all or a substantial portion of the organization's awards are 
expected to expire before the carry-forward adjustment can be made; the 
mix of Federal and non-Federal work at the organization is too erratic 
to permit an equitable carry-forward adjustment; or the organization's 
operations fluctuate significantly from year to year.
    f. Provisional and final rates shall be negotiated where neither 
predetermined nor fixed rates are appropriate.
    g. The results of each negotiation shall be formalized in a written 
agreement between the cognizant agency and the non-profit organization. 
The cognizant agency shall distribute copies of the agreement to all 
concerned Federal agencies.
    h. If a dispute arises in a negotiation of an indirect cost rate 
between the cognizant agency and the non-profit organization, the 
dispute shall be resolved in accordance with the appeals procedures of 
the cognizant agency.
    i. To the extent that problems are encountered among the Federal 
agencies in connection with the negotiation and approval process, OMB 
will lend assistance as required to resolve such problems in a timely 
manner.



           Sec. Appendix B to Part 230--Selected Items of Cost

                         Selected Items of Cost

                            Table of Contents

1. Advertising and public relations costs
2. Advisory councils
3. Alcoholic beverages
4. Audit costs and related services
5. Bad debts
6. Bonding costs
7. Communication costs
8. Compensation for personal services
9. Contingency provisions
10. Defense and prosecution of criminal and civil proceedings, claims, 
appeals and patent infringement
11. Depreciation and use allowances
12. Donations and contributions
13. Employee morale, health, and welfare costs
14. Entertainment costs
15. Equipment and other capital expenditures
16. Fines and penalties
17. Fund raising and investment management costs
18. Gains and losses on depreciable assets
19. Goods or services for personal use
20. Housing and personal living expenses
21. Idle facilities and idle capacity
22. Insurance and indemnification
23. Interest
24. Labor relations costs
25. Lobbying
26. Losses on other sponsored agreements or contracts
27. Maintenance and repair costs
28. Materials and supplies costs
29. Meetings and conferences
30. Memberships, subscriptions, and professional activity costs
31. Organization costs
32. Page charges in professional journals
33. Participant support costs
34. Patent costs
35. Plant and homeland security costs
36. Pre-agreement costs
37. Professional services costs
38. Publication and printing costs
39. Rearrangement and alteration costs
40. Reconversion costs
41. Recruiting costs
42. Relocation costs
43. Rental costs of buildings and equipment
44. Royalties and other costs for use of patents and copyrights
45. Selling and marketing
46. Specialized service facilities
47. Taxes
48. Termination costs applicable to sponsored agreements
49. Training costs
50. Transportation costs
51. Travel costs
52. Trustees

[[Page 191]]

             Appendix B to Part 230--Selected Items of Cost

    Paragraphs 1 through 52 of this appendix provide principles to be 
applied in establishing the allowability of certain items of cost. These 
principles apply whether a cost is treated as direct or indirect. 
Failure to mention a particular item of cost is not intended to imply 
that it is unallowable; rather, determination as to allowability in each 
case should be based on the treatment or principles provided for similar 
or related items of cost.
    1. Advertising and public relations costs. a. The term advertising 
costs means the costs of advertising media and corollary administrative 
costs. Advertising media include magazines, newspapers, radio and 
television, direct mail, exhibits, electronic or computer transmittals, 
and the like.
    b. The term public relations includes community relations and means 
those activities dedicated to maintaining the image of the non-profit 
organization or maintaining or promoting understanding and favorable 
relations with the community or public at large or any segment of the 
public.
    c. The only allowable advertising costs are those which are solely 
for:
    (1) The recruitment of personnel required for the performance by the 
non-profit organization of obligations arising under a Federal award 
(See also paragraph 41, Recruiting costs, and paragraph 42, Relocation 
costs, of this appendix);
    (2) The procurement of goods and services for the performance of a 
Federal award;
    (3) The disposal of scrap or surplus materials acquired in the 
performance of a Federal award except when non-profit organizations are 
reimbursed for disposal costs at a predetermined amount; or
    (4) Other specific purposes necessary to meet the requirements of 
the Federal award.
    d. The only allowable public relations costs are:
    (1) Costs specifically required by the Federal award;
    (2) Costs of communicating with the public and press pertaining to 
specific activities or accomplishments which result from performance of 
Federal awards (these costs are considered necessary as part of the 
outreach effort for the Federal award); or
    (3) Costs of conducting general liaison with news media and 
government public relations officers, to the extent that such activities 
are limited to communication and liaison necessary keep the public 
informed on matters of public concern, such as notices of Federal 
contract/grant awards, financial matters, etc.
    e. Costs identified in subparagraphs c and d if incurred for more 
than one Federal award or for both sponsored work and other work of the 
non-profit organization, are allowable to the extent that the principles 
in Appendix A to this part, paragraphs B. (``Direct Costs'') and C. 
(``Indirect Costs'') are observed.
    f. Unallowable advertising and public relations costs include the 
following:
    (1) All advertising and public relations costs other than as 
specified in subparagraphs c, d, and e;
    (2) Costs of meetings, conventions, convocations, or other events 
related to other activities of the non-profit organization, including:
    (a) Costs of displays, demonstrations, and exhibits;
    (b) Costs of meeting rooms, hospitality suites, and other special 
facilities used in conjunction with shows and other special events; and
    (c) Salaries and wages of employees engaged in setting up and 
displaying exhibits, making demonstrations, and providing briefings;
    (3) Costs of promotional items and memorabilia, including models, 
gifts, and souvenirs;
    (4) Costs of advertising and public relations designed solely to 
promote the non-profit organization.
    2. Advisory Councils. Costs incurred by advisory councils or 
committees are allowable as a direct cost where authorized by the 
Federal awarding agency or as an indirect cost where allocable to 
Federal awards.
    3. Alcoholic beverages. Costs of alcoholic beverages are 
unallowable.
    4. Audit costs and related services. a. The costs of audits required 
by, and performed in accordance with, the Single Audit Act, as 
implemented by Circular A-133, ``Audits of States, Local Governments, 
and Non-Profit Organizations'' are allowable. Also see 31 U.S.C. 7505(b) 
and section 230 (``Audit Costs'') of Circular A-133.
    b. Other audit costs are allowable if included in an indirect cost 
rate proposal, or if specifically approved by the awarding agency as a 
direct cost to an award.
    c. The cost of agreed-upon procedures engagements to monitor 
subrecipients who are exempted from A-133 under section 200(d) are 
allowable, subject to the conditions listed in A-133, section 230 
(b)(2).
    5. Bad debts. Bad debts, including losses (whether actual or 
estimated) arising from uncollectable accounts and other claims, related 
collection costs, and related legal costs, are unallowable.
    6. Bonding costs. a. Bonding costs arise when the Federal Government 
requires assurance against financial loss to itself or others by reason 
of the act or default of the non-profit organization. They arise also in 
instances where the non-profit organization requires similar assurance. 
Included are such bonds as bid, performance, payment, advance payment, 
infringement, and fidelity bonds.

[[Page 192]]

    b. Costs of bonding required pursuant to the terms of the award are 
allowable.
    c. Costs of bonding required by the non-profit organization in the 
general conduct of its operations are allowable to the extent that such 
bonding is in accordance with sound business practice and the rates and 
premiums are reasonable under the circumstances.
    7. Communication costs. Costs incurred for telephone services, local 
and long distance telephone calls, telegrams, postage, messenger, 
electronic or computer transmittal services and the like are allowable.
    8. Compensation for personal services. a. Definition. Compensation 
for personal services includes all compensation paid currently or 
accrued by the organization for services of employees rendered during 
the period of the award (except as otherwise provided in subparagraph 
8.h of this appendix). It includes, but is not limited to, salaries, 
wages, director's and executive committee member's fees, incentive 
awards, fringe benefits, pension plan costs, allowances for off-site 
pay, incentive pay, location allowances, hardship pay, and cost of 
living differentials.
    b. Allowability. Except as otherwise specifically provided in this 
paragraph, the costs of such compensation are allowable to the extent 
that:
    (1) Total compensation to individual employees is reasonable for the 
services rendered and conforms to the established policy of the 
organization consistently applied to both Federal and non-Federal 
activities; and
    (2) Charges to awards whether treated as direct or indirect costs 
are determined and supported as required in this paragraph.
    c. Reasonableness. (1) When the organization is predominantly 
engaged in activities other than those sponsored by the Federal 
Government, compensation for employees on federally-sponsored work will 
be considered reasonable to the extent that it is consistent with that 
paid for similar work in the organization's other activities.
    (2) When the organization is predominantly engaged in federally-
sponsored activities and in cases where the kind of employees required 
for the Federal activities are not found in the organization's other 
activities, compensation for employees on federally-sponsored work will 
be considered reasonable to the extent that it is comparable to that 
paid for similar work in the labor markets in which the organization 
competes for the kind of employees involved.
    d. Special considerations in determining allowability. Certain 
conditions require special consideration and possible limitations in 
determining costs under Federal awards where amounts or types of 
compensation appear unreasonable. Among such conditions are the 
following:
    (1) Compensation to members of non-profit organizations, trustees, 
directors, associates, officers, or the immediate families thereof. 
Determination should be made that such compensation is reasonable for 
the actual personal services rendered rather than a distribution of 
earnings in excess of costs.
    (2) Any change in an organization's compensation policy resulting in 
a substantial increase in the organization's level of compensation, 
particularly when it was concurrent with an increase in the ratio of 
Federal awards to other activities of the organization or any change in 
the treatment of allowability of specific types of compensation due to 
changes in Federal policy.
    e. Unallowable costs. Costs which are unallowable under other 
paragraphs of this appendix shall not be allowable under this paragraph 
solely on the basis that they constitute personal compensation.
    f. Overtime, extra-pay shift, and multi-shift premiums. Premiums for 
overtime, extra-pay shifts, and multi-shift work are allowable only with 
the prior approval of the awarding agency except:
    (1) When necessary to cope with emergencies, such as those resulting 
from accidents, natural disasters, breakdowns of equipment, or 
occasional operational bottlenecks of a sporadic nature.
    (2) When employees are performing indirect functions, such as 
administration, maintenance, or accounting.
    (3) In the performance of tests, laboratory procedures, or other 
similar operations which are continuous in nature and cannot reasonably 
be interrupted or otherwise completed.
    (4) When lower overall cost to the Federal Government will result.
    g. Fringe benefits. (1) Fringe benefits in the form of regular 
compensation paid to employees during periods of authorized absences 
from the job, such as vacation leave, sick leave, military leave, and 
the like, are allowable, provided such costs are absorbed by all 
organization activities in proportion to the relative amount of time or 
effort actually devoted to each.
    (2) Fringe benefits in the form of employer contributions or 
expenses for social security, employee insurance, workmen's compensation 
insurance, pension plan costs (see subparagraph 8.h of this appendix), 
and the like, are allowable, provided such benefits are granted in 
accordance with established written organization policies. Such benefits 
whether treated as indirect costs or as direct costs, shall be 
distributed to particular awards and other activities in a manner 
consistent with the pattern of benefits accruing to the individuals or 
group of employees whose salaries and wages are chargeable to such 
awards and other activities.
    (3)(a) Provisions for a reserve under a self-insurance program for 
unemployment compensation or workers' compensation are allowable to the 
extent that the provisions

[[Page 193]]

represent reasonable estimates of the liabilities for such compensation, 
and the types of coverage, extent of coverage, and rates and premiums 
would have been allowable had insurance been purchased to cover the 
risks. However, provisions for self-insured liabilities which do not 
become payable for more than one year after the provision is made shall 
not exceed the present value of the liability.
    (b) Where an organization follows a consistent policy of expensing 
actual payments to, or on behalf of, employees or former employees for 
unemployment compensation or workers' compensation, such payments are 
allowable in the year of payment with the prior approval of the awarding 
agency, provided they are allocated to all activities of the 
organization.
    (4) Costs of insurance on the lives of trustees, officers, or other 
employees holding positions of similar responsibility are allowable only 
to the extent that the insurance represents additional compensation. The 
costs of such insurance when the organization is named as beneficiary 
are unallowable.
    h. Organization-furnished automobiles. That portion of the cost of 
organization-furnished automobiles that relates to personal use by 
employees (including transportation to and from work) is unallowable as 
fringe benefit or indirect costs regardless of whether the cost is 
reported as taxable income to the employees. These costs are allowable 
as direct costs to sponsored award when necessary for the performance of 
the sponsored award and approved by awarding agencies.
    i. Pension plan costs. (1) Costs of the organization's pension plan 
which are incurred in accordance with the established policies of the 
organization are allowable, provided:
    (a) Such policies meet the test of reasonableness;
    (b) The methods of cost allocation are not discriminatory;
    (c) The cost assigned to each fiscal year is determined in 
accordance with generally accepted accounting principles (GAAP), as 
prescribed in Accounting Principles Board Opinion No. 8 issued by the 
American Institute of Certified Public Accountants; and
    (d) The costs assigned to a given fiscal year are funded for all 
plan participants within six months after the end of that year. However, 
increases to normal and past service pension costs caused by a delay in 
funding the actuarial liability beyond 30 days after each quarter of the 
year to which such costs are assignable are unallowable.
    (2) Pension plan termination insurance premiums paid pursuant to the 
Employee Retirement Income Security Act (ERISA) of 1974 (Pub. L. 93-406) 
are allowable. Late payment charges on such premiums are unallowable.
    (3) Excise taxes on accumulated funding deficiencies and other 
penalties imposed under ERISA are unallowable.
    j. Incentive compensation. Incentive compensation to employees based 
on cost reduction, or efficient performance, suggestion awards, safety 
awards, etc., are allowable to the extent that the overall compensation 
is determined to be reasonable and such costs are paid or accrued 
pursuant to an agreement entered into in good faith between the 
organization and the employees before the services were rendered, or 
pursuant to an established plan followed by the organization so 
consistently as to imply, in effect, an agreement to make such payment.
    k. Severance pay. (1) Severance pay, also commonly referred to as 
dismissal wages, is a payment in addition to regular salaries and wages, 
by organizations to workers whose employment is being terminated. Costs 
of severance pay are allowable only to the extent that in each case, it 
is required by:

(a) Law
(b) Employer-employee agreement
(c) Established policy that constitutes, in effect, an implied agreement 
on the organization's part, or
(d) Circumstances of the particular employment.

    (2) Costs of severance payments are divided into two categories as 
follows:
    (a) Actual normal turnover severance payments shall be allocated to 
all activities; or, where the organization provides for a reserve for 
normal severances, such method will be acceptable if the charge to 
current operations is reasonable in light of payments actually made for 
normal severances over a representative past period, and if amounts 
charged are allocated to all activities of the organization.
    (b) Abnormal or mass severance pay is of such a conjectural nature 
that measurement of costs by means of an accrual will not achieve equity 
to both parties. Thus, accruals for this purpose are not allowable. 
However, the Federal Government recognizes its obligation to 
participate, to the extent of its fair share, in any specific payment. 
Thus, allowability will be considered on a case-by-case basis in the 
event or occurrence.
    (c) Costs incurred in certain severance pay packages (commonly known 
as ``a golden parachute'' payment) which are in an amount in excess of 
the normal severance pay paid by the organization to an employee upon 
termination of employment and are paid to the employee contingent upon a 
change in management control over, or ownership of, the organization's 
assets are unallowable.
    (d) Severance payments to foreign nationals employed by the 
organization outside the United States, to the extent that the amount 
exceeds the customary or prevailing practices for the organization in 
the United

[[Page 194]]

States are unallowable, unless they are necessary for the performance of 
Federal programs and approved by awarding agencies.
    (e) Severance payments to foreign nationals employed by the 
organization outside the United States due to the termination of the 
foreign national as a result of the closing of, or curtailment of 
activities by, the organization in that country, are unallowable, unless 
they are necessary for the performance of Federal programs and approved 
by awarding agencies.
    l. Training costs. See paragraph 49 of this appendix.
    m. Support of salaries and wages.
    (1) Charges to awards for salaries and wages, whether treated as 
direct costs or indirect costs, will be based on documented payrolls 
approved by a responsible official(s) of the organization. The 
distribution of salaries and wages to awards must be supported by 
personnel activity reports, as prescribed in subparagraph 8.m.(2) of 
this appendix, except when a substitute system has been approved in 
writing by the cognizant agency. (See subparagraph E.2 of Appendix A to 
this part.)
    (2) Reports reflecting the distribution of activity of each employee 
must be maintained for all staff members (professionals and 
nonprofessionals) whose compensation is charged, in whole or in part, 
directly to awards. In addition, in order to support the allocation of 
indirect costs, such reports must also be maintained for other employees 
whose work involves two or more functions or activities if a 
distribution of their compensation between such functions or activities 
is needed in the determination of the organization's indirect cost 
rate(s) (e.g., an employee engaged part-time in indirect cost activities 
and part-time in a direct function). Reports maintained by non-profit 
organizations to satisfy these requirements must meet the following 
standards:
    (a) The reports must reflect an after-the-fact determination of the 
actual activity of each employee. Budget estimates (i.e., estimates 
determined before the services are performed) do not qualify as support 
for charges to awards.
    (b) Each report must account for the total activity for which 
employees are compensated and which is required in fulfillment of their 
obligations to the organization.
    (c) The reports must be signed by the individual employee, or by a 
responsible supervisory official having first hand knowledge of the 
activities performed by the employee, that the distribution of activity 
represents a reasonable estimate of the actual work performed by the 
employee during the periods covered by the reports.
    (d) The reports must be prepared at least monthly and must coincide 
with one or more pay periods.
    (3) Charges for the salaries and wages of nonprofessional employees, 
in addition to the supporting documentation described in subparagraphs 
(1) and (2), must also be supported by records indicating the total 
number of hours worked each day maintained in conformance with 
Department of Labor regulations implementing the Fair Labor Standards 
Act (FLSA) (29 CFR part 516). For this purpose, the term 
``nonprofessional employee'' shall have the same meaning as ``nonexempt 
employee,'' under FLSA.
    (4) Salaries and wages of employees used in meeting cost sharing or 
matching requirements on awards must be supported in the same manner as 
salaries and wages claimed for reimbursement from awarding agencies.
    9. Contingency provisions. Contributions to a contingency reserve or 
any similar provision made for events the occurrence of which cannot be 
foretold with certainty as to time, intensity, or with an assurance of 
their happening, are unallowable. The term ``contingency reserve'' 
excludes self-insurance reserves (see Appendix B to this part, 
paragraphs 8.g.(3) and 22.a(2)(d)); pension funds (see paragraph 8.i): 
and reserves for normal severance pay (see paragraph 8.k.)
    10. Defense and prosecution of criminal and civil proceedings, 
claims, appeals and patent infringement.
    a. Definitions. (1) Conviction, as used herein, means a judgment or 
a conviction of a criminal offense by any court of competent 
jurisdiction, whether entered upon as a verdict or a plea, including a 
conviction due to a plea of nolo contendere.
    (2) Costs include, but are not limited to, administrative and 
clerical expenses; the cost of legal services, whether performed by in-
house or private counsel; and the costs of the services of accountants, 
consultants, or others retained by the organization to assist it; costs 
of employees, officers and trustees, and any similar costs incurred 
before, during, and after commencement of a judicial or administrative 
proceeding that bears a direct relationship to the proceedings.
    (3) Fraud, as used herein, means acts of fraud corruption or 
attempts to defraud the Federal Government or to corrupt its agents, 
acts that constitute a cause for debarment or suspension (as specified 
in agency regulations), and acts which violate the False Claims Act, 31 
U.S.C., sections 3729-3731, or the Anti-Kickback Act, 41 U.S.C., 
sections 51 and 54.
    (4) Penalty does not include restitution, reimbursement, or 
compensatory damages.
    (5) Proceeding includes an investigation.
    b. (1) Except as otherwise described herein, costs incurred in 
connection with any criminal, civil or administrative proceeding 
(including filing of a false certification) commenced by the Federal 
Government, or a State, local or foreign government, are not

[[Page 195]]

allowable if the proceeding: Relates to a violation of, or failure to 
comply with, a Federal, State, local or foreign statute or regulation by 
the organization (including its agents and employees), and results in 
any of the following dispositions:
    (a) In a criminal proceeding, a conviction.
    (b) In a civil or administrative proceeding involving an allegation 
of fraud or similar misconduct, a determination of organizational 
liability.
    (c) In the case of any civil or administrative proceeding, the 
imposition of a monetary penalty.
    (d) A final decision by an appropriate Federal official to debar or 
suspend the organization, to rescind or void an award, or to terminate 
an award for default by reason of a violation or failure to comply with 
a law or regulation.
    (e) A disposition by consent or compromise, if the action could have 
resulted in any of the dispositions described in subparagraphs 
10.b.(1)(a), (b), (c) or (d) of this appendix.
    (2) If more than one proceeding involves the same alleged 
misconduct, the costs of all such proceedings shall be unallowable if 
any one of them results in one of the dispositions shown in subparagraph 
10.b.(1) of this appendix.
    c. If a proceeding referred to in subparagraph 10.b of this appendix 
is commenced by the Federal Government and is resolved by consent or 
compromise pursuant to an agreement entered into by the organization and 
the Federal Government, then the costs incurred by the organization in 
connection with such proceedings that are otherwise not allowable under 
subparagraph 10.b of this appendix may be allowed to the extent 
specifically provided in such agreement.
    d. If a proceeding referred to in subparagraph 10.b of this appendix 
is commenced by a State, local or foreign government, the authorized 
Federal official may allow the costs incurred by the organization for 
such proceedings, if such authorized official determines that the costs 
were incurred as a result of a specific term or condition of a 
federally-sponsored award, or specific written direction of an 
authorized official of the sponsoring agency.
    e. Costs incurred in connection with proceedings described in 
subparagraph 10.b of this appendix, but which are not made unallowable 
by that subparagraph, may be allowed by the Federal Government, but only 
to the extent that:
    (1) The costs are reasonable in relation to the activities required 
to deal with the proceeding and the underlying cause of action;
    (2) Payment of the costs incurred, as allowable and allocable costs, 
is not prohibited by any other provision(s) of the sponsored award;
    (3) The costs are not otherwise recovered from the Federal 
Government or a third party, either directly as a result of the 
proceeding or otherwise; and,
    (4) The percentage of costs allowed does not exceed the percentage 
determined by an authorized Federal official to be appropriate, 
considering the complexity of the litigation, generally accepted 
principles governing the award of legal fees in civil actions involving 
the United States as a party, and such other factors as may be 
appropriate. Such percentage shall not exceed 80 percent. However, if an 
agreement reached under subparagraph 10.c of this appendix has 
explicitly considered this 80 percent limitation and permitted a higher 
percentage, then the full amount of costs resulting from that agreement 
shall be allowable.
    f. Costs incurred by the organization in connection with the defense 
of suits brought by its employees or ex-employees under section 2 of the 
Major Fraud Act of 1988 (Pub. L. 100-700), including the cost of all 
relief necessary to make such employee whole, where the organization was 
found liable or settled, are unallowable.
    g. Costs of legal, accounting, and consultant services, and related 
costs, incurred in connection with defense against Federal Government 
claims or appeals, antitrust suits, or the prosecution of claims or 
appeals against the Federal Government, are unallowable.
    h. Costs of legal, accounting, and consultant services, and related 
costs, incurred in connection with patent infringement litigation, are 
unallowable unless otherwise provided for in the sponsored awards.
    i. Costs which may be unallowable under this paragraph, including 
directly associated costs, shall be segregated and accounted for by the 
organization separately. During the pendency of any proceeding covered 
by subparagraphs 10.b and f of this appendix, the Federal Government 
shall generally withhold payment of such costs. However, if in the best 
interests of the Federal Government, the Federal Government may provide 
for conditional payment upon provision of adequate security, or other 
adequate assurance, and agreements by the organization to repay all 
unallowable costs, plus interest, if the costs are subsequently 
determined to be unallowable.
    11. Depreciation and use allowances. a. Compensation for the use of 
buildings, other capital improvements, and equipment on hand may be made 
through use allowance or depreciation. However, except as provided in 
paragraph 11.f of this appendix, a combination of the two methods may 
not be used in connection with a single class of fixed assets (e.g., 
buildings, office equipment, computer equipment, etc.).

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    b. The computation of use allowances or depreciation shall be based 
on the acquisition cost of the assets involved. The acquisition cost of 
an asset donated to the non-profit organization by a third party shall 
be its fair market value at the time of the donation.
    c. The computation of use allowances or depreciation will exclude:
    (1) The cost of land;
    (2) Any portion of the cost of buildings and equipment borne by or 
donated by the Federal Government irrespective of where title was 
originally vested or where it presently resides; and
    (3) Any portion of the cost of buildings and equipment contributed 
by or for the non-profit organization in satisfaction of a statutory 
matching requirement.
    d. General criteria where depreciation method is followed:
    (1) The period of useful service (useful life) established in each 
case for usable capital assets must take into consideration such factors 
as type of construction, nature of the equipment used, technological 
developments in the particular program area, and the renewal and 
replacement policies followed for the individual items or classes of 
assets involved. The method of depreciation used to assign the cost of 
an asset (or group of assets) to accounting periods shall reflect the 
pattern of consumption of the asset during its useful life.
    (2) In the absence of clear evidence indicating that the expected 
consumption of the asset will be significantly greater or lesser in the 
early portions of its useful life than in the later portions, the 
straight-line method shall be presumed to be the appropriate method.
    (3) Depreciation methods once used shall not be changed unless 
approved in advance by the cognizant Federal agency. When the 
depreciation method is introduced for application to assets previously 
subject to a use allowance, the combination of use allowances and 
depreciation applicable to such assets must not exceed the total 
acquisition cost of the assets.
    e. When the depreciation method is used for buildings, a building's 
shell may be segregated from each building component (e.g., plumbing 
system, heating, and air conditioning system, etc.) and each item 
depreciated over its estimated useful life; or the entire building 
(i.e., the shell and all components) may be treated as a single asset 
and depreciated over a single useful life.
    f. When the depreciation method is used for a particular class of 
assets, no depreciation may be allowed on any such assets that, under 
subparagraph 11.d of this appendix, would be viewed as fully 
depreciated. However, a reasonable use allowance may be negotiated for 
such assets if warranted after taking into consideration the amount of 
depreciation previously charged to the Federal Government, the estimated 
useful life remaining at time of negotiation, the effect of any 
increased maintenance charges or decreased efficiency due to age, and 
any other factors pertinent to the utilization of the asset for the 
purpose contemplated.
    g. Criteria where the use allowance method is followed:
    (1) The use allowance for buildings and improvement (including land 
improvements, such as paved parking areas, fences, and sidewalks) will 
be computed at an annual rate not exceeding two percent of acquisition 
cost.
    (2) The use allowance for equipment will be computed at an annual 
rate not exceeding six and two-thirds percent of acquisition cost. When 
the use allowance method is used for buildings, the entire building must 
be treated as a single asset; the building's components (e.g., plumbing 
system, heating and air conditioning, etc.) cannot be segregated from 
the building's shell.
    (3) The two percent limitation, however, need not be applied to 
equipment which is merely attached or fastened to the building but not 
permanently fixed to it and which is used as furnishings or decorations 
or for specialized purposes (e.g., dentist chairs and dental treatment 
units, counters, laboratory benches bolted to the floor, dishwashers, 
modular furniture, carpeting, etc.). Such equipment will be considered 
as not being permanently fixed to the building if it can be removed 
without the need for costly or extensive alterations or repairs to the 
building or the equipment. Equipment that meets these criteria will be 
subject to the 6\2/3\ percent equipment use allowance limitation.
    h. Charges for use allowances or depreciation must be supported by 
adequate property records and physical inventories must be taken at 
least once every two years (a statistical sampling basis is acceptable) 
to ensure that assets exist and are usable and needed. When the 
depreciation method is followed, adequate depreciation records 
indicating the amount of depreciation taken each period must also be 
maintained.
    12. Donations and contributions.
    a. Contributions or donations rendered. Contributions or donations, 
including cash, property, and services, made by the organization, 
regardless of the recipient, are unallowable.
    b. Donated services received:
    (1) Donated or volunteer services may be furnished to an 
organization by professional and technical personnel, consultants, and 
other skilled and unskilled labor. The value of these services is not 
reimbursable either as a direct or indirect cost. However, the value of 
donated services may be used to meet cost sharing or matching 
requirements in accordance with the Common Rule.

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    (2) The value of donated services utilized in the performance of a 
direct cost activity shall, when material in amount, be considered in 
the determination of the non-profit organization's indirect costs or 
rate(s) and, accordingly, shall be allocated a proportionate share of 
applicable indirect costs when the following exist:
    (a) The aggregate value of the services is material;
    (b) The services are supported by a significant amount of the 
indirect costs incurred by the non-profit organization; and
    (c) The direct cost activity is not pursued primarily for the 
benefit of the Federal Government.
    (3) In those instances where there is no basis for determining the 
fair market value of the services rendered, the recipient and the 
cognizant agency shall negotiate an appropriate allocation of indirect 
cost to the services.
    (4) Where donated services directly benefit a project supported by 
an award, the indirect costs allocated to the services will be 
considered as a part of the total costs of the project. Such indirect 
costs may be reimbursed under the award or used to meet cost sharing or 
matching requirements.
    (5) The value of the donated services may be used to meet cost 
sharing or matching requirements under conditions described in Section 
215.23 of 2 CFR part 215 (OMB Circular A-110). Where donated services 
are treated as indirect costs, indirect cost rates will separate the 
value of the donations so that reimbursement will not be made.
    c. Donated goods or space. (1) Donated goods; i.e., expendable 
personal property/supplies, and donated use of space may be furnished to 
a non-profit organization. The value of the goods and space is not 
reimbursable either as a direct or indirect cost.
    (2) The value of the donations may be used to meet cost sharing or 
matching share requirements under the conditions described in 2 CFR part 
215 (OMB Circular A-110). Where donations are treated as indirect costs, 
indirect cost rates will separate the value of the donations so that 
reimbursement will not be made.
    13. Employee morale, health, and welfare costs.
    a. The costs of employee information publications, health or first-
aid clinics and/or infirmaries, recreational activities, employee 
counseling services, and any other expenses incurred in accordance with 
the non-profit organization's established practice or custom for the 
improvement of working conditions, employer-employee relations, employee 
morale, and employee performance are allowable.
    b. Such costs will be equitably apportioned to all activities of the 
non-profit organization. Income generated from any of these activities 
will be credited to the cost thereof unless such income has been 
irrevocably set over to employee welfare organizations.
    14. Entertainment costs. Costs of entertainment, including 
amusement, diversion, and social activities and any costs directly 
associated with such costs (such as tickets to shows or sports events, 
meals, lodging, rentals, transportation, and gratuities) are 
unallowable.
    15. Equipment and other capital expenditures.
    a. For purposes of this subparagraph, the following definitions 
apply:
    (1) ``Capital Expenditures'' means expenditures for the acquisition 
cost of capital assets (equipment, buildings, land), or expenditures to 
make improvements to capital assets that materially increase their value 
or useful life. Acquisition cost means the cost of the asset including 
the cost to put it in place. Acquisition cost for equipment, for 
example, means the net invoice price of the equipment, including the 
cost of any modifications, attachments, accessories, or auxiliary 
apparatus necessary to make it usable for the purpose for which it is 
acquired. Ancillary charges, such as taxes, duty, protective in transit 
insurance, freight, and installation may be included in, or excluded 
from the acquisition cost in accordance with the non-profit 
organization's regular accounting practices.
    (2) ``Equipment'' means an article of nonexpendable, tangible 
personal property having a useful life of more than one year and an 
acquisition cost which equals or exceeds the lesser of the 
capitalization level established by the non-profit organization for 
financial statement purposes, or $5000.
    (3) ``Special purpose equipment'' means equipment which is used only 
for research, medical, scientific, or other technical activities. 
Examples of special purpose equipment include microscopes, x-ray 
machines, surgical instruments, and spectrometers.
    (4) ``General purpose equipment'' means equipment, which is not 
limited to research, medical, scientific or other technical activities. 
Examples include office equipment and furnishings, modular offices, 
telephone networks, information technology equipment and systems, air 
conditioning equipment, reproduction and printing equipment, and motor 
vehicles.
    b. The following rules of allowability shall apply to equipment and 
other capital expenditures:
    (1) Capital expenditures for general purpose equipment, buildings, 
and land are unallowable as direct charges, except where approved in 
advance by the awarding agency.
    (2) Capital expenditures for special purpose equipment are allowable 
as direct costs, provided that items with a unit cost of $5000 or more 
have the prior approval of the awarding agency.

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    (3) Capital expenditures for improvements to land, buildings, or 
equipment which materially increase their value or useful life are 
unallowable as a direct cost except with the prior approval of the 
awarding agency.
    (4) When approved as a direct charge pursuant to paragraph 15.b.(1), 
(2), and (3) above, capital expenditures will be charged in the period 
in which the expenditure is incurred, or as otherwise determined 
appropriate by and negotiated with the awarding agency.
    (5) Equipment and other capital expenditures are unallowable as 
indirect costs. However, see paragraph 11., Depreciation and use 
allowance, of this appendix for rules on the allowability of use 
allowances or depreciation on buildings, capital improvements, and 
equipment. Also, see paragraph 43., Rental costs of buildings and 
equipment, of this appendix for rules on the allowability of rental 
costs for land, buildings, and equipment.
    (6) The unamortized portion of any equipment written off as a result 
of a change in capitalization levels may be recovered by continuing to 
claim the otherwise allowable use allowances or depreciation on the 
equipment, or by amortizing the amount to be written off over a period 
of years negotiated with the cognizant agency.
    16. Fines and penalties. Costs of fines and penalties resulting from 
violations of, or failure of the organization to comply with Federal, 
State, and local laws and regulations are unallowable except when 
incurred as a result of compliance with specific provisions of an award 
or instructions in writing from the awarding agency.
    17. Fund raising and investment management costs. a. Costs of 
organized fund raising, including financial campaigns, endowment drives, 
solicitation of gifts and bequests, and similar expenses incurred solely 
to raise capital or obtain contributions are unallowable.
    b. Costs of investment counsel and staff and similar expenses 
incurred solely to enhance income from investments are unallowable.
    c. Fund raising and investment activities shall be allocated an 
appropriate share of indirect costs under the conditions described in 
subparagraph B.3 of Appendix A to this part.
    18. Gains and losses on depreciable assets. a. (1) Gains and losses 
on sale, retirement, or other disposition of depreciable property shall 
be included in the year in which they occur as credits or charges to 
cost grouping(s) in which the depreciation applicable to such property 
was included. The amount of the gain or loss to be included as a credit 
or charge to the appropriate cost grouping(s) shall be the difference 
between the amount realized on the property and the undepreciated basis 
of the property.
    (2) Gains and losses on the disposition of depreciable property 
shall not be recognized as a separate credit or charge under the 
following conditions:
    (a) The gain or loss is processed through a depreciation account and 
is reflected in the depreciation allowable under paragraph 11 of this 
appendix.
    (b) The property is given in exchange as part of the purchase price 
of a similar item and the gain or loss is taken into account in 
determining the depreciation cost basis of the new item.
    (c) A loss results from the failure to maintain permissible 
insurance, except as otherwise provided in paragraph 22 of this 
appendix.
    (d) Compensation for the use of the property was provided through 
use allowances in lieu of depreciation in accordance with paragraph 9 of 
this appendix.
    (e) Gains and losses arising from mass or extraordinary sales, 
retirements, or other dispositions shall be considered on a case-by-case 
basis.
    b. Gains or losses of any nature arising from the sale or exchange 
of property other than the property covered in subparagraph a shall be 
excluded in computing award costs.
    19. Goods or services for personal use. Costs of goods or services 
for personal use of the organization's employees are unallowable 
regardless of whether the cost is reported as taxable income to the 
employees.
    20. Housing and personal living expenses. a. Costs of housing (e.g., 
depreciation, maintenance, utilities, furnishings, rent, etc.), housing 
allowances and personal living expenses for/of the organization's 
officers are unallowable as fringe benefit or indirect costs regardless 
of whether the cost is reported as taxable income to the employees. 
These costs are allowable as direct costs to sponsored award when 
necessary for the performance of the sponsored award and approved by 
awarding agencies.
    b. The term ``officers'' includes current and past officers and 
employees.
    21. Idle facilities and idle capacity. a. As used in this section 
the following terms have the meanings set forth below:
    (1) ``Facilities'' means land and buildings or any portion thereof, 
equipment individually or collectively, or any other tangible capital 
asset, wherever located, and whether owned or leased by the non-profit 
organization.
    (2) ``Idle facilities'' means completely unused facilities that are 
excess to the non-profit organization's current needs.
    (3) ``Idle capacity'' means the unused capacity of partially used 
facilities. It is the difference between: That which a facility could 
achieve under 100 percent operating time on a one-shift basis less 
operating interruptions resulting from time lost for repairs, setups, 
unsatisfactory materials, and other normal delays; and the extent to 
which the facility was actually used to meet demands during the 
accounting period. A multi-shift basis

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should be used if it can be shown that this amount of usage would 
normally be expected for the type of facility involved.
    (4) ``Cost of idle facilities or idle capacity'' means costs such as 
maintenance, repair, housing, rent, and other related costs, e.g., 
insurance, interest, property taxes and depreciation or use allowances.
    b. The costs of idle facilities are unallowable except to the extent 
that:
    (1) They are necessary to meet fluctuations in workload; or
    (2) Although not necessary to meet fluctuations in workload, they 
were necessary when acquired and are now idle because of changes in 
program requirements, efforts to achieve more economical operations, 
reorganization, termination, or other causes which could not have been 
reasonably foreseen. Under the exception stated in this subparagraph, 
costs of idle facilities are allowable for a reasonable period of time, 
ordinarily not to exceed one year, depending on the initiative taken to 
use, lease, or dispose of such facilities.
    c. The costs of idle capacity are normal costs of doing business and 
are a factor in the normal fluctuations of usage or indirect cost rates 
from period to period. Such costs are allowable, provided that the 
capacity is reasonably anticipated to be necessary or was originally 
reasonable and is not subject to reduction or elimination by use on 
other Federal awards, subletting, renting, or sale, in accordance with 
sound business, economic, or security practices. Widespread idle 
capacity throughout an entire facility or among a group of assets having 
substantially the same function may be considered idle facilities.
    22. Insurance and indemnification. a. Insurance includes insurance 
which the organization is required to carry, or which is approved, under 
the terms of the award and any other insurance which the organization 
maintains in connection with the general conduct of its operations. This 
paragraph does not apply to insurance which represents fringe benefits 
for employees (see subparagraphs 8.g and 8.i(2) of this appendix).
    (1) Costs of insurance required or approved, and maintained, 
pursuant to the award are allowable.
    (2) Costs of other insurance maintained by the organization in 
connection with the general conduct of its operations are allowable 
subject to the following limitations:
    (a) Types and extent of coverage shall be in accordance with sound 
business practice and the rates and premiums shall be reasonable under 
the circumstances.
    (b) Costs allowed for business interruption or other similar 
insurance shall be limited to exclude coverage of management fees.
    (c) Costs of insurance or of any provisions for a reserve covering 
the risk of loss or damage to Federal property are allowable only to the 
extent that the organization is liable for such loss or damage.
    (d) Provisions for a reserve under a self-insurance program are 
allowable to the extent that types of coverage, extent of coverage, 
rates, and premiums would have been allowed had insurance been purchased 
to cover the risks. However, provision for known or reasonably estimated 
self-insured liabilities, which do not become payable for more than one 
year after the provision is made, shall not exceed the present value of 
the liability.
    (e) Costs of insurance on the lives of trustees, officers, or other 
employees holding positions of similar responsibilities are allowable 
only to the extent that the insurance represents additional compensation 
(see subparagraph 8.g(4) of this appendix). The cost of such insurance 
when the organization is identified as the beneficiary is unallowable.
    (f) Insurance against defects. Costs of insurance with respect to 
any costs incurred to correct defects in the organization's materials or 
workmanship are unallowable.
    (g) Medical liability (malpractice) insurance. Medical liability 
insurance is an allowable cost of Federal research programs only to the 
extent that the Federal research programs involve human subjects or 
training of participants in research techniques. Medical liability 
insurance costs shall be treated as a direct cost and shall be assigned 
to individual projects based on the manner in which the insurer 
allocates the risk to the population covered by the insurance.
    (3) Actual losses which could have been covered by permissible 
insurance (through the purchase of insurance or a self-insurance 
program) are unallowable unless expressly provided for in the award, 
except:
    (a) Costs incurred because of losses not covered under nominal 
deductible insurance coverage provided in keeping with sound business 
practice are allowable.
    (b) Minor losses not covered by insurance, such as spoilage, 
breakage, and disappearance of supplies, which occur in the ordinary 
course of operations, are allowable.
    b. Indemnification includes securing the organization against 
liabilities to third persons and any other loss or damage, not 
compensated by insurance or otherwise. The Federal Government is 
obligated to indemnify the organization only to the extent expressly 
provided in the award.
    23. Interest. a. Costs incurred for interest on borrowed capital, 
temporary use of endowment funds, or the use of the non-profit 
organization's own funds, however represented, are unallowable. However, 
interest on debt incurred after September 29, 1995 to acquire or replace 
capital assets (including renovations, alterations, equipment, land, and 
capital assets acquired through capital leases), acquired after 
September 29, 1995 and used in support of Federal awards is allowable, 
provided that:

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    (1) For facilities acquisitions (excluding renovations and 
alterations) costing over $10 million where the Federal Government's 
reimbursement is expected to equal or exceed 40 percent of an asset's 
cost, the non-profit organization prepares, prior to the acquisition or 
replacement of the capital asset(s), a justification that demonstrates 
the need for the facility in the conduct of federally-sponsored 
activities. Upon request, the needs justification must be provided to 
the Federal agency with cost cognizance authority as a prerequisite to 
the continued allowability of interest on debt and depreciation related 
to the facility. The needs justification for the acquisition of a 
facility should include, at a minimum, the following:
    (a) A statement of purpose and justification for facility 
acquisition or replacement.
    (b) A statement as to why current facilities are not adequate.
    (c) A statement of planned future use of the facility.
    (d) A description of the financing agreement to be arranged for the 
facility.
    (e) A summary of the building contract with estimated cost 
information and statement of source and use of funds.
    (f) A schedule of planned occupancy dates.
    (2) For facilities costing over $500,000, the non-profit 
organization prepares, prior to the acquisition or replacement of the 
facility, a lease/purchase analysis in accordance with the provisions of 
Sec. Sec. 215.30 through 215.37 of 2 CFR 215 (OMB Circular A-110), 
which shows that a financed purchase or capital lease is less costly to 
the organization than other leasing alternatives, on a net present value 
basis. Discount rates used should be equal to the non-profit 
organization's anticipated interest rates and should be no higher than 
the fair market rate available to the non-profit organization from an 
unrelated (``arm's length'') third-party. The lease/purchase analysis 
shall include a comparison of the net present value of the projected 
total cost comparisons of both alternatives over the period the asset is 
expected to be used by the non-profit organization. The cost comparisons 
associated with purchasing the facility shall include the estimated 
purchase price, anticipated operating and maintenance costs (including 
property taxes, if applicable) not included in the debt financing, less 
any estimated asset salvage value at the end of the period defined 
above. The cost comparison for a capital lease shall include the 
estimated total lease payments, any estimated bargain purchase option, 
operating and maintenance costs, and taxes not included in the capital 
leasing arrangement, less any estimated credits due under the lease at 
the end of the period defined above. Projected operating lease costs 
shall be based on the anticipated cost of leasing comparable facilities 
at fair market rates under rental agreements that would be renewed or 
reestablished over the period defined above, and any expected 
maintenance costs and allowable property taxes to be borne by the non-
profit organization directly or as part of the lease arrangement.
    (3) The actual interest cost claimed is predicated upon interest 
rates that are no higher than the fair market rate available to the non-
profit organization from an unrelated (``arm's length'') third party.
    (4) Investment earnings, including interest income, on bond or loan 
principal, pending payment of the construction or acquisition costs, are 
used to offset allowable interest cost. Arbitrage earnings reportable to 
the Internal Revenue Service are not required to be offset against 
allowable interest costs.
    (5) Reimbursements are limited to the least costly alternative based 
on the total cost analysis required under subparagraph 23.b. of this 
appendix. For example, if an operating lease is determined to be less 
costly than purchasing through debt financing, then reimbursement is 
limited to the amount determined if leasing had been used. In all cases 
where a lease/purchase analysis is performed, Federal reimbursement 
shall be based upon the least expensive alternative.
    (6) Non-profit organizations are also subject to the following 
conditions:
    (a) Interest on debt incurred to finance or refinance assets 
acquired before or reacquired after September 29, 1995, is not 
allowable.
    (b) Interest attributable to fully depreciated assets is 
unallowable.
    (c) For debt arrangements over $1 million, unless the non-profit 
organization makes an initial equity contribution to the asset purchase 
of 25 percent or more, non-profit organizations shall reduce claims for 
interest expense by an amount equal to imputed interest earnings on 
excess cash flow, which is to be calculated as follows. Annually, non-
profit organizations shall prepare a cumulative (from the inception of 
the project) report of monthly cash flows that includes inflows and 
outflows, regardless of the funding source. Inflows consist of 
depreciation expense, amortization of capitalized construction interest, 
and annual interest expense. For cash flow calculations, the annual 
inflow figures shall be divided by the number of months in the year 
(usually 12) that the building is in service for monthly amounts. 
Outflows consist of initial equity contributions, debt principal 
payments (less the pro rata share attributable to the unallowable costs 
of land) and interest payments. Where cumulative inflows exceed 
cumulative outflows, interest shall be calculated on the excess inflows 
for that period and be treated as a reduction to allowable interest 
expense. The rate of interest to be used to compute earnings on excess 
cash flows shall be the three

[[Page 201]]

month Treasury Bill closing rate as of the last business day of that 
month.
    (d) Substantial relocation of federally-sponsored activities from a 
facility financed by indebtedness, the cost of which was funded in whole 
or part through Federal reimbursements, to another facility prior to the 
expiration of a period of 20 years requires notice to the Federal 
cognizant agency. The extent of the relocation, the amount of the 
Federal participation in the financing, and the depreciation and 
interest charged to date may require negotiation and/or downward 
adjustments of replacement space charged to Federal programs in the 
future.
    (e) The allowable costs to acquire facilities and equipment are 
limited to a fair market value available to the non-profit organization 
from an unrelated (``arm's length'') third party.
    b. For non-profit organizations subject to ``full coverage'' under 
the Cost Accounting Standards (CAS) as defined at 48 CFR 9903.201, the 
interest allowability provisions of subparagraph a do not apply. 
Instead, these organizations' sponsored agreements are subject to CAS 
414 (48 CFR 9903.414), cost of money as an element of the cost of 
facilities capital, and CAS 417 (48 CFR 9903.417), cost of money as an 
element of the cost of capital assets under construction.
    c. The following definitions are to be used for purposes of this 
paragraph:
    (1) Re-acquired assets means assets held by the non-profit 
organization prior to September 29, 1995 that have again come to be held 
by the organization, whether through repurchase or refinancing. It does 
not include assets acquired to replace older assets.
    (2) Initial equity contribution means the amount or value of 
contributions made by non-profit organizations for the acquisition of 
the asset or prior to occupancy of facilities.
    (3) Asset costs means the capitalizable costs of an asset, including 
construction costs, acquisition costs, and other such costs capitalized 
in accordance with GAAP.
    24. Labor relations costs. Costs incurred in maintaining 
satisfactory relations between the organization and its employees, 
including costs of labor management committees, employee publications, 
and other related activities are allowable.
    25. Lobbying. a. Notwithstanding other provisions of this appendix, 
costs associated with the following activities are unallowable:
    (1) Attempts to influence the outcomes of any Federal, State, or 
local election, referendum, initiative, or similar procedure, through in 
kind or cash contributions, endorsements, publicity, or similar 
activity;
    (2) Establishing, administering, contributing to, or paying the 
expenses of a political party, campaign, political action committee, or 
other organization established for the purpose of influencing the 
outcomes of elections;
    (3) Any attempt to influence: The introduction of Federal or State 
legislation; or the enactment or modification of any pending Federal or 
State legislation through communication with any member or employee of 
the Congress or State legislature (including efforts to influence State 
or local officials to engage in similar lobbying activity), or with any 
Government official or employee in connection with a decision to sign or 
veto enrolled legislation;
    (4) Any attempt to influence: The introduction of Federal or State 
legislation; or the enactment or modification of any pending Federal or 
State legislation by preparing, distributing or using publicity or 
propaganda, or by urging members of the general public or any segment 
thereof to contribute to or participate in any mass demonstration, 
march, rally, fundraising drive, lobbying campaign or letter writing or 
telephone campaign; or
    (5) Legislative liaison activities, including attendance at 
legislative sessions or committee hearings, gathering information 
regarding legislation, and analyzing the effect of legislation, when 
such activities are carried on in support of or in knowing preparation 
for an effort to engage in unallowable lobbying.
    b. The following activities are excepted from the coverage of 
subparagraph 25.a of this appendix:
    (1) Providing a technical and factual presentation of information on 
a topic directly related to the performance of a grant, contract or 
other agreement through hearing testimony, statements or letters to the 
Congress or a State legislature, or subdivision, member, or cognizant 
staff member thereof, in response to a documented request (including a 
Congressional Record notice requesting testimony or statements for the 
record at a regularly scheduled hearing) made by the recipient member, 
legislative body or subdivision, or a cognizant staff member thereof; 
provided such information is readily obtainable and can be readily put 
in deliverable form; and further provided that costs under this section 
for travel, lodging or meals are unallowable unless incurred to offer 
testimony at a regularly scheduled Congressional hearing pursuant to a 
written request for such presentation made by the Chairman or Ranking 
Minority Member of the Committee or Subcommittee conducting such 
hearing.
    (2) Any lobbying made unallowable by subparagraph 25.a.(3) of this 
appendix to influence State legislation in order to directly reduce the 
cost, or to avoid material impairment of the organization's authority to 
perform the grant, contract, or other agreement.

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    (3) Any activity specifically authorized by statute to be undertaken 
with funds from the grant, contract, or other agreement.
    c. (1) When an organization seeks reimbursement for indirect costs, 
total lobbying costs shall be separately identified in the indirect cost 
rate proposal, and thereafter treated as other unallowable activity 
costs in accordance with the procedures of subparagraph B.3 of Appendix 
A to this part.
    (2) Organizations shall submit, as part of the annual indirect cost 
rate proposal, a certification that the requirements and standards of 
this paragraph have been complied with.
    (3) Organizations shall maintain adequate records to demonstrate 
that the determination of costs as being allowable or unallowable 
pursuant to paragraph 25 complies with the requirements of this 
Appendix.
    (4) Time logs, calendars, or similar records shall not be required 
to be created for purposes of complying with this paragraph during any 
particular calendar month when: the employee engages in lobbying (as 
defined in subparagraphs 25.a. and b. of this appendix) 25 percent or 
less of the employee's compensated hours of employment during that 
calendar month, and within the preceding five-year period, the 
organization has not materially misstated allowable or unallowable costs 
of any nature, including legislative lobbying costs. When the conditions 
described in this subparagraph are met, organizations are not required 
to establish records to support the allowability of claimed costs in 
addition to records already required or maintained. Also, when the 
conditions described in this subparagraph are met, the absence of time 
logs, calendars, or similar records will not serve as a basis for 
disallowing costs by contesting estimates of lobbying time spent by 
employees during a calendar month.
    (5) Agencies shall establish procedures for resolving in advance, in 
consultation with OMB, any significant questions or disagreements 
concerning the interpretation or application of paragraph 25. Any such 
advance resolution shall be binding in any subsequent settlements, 
audits or investigations with respect to that grant or contract for 
purposes of interpretation of this Appendix; provided, however, that 
this shall not be construed to prevent a contractor or grantee from 
contesting the lawfulness of such a determination.
    d. Executive lobbying costs. Costs incurred in attempting to 
improperly influence either directly or indirectly, an employee or 
officer of the Executive Branch of the Federal Government to give 
consideration or to act regarding a sponsored agreement or a regulatory 
matter are unallowable. Improper influence means any influence that 
induces or tends to induce a Federal employee or officer to give 
consideration or to act regarding a federally-sponsored agreement or 
regulatory matter on any basis other than the merits of the matter.
    26. Losses on other sponsored agreements or contracts. Any excess of 
costs over income on any award is unallowable as a cost of any other 
award. This includes, but is not limited to, the organization's 
contributed portion by reason of cost sharing agreements or any under-
recoveries through negotiation of lump sums for, or ceilings on, 
indirect costs.
    27. Maintenance and repair costs. Costs incurred for necessary 
maintenance, repair, or upkeep of buildings and equipment (including 
Federal property unless otherwise provided for) which neither add to the 
permanent value of the property nor appreciably prolong its intended 
life, but keep it in an efficient operating condition, are allowable. 
Costs incurred for improvements which add to the permanent value of the 
buildings and equipment or appreciably prolong their intended life shall 
be treated as capital expenditures (see paragraph 15 of this appendix).
    28. Materials and supplies costs. a. Costs incurred for materials, 
supplies, and fabricated parts necessary to carry out a Federal award 
are allowable.
    b. Purchased materials and supplies shall be charged at their actual 
prices, net of applicable credits. Withdrawals from general stores or 
stockrooms should be charged at their actual net cost under any 
recognized method of pricing inventory withdrawals, consistently 
applied. Incoming transportation charges are a proper part of materials 
and supplies costs.
    c. Only materials and supplies actually used for the performance of 
a Federal award may be charged as direct costs.
    d. Where federally-donated or furnished materials are used in 
performing the Federal award, such materials will be used without 
charge.
    29. Meetings and conferences. Costs of meetings and conferences, the 
primary purpose of which is the dissemination of technical information, 
are allowable. This includes costs of meals, transportation, rental of 
facilities, speakers' fees, and other items incidental to such meetings 
or conferences. But see paragraphs 14., Entertainment costs, and 33., 
Participant support costs of this appendix.
    30. Memberships, subscriptions, and professional activity costs. a. 
Costs of the non-profit organization's membership in business, 
technical, and professional organizations are allowable.
    b. Costs of the non-profit organization's subscriptions to business, 
professional, and technical periodicals are allowable.
    c. Costs of membership in any civic or community organization are 
allowable with prior approval by Federal cognizant agency.

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    d. Costs of membership in any country club or social or dining club 
or organization are unallowable.
    31. Organization costs. Expenditures, such as incorporation fees, 
brokers' fees, fees to promoters, organizers or management consultants, 
attorneys, accountants, or investment counselors, whether or not 
employees of the organization, in connection with establishment or 
reorganization of an organization, are unallowable except with prior 
approval of the awarding agency.
    32. Page charges in professional journals. Page charges for 
professional journal publications are allowable as a necessary part of 
research costs, where:
    a. The research papers report work supported by the Federal 
Government; and
    b. The charges are levied impartially on all research papers 
published by the journal, whether or not by federally-sponsored authors.
    33. Participant support costs. Participant support costs are direct 
costs for items such as stipends or subsistence allowances, travel 
allowances, and registration fees paid to or on behalf of participants 
or trainees (but not employees) in connection with meetings, 
conferences, symposia, or training projects. These costs are allowable 
with the prior approval of the awarding agency.
    34. Patent costs. a. The following costs relating to patent and 
copyright matters are allowable: cost of preparing disclosures, reports, 
and other documents required by the Federal award and of searching the 
art to the extent necessary to make such disclosures; cost of preparing 
documents and any other patent costs in connection with the filing and 
prosecution of a United States patent application where title or 
royalty-free license is required by the Federal Government to be 
conveyed to the Federal Government; and general counseling services 
relating to patent and copyright matters, such as advice on patent and 
copyright laws, regulations, clauses, and employee agreements (but see 
paragraphs 37., Professional services costs, and 44., Royalties and 
other costs for use of patents and copyrights, of this appendix).
    b. The following costs related to patent and copyright matter are 
unallowable:
    (1) Cost of preparing disclosures, reports, and other documents and 
of searching the art to the extent necessary to make disclosures not 
required by the award.
    (2) Costs in connection with filing and prosecuting any foreign 
patent application, or any United States patent application, where the 
Federal award does not require conveying title or a royalty-free license 
to the Federal Government (but see paragraph 45., Royalties and other 
costs for use of patents and copyrights, of this appendix).
    35. Plant and homeland security costs. Necessary and reasonable 
expenses incurred for routine and homeland security to protect 
facilities, personnel, and work products are allowable. Such costs 
include, but are not limited to, wages and uniforms of personnel engaged 
in security activities; equipment; barriers; contractual security 
services; consultants; etc. Capital expenditures for homeland and plant 
security purposes are subject to paragraph 15., Equipment and other 
capital expenditures, of this appendix.
    36. Pre-agreement costs. Pre-award costs are those incurred prior to 
the effective date of the award directly pursuant to the negotiation and 
in anticipation of the award where such costs are necessary to comply 
with the proposed delivery schedule or period of performance. Such costs 
are allowable only to the extent that they would have been allowable if 
incurred after the date of the award and only with the written approval 
of the awarding agency.
    37. Professional services costs. a. Costs of professional and 
consultant services rendered by persons who are members of a particular 
profession or possess a special skill, and who are not officers or 
employees of the non-profit organization, are allowable, subject to 
subparagraphs b and c when reasonable in relation to the services 
rendered and when not contingent upon recovery of the costs from the 
Federal Government. In addition, legal and related services are limited 
under paragraph 10 of this appendix.
    b. In determining the allowability of costs in a particular case, no 
single factor or any special combination of factors is necessarily 
determinative. However, the following factors are relevant:
    (1) The nature and scope of the service rendered in relation to the 
service required.
    (2) The necessity of contracting for the service, considering the 
non-profit organization's capability in the particular area.
    (3) The past pattern of such costs, particularly in the years prior 
to Federal awards.
    (4) The impact of Federal awards on the non-profit organization's 
business (i.e., what new problems have arisen).
    (5) Whether the proportion of Federal work to the non-profit 
organization's total business is such as to influence the non-profit 
organization in favor of incurring the cost, particularly where the 
services rendered are not of a continuing nature and have little 
relationship to work under Federal grants and contracts.
    (6) Whether the service can be performed more economically by direct 
employment rather than contracting.
    (7) The qualifications of the individual or concern rendering the 
service and the customary fees charged, especially on non-Federal 
awards.
    (8) Adequacy of the contractual agreement for the service (e.g., 
description of the service, estimate of time required, rate of 
compensation, and termination provisions).

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    c. In addition to the factors in subparagraph 37.b of this appendix, 
retainer fees to be allowable must be supported by evidence of bona fide 
services available or rendered
    38. Publication and printing costs. a. Publication costs include the 
costs of printing (including the processes of composition, plate-making, 
press work, binding, and the end products produced by such processes), 
distribution, promotion, mailing, and general handling. Publication 
costs also include page charges in professional publications.
    b. If these costs are not identifiable with a particular cost 
objective, they should be allocated as indirect costs to all benefiting 
activities of the non-profit organization.
    c. Page charges for professional journal publications are allowable 
as a necessary part of research costs where:
    (1) The research papers report work supported by the Federal 
Government: and
    (2) The charges are levied impartially on all research papers 
published by the journal, whether or not by federally-sponsored authors.
    39. Rearrangement and alteration costs. Costs incurred for ordinary 
or normal rearrangement and alteration of facilities are allowable. 
Special arrangement and alteration costs incurred specifically for the 
project are allowable with the prior approval of the awarding agency.
    40. Reconversion costs. Costs incurred in the restoration or 
rehabilitation of the non-profit organization's facilities to 
approximately the same condition existing immediately prior to 
commencement of Federal awards, less costs related to normal wear and 
tear, are allowable.
    41. Recruiting costs. a. Subject to subparagraphs 41.b, c, and d of 
this appendix, and provided that the size of the staff recruited and 
maintained is in keeping with workload requirements, costs of ``help 
wanted'' advertising, operating costs of an employment office necessary 
to secure and maintain an adequate staff, costs of operating an aptitude 
and educational testing program, travel costs of employees while engaged 
in recruiting personnel, travel costs of applicants for interviews for 
prospective employment, and relocation costs incurred incident to 
recruitment of new employees, are allowable to the extent that such 
costs are incurred pursuant to a well-managed recruitment program. Where 
the organization uses employment agencies, costs that are not in excess 
of standard commercial rates for such services are allowable.
    b. In publications, costs of help wanted advertising that includes 
color, includes advertising material for other than recruitment 
purposes, or is excessive in size (taking into consideration recruitment 
purposes for which intended and normal organizational practices in this 
respect), are unallowable.
    c. Costs of help wanted advertising, special emoluments, fringe 
benefits, and salary allowances incurred to attract professional 
personnel from other organizations that do not meet the test of 
reasonableness or do not conform with the established practices of the 
organization, are unallowable.
    d. Where relocation costs incurred incident to recruitment of a new 
employee have been allowed either as an allocable direct or indirect 
cost, and the newly hired employee resigns for reasons within his 
control within twelve months after being hired, the organization will be 
required to refund or credit such relocation costs to the Federal 
Government.
    42. Relocation costs. a. Relocation costs are costs incident to the 
permanent change of duty assignment (for an indefinite period or for a 
stated period of not less than 12 months) of an existing employee or 
upon recruitment of a new employee. Relocation costs are allowable, 
subject to the limitation described in subparagraphs 42.b, c, and d of 
this appendix, provided that:
    (1) The move is for the benefit of the employer.
    (2) Reimbursement to the employee is in accordance with an 
established written policy consistently followed by the employer.
    (3) The reimbursement does not exceed the employee's actual (or 
reasonably estimated) expenses.
    b. Allowable relocation costs for current employees are limited to 
the following:
    (1) The costs of transportation of the employee, members of his 
immediate family and his household, and personal effects to the new 
location.
    (2) The costs of finding a new home, such as advance trips by 
employees and spouses to locate living quarters and temporary lodging 
during the transition period, up to maximum period of 30 days, including 
advance trip time.
    (3) Closing costs, such as brokerage, legal, and appraisal fees, 
incident to the disposition of the employee's former home. These costs, 
together with those described in subparagraph 42.b.(4) of this appendix, 
are limited to 8 percent of the sales price of the employee's former 
home.
    (4) The continuing costs of ownership of the vacant former home 
after the settlement or lease date of the employee's new permanent home, 
such as maintenance of buildings and grounds (exclusive of fixing up 
expenses), utilities, taxes, and property insurance.
    (5) Other necessary and reasonable expenses normally incident to 
relocation, such as the costs of canceling an unexpired lease, 
disconnecting and reinstalling household appliances, and purchasing 
insurance against loss of or damages to personal property. The cost of 
canceling an unexpired lease is limited to three times the monthly 
rental.

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    c. Allowable relocation costs for new employees are limited to those 
described in subparagraph 42.b(1) and (2) of this appendix. When 
relocation costs incurred incident to the recruitment of new employees 
have been allowed either as a direct or indirect cost and the employee 
resigns for reasons within his control within 12 months after hire, the 
organization shall refund or credit the Federal Government for its share 
of the cost. However, the costs of travel to an overseas location shall 
be considered travel costs in accordance with paragraph 50 and not 
relocation costs for the purpose of this paragraph if dependents are not 
permitted at the location for any reason and the costs do not include 
costs of transporting household goods.
    d. The following costs related to relocation are unallowable:
    (1) Fees and other costs associated with acquiring a new home.
    (2) A loss on the sale of a former home.
    (3) Continuing mortgage principal and interest payments on a home 
being sold.
    (4) Income taxes paid by an employee related to reimbursed 
relocation costs.
    43. Rental costs of buildings and equipment. a. Subject to the 
limitations described in subparagraphs 43.b. through d. of this 
appendix, rental costs are allowable to the extent that the rates are 
reasonable in light of such factors as: Rental costs of comparable 
property, if any; market conditions in the area; alternatives available; 
and, the type, life expectancy, condition, and value of the property 
leased. Rental arrangements should be reviewed periodically to determine 
if circumstances have changed and other options are available.
    b. Rental costs under ``sale and lease back'' arrangements are 
allowable only up to the amount that would be allowed had the non-profit 
organization continued to own the property. This amount would include 
expenses such as depreciation or use allowance, maintenance, taxes, and 
insurance.
    c. Rental costs under ``less-than-arms-length'' leases are allowable 
only up to the amount (as explained in subparagraph 43.b. of this 
appendix) that would be allowed had title to the property vested in the 
non-profit organization. For this purpose, a less-than-arms-length lease 
is one under which one party to the lease agreement is able to control 
or substantially influence the actions of the other. Such leases 
include, but are not limited to those between divisions of a non-profit 
organization; non-profit organizations under common control through 
common officers, directors, or members; and a non-profit organization 
and a director, trustee, officer, or key employee of the non-profit 
organization or his immediate family, either directly or through 
corporations, trusts, or similar arrangements in which they hold a 
controlling interest. For example, a non-profit organization may 
establish a separate corporation for the sole purpose of owning property 
and leasing it back to the non-profit organization.
    d. Rental costs under leases which are required to be treated as 
capital leases under GAAP are allowable only up to the amount (as 
explained in subparagraph b) that would be allowed had the non-profit 
organization purchased the property on the date the lease agreement was 
executed. The provisions of Financial Accounting Standards Board 
Statement 13, Accounting for Leases, shall be used to determine whether 
a lease is a capital lease. Interest costs related to capital leases are 
allowable to the extent they meet the criteria in paragraph 23 of this 
appendix. Unallowable costs include amounts paid for profit, management 
fees, and taxes that would not have been incurred had the non-profit 
organization purchased the facility.
    44. Royalties and other costs for use of patents and copyrights. a. 
Royalties on a patent or copyright or amortization of the cost of 
acquiring by purchase a copyright, patent, or rights thereto, necessary 
for the proper performance of the award are allowable unless:
    (1) The Federal Government has a license or the right to free use of 
the patent or copyright.
    (2) The patent or copyright has been adjudicated to be invalid, or 
has been administratively determined to be invalid.
    (3) The patent or copyright is considered to be unenforceable.
    (4) The patent or copyright is expired.
    b. Special care should be exercised in determining reasonableness 
where the royalties may have arrived at as a result of less-than-arm's-
length bargaining, e.g.:
    (1) Royalties paid to persons, including corporations, affiliated 
with the non-profit organization.
    (2) Royalties paid to unaffiliated parties, including corporations, 
under an agreement entered into in contemplation that a Federal award 
would be made.
    (3) Royalties paid under an agreement entered into after an award is 
made to a non-profit organization.
    c. In any case involving a patent or copyright formerly owned by the 
non-profit organization, the amount of royalty allowed should not exceed 
the cost which would have been allowed had the non-profit organization 
retained title thereto.
    45. Selling and marketing. Costs of selling and marketing any 
products or services of the non-profit organization are unallowable 
(unless allowed under paragraph 1. of this appendix as allowable public 
relations cost. However, these costs are allowable as direct costs, with 
prior approval by awarding agencies, when they are necessary for the 
performance of Federal programs.
    46. Specialized service facilities. a. The costs of services 
provided by highly complex

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or specialized facilities operated by the non-profit organization, such 
as computers, wind tunnels, and reactors are allowable, provided the 
charges for the services meet the conditions of either paragraph 46 b. 
or c. of this appendix and, in addition, take into account any items of 
income or Federal financing that qualify as applicable credits under 
subparagraph A.5. of Appendix A to this part.
    b. The costs of such services, when material, must be charged 
directly to applicable awards based on actual usage of the services on 
the basis of a schedule of rates or established methodology that does 
not discriminate against federally-supported activities of the non-
profit organization, including usage by the non-profit organization for 
internal purposes, and is designed to recover only the aggregate costs 
of the services. The costs of each service shall consist normally of 
both its direct costs and its allocable share of all indirect costs. 
Rates shall be adjusted at least biennially, and shall take into 
consideration over/under applied costs of the previous period(s).
    c. Where the costs incurred for a service are not material, they may 
be allocated as indirect costs.
    d. Under some extraordinary circumstances, where it is in the best 
interest of the Federal Government and the institution to establish 
alternative costing arrangements, such arrangements may be worked out 
with the cognizant Federal agency.
    47. Taxes. a. In general, taxes which the organization is required 
to pay and which are paid or accrued in accordance with GAAP, and 
payments made to local governments in lieu of taxes which are 
commensurate with the local government services received are allowable, 
except for taxes from which exemptions are available to the organization 
directly or which are available to the organization based on an 
exemption afforded the Federal Government and in the latter case when 
the awarding agency makes available the necessary exemption 
certificates, special assessments on land which represent capital 
improvements, and Federal income taxes.
    b. Any refund of taxes, and any payment to the organization of 
interest thereon, which were allowed as award costs, will be credited 
either as a cost reduction or cash refund, as appropriate, to the 
Federal Government.
    48. Termination costs applicable to sponsored agreements. 
Termination of awards generally gives rise to the incurrence of costs, 
or the need for special treatment of costs, which would not have arisen 
had the Federal award not been terminated. Cost principles covering 
these items are set forth below. They are to be used in conjunction with 
the other provisions of this appendix in termination situations.
    a. The cost of items reasonably usable on the non-profit 
organization's other work shall not be allowable unless the non-profit 
organization submits evidence that it would not retain such items at 
cost without sustaining a loss. In deciding whether such items are 
reasonably usable on other work of the non-profit organization, the 
awarding agency should consider the non-profit organization's plans and 
orders for current and scheduled activity. Contemporaneous purchases of 
common items by the non-profit organization shall be regarded as 
evidence that such items are reasonably usable on the non-profit 
organization's other work. Any acceptance of common items as allocable 
to the terminated portion of the Federal award shall be limited to the 
extent that the quantities of such items on hand, in transit, and on 
order are in excess of the reasonable quantitative requirements of other 
work.
    b. If in a particular case, despite all reasonable efforts by the 
non-profit organization, certain costs cannot be discontinued 
immediately after the effective date of termination, such costs are 
generally allowable within the limitations set forth in this appendix, 
except that any such costs continuing after termination due to the 
negligent or willful failure of the non-profit organization to 
discontinue such costs shall be unallowable.
    c. Loss of useful value of special tooling, machinery, and is 
generally allowable if:
    (1) Such special tooling, special machinery, or equipment is not 
reasonably capable of use in the other work of the non-profit 
organization,
    (2) The interest of the Federal Government is protected by transfer 
of title or by other means deemed appropriate by the awarding agency, 
and
    (3) The loss of useful value for any one terminated Federal award is 
limited to that portion of the acquisition cost which bears the same 
ratio to the total acquisition cost as the terminated portion of the 
Federal award bears to the entire terminated Federal award and other 
Federal awards for which the special tooling, special machinery, or 
equipment was acquired.
    d. Rental costs under unexpired leases are generally allowable where 
clearly shown to have been reasonably necessary for the performance of 
the terminated Federal award less the residual value of such leases, if:
    (1) The amount of such rental claimed does not exceed the reasonable 
use value of the property leased for the period of the Federal award and 
such further period as may be reasonable, and
    (2) The non-profit organization makes all reasonable efforts to 
terminate, assign, settle, or otherwise reduce the cost of such lease. 
There also may be included the cost of alterations of such leased 
property, provided such alterations were necessary for the performance 
of the Federal award, and of reasonable restoration required by the 
provisions of the lease.

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    e. Settlement expenses including the following are generally 
allowable:
    (1) Accounting, legal, clerical, and similar costs reasonably 
necessary for:
    (a) The preparation and presentation to the awarding agency of 
settlement claims and supporting data with respect to the terminated 
portion of the Federal award, unless the termination is for default (see 
Sec. 215.61 of 2 CFR part 215 (OMB Circular A-110)); and
    (b) The termination and settlement of subawards.
    (2) Reasonable costs for the storage, transportation, protection, 
and disposition of property provided by the Federal Government or 
acquired or produced for the Federal award, except when grantees or 
contractors are reimbursed for disposals at a predetermined amount in 
accordance with Sec. 215.32 through 215.37 of 2 CFR part 215 (OMB 
Circular A-110).
    (3) Indirect costs related to salaries and wages incurred as 
settlement expenses in subparagraphs 48.e.(1) and (2) of this appendix. 
Normally, such indirect costs shall be limited to fringe benefits, 
occupancy cost, and immediate supervision.
    f. Claims under sub awards, including the allocable portion of 
claims which are common to the Federal award, and to other work of the 
non-profit organization are generally allowable.
    An appropriate share of the non-profit organization's indirect 
expense may be allocated to the amount of settlements with 
subcontractors and/or subgrantees, provided that the amount allocated is 
otherwise consistent with the basic guidelines contained in Appendix A. 
The indirect expense so allocated shall exclude the same and similar 
costs claimed directly or indirectly as settlement expenses.
    49. Training costs. a. Costs of preparation and maintenance of a 
program of instruction including but not limited to on-the-job, 
classroom, and apprenticeship training, designed to increase the 
vocational effectiveness of employees, including training materials, 
textbooks, salaries or wages of trainees (excluding overtime 
compensation which might arise therefrom), and (i) salaries of the 
director of training and staff when the training program is conducted by 
the organization; or (ii) tuition and fees when the training is in an 
institution not operated by the organization, are allowable.
    b. Costs of part-time education, at an undergraduate or post-
graduate college level, including that provided at the organization's 
own facilities, are allowable only when the course or degree pursued is 
relative to the field in which the employee is now working or may 
reasonably be expected to work, and are limited to:
    (1) Training materials.
    (2) Textbooks.
    (3) Fees charges by the educational institution.
    (4) Tuition charged by the educational institution or, in lieu of 
tuition, instructors' salaries and the related share of indirect costs 
of the educational institution to the extent that the sum thereof is not 
in excess of the tuition which would have been paid to the participating 
educational institution.
    (5) Salaries and related costs of instructors who are employees of 
the organization.
    (6) Straight-time compensation of each employee for time spent 
attending classes during working hours not in excess of 156 hours per 
year and only to the extent that circumstances do not permit the 
operation of classes or attendance at classes after regular working 
hours; otherwise, such compensation is unallowable.
    c. Costs of tuition, fees, training materials, and textbooks (but 
not subsistence, salary, or any other emoluments) in connection with 
full-time education, including that provided at the organization's own 
facilities, at a post-graduate (but not undergraduate) college level, 
are allowable only when the course or degree pursued is related to the 
field in which the employee is now working or may reasonably be expected 
to work, and only where the costs receive the prior approval of the 
awarding agency. Such costs are limited to the costs attributable to a 
total period not to exceed one school year for each employee so trained. 
In unusual cases the period may be extended.
    d. Costs of attendance of up to 16 weeks per employee per year at 
specialized programs specifically designed to enhance the effectiveness 
of executives or managers or to prepare employees for such positions are 
allowable. Such costs include enrollment fees, training materials, 
textbooks and related charges, employees' salaries, subsistence, and 
travel. Costs allowable under this paragraph do not include those for 
courses that are part of a degree-oriented curriculum, which are 
allowable only to the extent set forth in subparagraphs b and c.
    e. Maintenance expense, and normal depreciation or fair rental, on 
facilities owned or leased by the organization for training purposes are 
allowable to the extent set forth in paragraphs 11, 27, and 50 of this 
appendix.
    f. Contributions or donations to educational or training 
institutions, including the donation of facilities or other properties, 
and scholarships or fellowships, are unallowable.
    g. Training and education costs in excess of those otherwise 
allowable under subparagraphs 49.b and c of this appendix may be allowed 
with prior approval of the awarding agency. To be considered for 
approval, the organization must demonstrate that such costs are 
consistently incurred pursuant to an established training and education 
program, and that the course or degree pursued

[[Page 208]]

is relative to the field in which the employee is now working or may 
reasonably be expected to work.
    50. Transportation costs. Transportation costs include freight, 
express, cartage, and postage charges relating either to goods 
purchased, in process, or delivered. These costs are allowable. When 
such costs can readily be identified with the items involved, they may 
be directly charged as transportation costs or added to the cost of such 
items (see paragraph 28 of this appendix). Where identification with the 
materials received cannot readily be made, transportation costs may be 
charged to the appropriate indirect cost accounts if the organization 
follows a consistent, equitable procedure in this respect.
    51. Travel costs.
    a. General. Travel costs are the expenses for transportation, 
lodging, subsistence, and related items incurred by employees who are in 
travel status on official business of the non-profit organization. Such 
costs may be charged on an actual cost basis, on a per diem or mileage 
basis in lieu of actual costs incurred, or on a combination of the two, 
provided the method used is applied to an entire trip and not to 
selected days of the trip, and results in charges consistent with those 
normally allowed in like circumstances in the non-profit organization's 
non-federally-sponsored activities.
    b. Lodging and subsistence. Costs incurred by employees and officers 
for travel, including costs of lodging, other subsistence, and 
incidental expenses, shall be considered reasonable and allowable only 
to the extent such costs do not exceed charges normally allowed by the 
non-profit organization in its regular operations as the result of the 
non-profit organization's written travel policy. In the absence of an 
acceptable, written non-profit organization policy regarding travel 
costs, the rates and amounts established under subchapter I of Chapter 
57, Title 5, United States Code (``Travel and Subsistence Expenses; 
Mileage Allowances''), or by the Administrator of General Services, or 
by the President (or his or her designee) pursuant to any provisions of 
such subchapter shall apply to travel under Federal awards (48 CFR 
31.205-46(a)).
    c. Commercial air travel. (1) Airfare costs in excess of the 
customary standard commercial airfare (coach or equivalent), Federal 
Government contract airfare (where authorized and available), or the 
lowest commercial discount airfare are unallowable except when such 
accommodations would: require circuitous routing; require travel during 
unreasonable hours; excessively prolong travel; result in additional 
costs that would offset the transportation savings; or offer 
accommodations not reasonably adequate for the traveler's medical needs. 
The non-profit organization must justify and document these conditions 
on a case-by-case basis in order for the use of first-class airfare to 
be allowable in such cases.
    (2) Unless a pattern of avoidance is detected, the Federal 
Government will generally not question a non-profit organization's 
determinations that customary standard airfare or other discount airfare 
is unavailable for specific trips if the non-profit organization can 
demonstrate either of the following: that such airfare was not available 
in the specific case; or that it is the non-profit organization's 
overall practice to make routine use of such airfare.
    d. Air travel by other than commercial carrier. Costs of travel by 
non-profit organization-owned, -leased, or -chartered aircraft include 
the cost of lease, charter, operation (including personnel costs), 
maintenance, depreciation, insurance, and other related costs. The 
portion of such costs that exceeds the cost of allowable commercial air 
travel, as provided for in subparagraph] c., is unallowable.
    e. Foreign travel. Direct charges for foreign travel costs are 
allowable only when the travel has received prior approval of the 
awarding agency. Each separate foreign trip must receive such approval. 
For purposes of this provision, ``foreign travel'' includes any travel 
outside Canada, Mexico, the United States, and any United States 
territories and possessions. However, the term ``foreign travel'' for a 
non-profit organization located in a foreign country means travel 
outside that country.
    52. Trustees. Travel and subsistence costs of trustees (or 
directors) are allowable. The costs are subject to restrictions 
regarding lodging, subsistence and air travel costs provided in 
paragraph 51 of this appendix.



  Sec. Appendix C to Part 230--Non-Profit Organizations Not Subject to 
                                This Part

1. Advance Technology Institute (ATI), Charleston, South Carolina
2. Aerospace Corporation, El Segundo, California
3. American Institutes of Research (AIR), Washington DC
4. Argonne National Laboratory, Chicago, Illinois
5. Atomic Casualty Commission, Washington, DC
6. Battelle Memorial Institute, Headquartered in Columbus, Ohio
7. Brookhaven National Laboratory, Upton, New York
8. Charles Stark Draper Laboratory, Incorporated, Cambridge, 
Massachusetts
9. CNA Corporation (CNAC), Alexandria, Virginia
10. Environmental Institute of Michigan, Ann Arbor, Michigan

[[Page 209]]

11. Georgia Institute of Technology/Georgia Tech Applied Research 
Corporation/Georgia Tech Research Institute, Atlanta, Georgia
12. Hanford Environmental Health Foundation, Richland, Washington
13. IIT Research Institute, Chicago, Illinois
14. Institute of Gas Technology, Chicago, Illinois
15. Institute for Defense Analysis, Alexandria, Virginia
16. LMI, McLean, Virginia
17. Mitre Corporation, Bedford, Massachusetts
18. Mitretek Systems, Inc., Falls Church, Virginia
19. National Radiological Astronomy Observatory, Green Bank, West 
Virginia
20. National Renewable Energy Laboratory, Golden, Colorado
21. Oak Ridge Associated Universities, Oak Ridge, Tennessee
22. Rand Corporation, Santa Monica, California
23. Research Triangle Institute, Research Triangle Park, North Carolina
24. Riverside Research Institute, New York, New York
25. South Carolina Research Authority (SCRA), Charleston, South Carolina
26. Southern Research Institute, Birmingham, Alabama
27. Southwest Research Institute, San Antonio, Texas
28. SRI International, Menlo Park, California
29. Syracuse Research Corporation, Syracuse, New York
30. Universities Research Association, Incorporated (National 
Acceleration Lab), Argonne, Illinois
31. Urban Institute, Washington DC
32. Non-profit insurance companies, such as Blue Cross and Blue Shield 
Organizations
33. Other non-profit organizations as negotiated with awarding agencies

                        PARTS 231	299 [RESERVED]

[[Page 211]]

    Subtitle B--Federal Agency Regulations for Grants and Agreements

[[Page 213]]



          CHAPTER III--DEPARTMENT OF HEALTH AND HUMAN SERVICES




  --------------------------------------------------------------------
Part                                                                Page
376             Nonprocurement debarment and suspension.....         215
382             Requirements for drug-free workplace 
                    (financial assistance)..................         217

[[Page 215]]



PART 376_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
376.10 What does this part do?
376.20 Does this part apply to me?
376.30 What policies and procedures must I follow?

                            Subpart A_General

376.137 Who in the Department of Health and Human Services (HHS) may 
          grant an exception to let an excluded person participate in a 
          covered transaction?
376.147 Does an exclusion from participation in Federal health care 
          programs under Title XI of the Social Security Act affect a 
          person's eligibility to participate in nonprocurement and 
          procurement transactions?

                     Subpart B_Covered Transactions

376.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

376.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?
376.370 What are the obligations of Medicare carriers and 
          intermediaries?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

376.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subpart E--Excluded Parties List System [Reserved]

Subpart F--General Principles Relating to Suspension and Debarment Actions 
[Reserved]

Subpart G--Suspension [Reserved]

Subpart H--Debarment [Reserved]

                          Subpart I_Definitions

376.935 Disqualified (HHS supplement to government-wide definition at 2 
          CFR 180.935).
376.995 Principal (HHS supplement to government-wide definition at 2 CFR 
          180.995).

Subpart J [Reserved]

    Authority: 5 U.S.C. 301; 31 U.S.C. 6101 (note); E.O. 12689 (3 CFR, 
1989 Comp., p. 235); E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 11738 
(3 CFR, 1973 Comp., p. 799).

    Source: 72 FR 9234, Mar. 1, 2007, unless otherwise noted.



Sec. 376.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Department of Health and Human Services (HHS or Department) 
policies and procedures for nonprocurement debarment and suspension. HHS 
thereby gives regulatory effect to the OMB guidance as supplemented by 
this part. This part satisfies the requirements in 2 CFR 180.20, section 
3 of Executive Order 12549, ``Debarment and Suspension'' (3 CFR 1986 
Comp., p. 189), Executive Order 12689, ``Debarment and Suspension'' (3 
CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Pub. L. 
103-355, 108 Stat. 3327).



Sec. 376.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)), apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' under 
subpart B of 2 CFR part 180, as supplemented by this part, and the 
definition of nonprocurement transaction'' at 2 CFR 180.970.
    (b) Respondent in HHS suspension or debarment action;
    (c) HHS debarment or suspension official;
    (d) HHS grants officer, agreements officer, or other HHS official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.



Sec. 376.30  What policies and procedures must I follow?

    The policies and procedures that you must follow are the policies 
and procedures specified in each applicable section of the OMB guidance 
in subparts A through I of 2 CFR part 180, including the corresponding 
section that HHS published in 2 CFR part 376 identified

[[Page 216]]

by the same section number. The contracts under a nonprocurement 
transaction, that are covered transactions, for example, are specified 
by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented 
by section 220 in this part (i.e., 2 CFR 376.220). For any section of 
OMB guidance in subparts A through I of 2 CFR part 180 that has no 
corresponding section in this part, HHS policies and procedures are 
those in the OMB guidance at 2 CFR part 180.



                            Subpart A_General



Sec. 376.137  Who in the Department of Health and Human Services (HHS) may 

grant an exception to let an excluded person participate in a covered transaction?

    The HHS Debarring/Suspension Official has the authority to grant an 
exception to let an excluded person participate in a covered transaction 
as provided at 2 CFR 180.135.



Sec. 376.147  Does an exclusion from participation in Federal health care

programs under Title XI of the Social Security Act affect a person's eligibility to 
          participate in nonprocurement and procurement transactions?

    Any individual or entity excluded from participation in Medicare, 
Medicaid, and other Federal health care programs under Title XI of the 
Social Security Act, 42 U.S.C. 1320a-7, 1320a-7a, 1320c-5, or 1395ccc, 
and implementing regulation at 42 CFR part 1001, will be subject to the 
prohibitions against participating in covered transactions, as set forth 
in this part and part 180, and is prohibited from participating in all 
Federal government procurement programs and nonprocurement programs. For 
example, if an individual or entity is excluded by the HHS Office of the 
Inspector General from participation in Medicare, Medicaid, and/or other 
Federal health care programs, in accordance with 42 U.S.C. 1320a-7, then 
that individual or entity is prohibited from participating in all 
Federal government procurement and nonprocurement programs (42 CFR part 
1001).



                     Subpart B_Covered Transactions



Sec. 376.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    In addition to the contracts covered under 2 CFR 180.220(b), this 
part also applies to all lower tiers of subcontracts under covered 
nonprocurement transactions, as permitted under the OMB guidance at 2 
CFR 180.220(c). (See optional lower tier coverage in the diagram in the 
appendix to 2 CFR part 180.)



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 376.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    To communicate the requirements to lower-tier participants, you must 
include a term or condition in the lower-tier transaction requiring the 
lower-tier participant's compliance with 2 CFR part 180, as supplemented 
by this subpart.



Sec. 376.370  What are the obligations of Medicare carriers and intermediaries?

    Because Medicare carriers, intermediaries and other Medicare 
contractors undertake responsibilities on behalf of the Medicare program 
(Title XVIII of the Social Security Act), these entities assume the same 
obligations and responsibilities as the HHS Medicare officials 
responsible for the Medicare Program with respect to actions under 2 CFR 
part 376. This would include the requirement for these entities to check 
the Excluded Parties List System (EPLS) and take necessary steps to 
effect this part.

[[Page 217]]



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 376.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435, you must include a term or condition in the transaction that 
requires the participant's compliance with subpart C of 2 CFR part 180, 
as supplemented by subpart C of this part, and require the participant 
to include a similar term or condition in lower-tier covered 
transactions.

Subpart E--Excluded Parties List System [Reserved]

Subpart F--General Principles Relating to Suspension and Debarment Actions 
[Reserved]

Subpart G--Suspension [Reserved]

Subpart H--Debarment [Reserved]



                          Subpart I_Definitions



Sec. 376.935  Disqualified. (HHS supplement to government-wide definition at 2 CFR 180.935).

    Disqualified means persons prohibited from participating in 
specified federal procurement and nonprocurement transactions pursuant 
to the statutes listed in 2 CFR 180.935, and pursuant to Title XI of the 
Social Security Act (42 U.S.C. 1320a-7, 1320a-7a, 1320c-5, and 1395ccc) 
as enforced by the HHS Office of the Inspector General.



Sec. 376.995  Principal (HHS supplement to government-wide definition at 2 CFR 180.995).

    Principal means individuals, in addition to those listed at 2 CFR 
180.995, who participate in HHS covered transactions including:
    (a) Providers of federally required audit services; and
    (b) Researchers.

Subpart J [Reserved]



PART 382_REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE)--Table of Contents



Sec.
382.10 What does this part do?
382.20 Does this part apply to me?
382.30 What policies and procedures must I follow?

Subpart A [Reserved]

      Subpart B_Requirements for Recipients Other Than Individuals

382.225 Whom in HHS does a recipient other than an individual notify 
          about a criminal drug conviction?

        Subpart C_Requirements for Recipients Who Are Individuals

382.300 Whom in HHS does a recipient who is an individual notify about a 
          criminal drug conviction?

         Subpart D_Responsibilities of Agency Awarding Officials

382.400 What method do I use as an agency awarding official to obtain a 
          recipient's agreement to comply with the OMB guidance?

           Subpart E_Violations of This Part and Consequences

382.500 Who in HHS determines that a recipient other than an individual 
          violated the requirements of this part?
382.505 Who in HHS determines that a recipient who is an individual 
          violated the requirements of this part?

Subpart F [Reserved]

    Authority: 41 U.S.C. 701-707.

    Source: 74 FR 58190, Nov. 12, 2009, unless otherwise noted.



Sec. 382.10  What does this part do?

    This part requires that the award and administration of HHS grants 
and cooperative agreements comply with Office of Management and Budget 
(OMB) guidance implementing the portion of the Drug-Free Workplace Act 
of 1988 (41 U.S.C. 701-707, as amended, hereafter referred to as ``the 
Act'') that applies to grants. It thereby--

[[Page 218]]

    (a) Gives regulatory effect to the OMB guidance (Subparts A through 
F of 2 CFR part 182) for the HHS grants and cooperative agreements; and
    (b) Establishes HHS policies and procedures for compliance with the 
Act that are the same as those of other Federal agencies, in conformance 
with the requirement in 41 U.S.C. 705 for Governmentwide implementing 
regulations.



Sec. 382.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through F of 2 CFR part 182 (see table at 2 CFR 
182.115(b)) apply to you if you are a--
    (a) Recipient of an HHS grant or cooperative agreement; or
    (b) HHS awarding official.



Sec. 382.30  What policies and procedures must I follow?

    (a) General. You must follow the policies and procedures specified 
in applicable sections of the OMB guidance in subparts A through F of 2 
CFR part 182, as implemented by this part.
    (b) Specific sections of OMB guidance that this part supplements. In 
implementing the OMB guidance in 2 CFR part 182, this part supplements 
four sections of the guidance, as shown in the following table. For each 
of those sections, you must follow the policies and procedures in the 
OMB guidance, as supplemented by this part.

----------------------------------------------------------------------------------------------------------------
                                         Section in this part
       Section of OMB  guidance           where supplemented           What the supplementation clarifies
----------------------------------------------------------------------------------------------------------------
(1) 2 CFR 182.225(a).................  Sec.  382.225.........  Whom in HHS a recipient other than an individual
                                                                 must notify if an employee is convicted for a
                                                                 violation of a criminal drug statute in the
                                                                 workplace.
(2) 2 CFR 182.300(b).................  Sec.  382.300.........  Whom in HHS a recipient who is an individual
                                                                 must notify if he or she is convicted of a
                                                                 criminal drug offense resulting from a
                                                                 violation occurring during the conduct of any
                                                                 award activity.
(3) 2 CFR 182.500....................  Sec.  382.500.........  Who in HHS is authorized to determine that a
                                                                 recipient other than an individual is in
                                                                 violation of the requirements of 2 CFR part
                                                                 182, as implemented by this part.
(4) 2 CFR 182.505....................  Sec.  382.505.........  Who in HHS is authorized to determine that a
                                                                 recipient who is an individual is in violation
                                                                 of the requirements of 2 CFR part 182, as
                                                                 implemented by this part.
----------------------------------------------------------------------------------------------------------------

    (c) Sections of the OMB guidance that this part does not supplement. 
For any section of OMB guidance in subparts A through F of 2 CFR part 
182 that is not listed in paragraph (b) of this section, HHS policies 
and procedures are the same as those in the OMB guidance.

Subpart A [Reserved]



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 382.225  Whom in HHS does a recipient other than an individual notify about a criminal drug conviction?

    A recipient other than an individual that is required under 2 CFR 
182.225(a) to notify Federal agencies about an employee's conviction for 
a criminal drug offense must notify each HHS office from which it 
currently has an award.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 382.300  Whom in HHS does a recipient who is an individual notify about a criminal drug conviction?

    A recipient who is an individual and is required under 2 CFR 
182.300(b) to notify Federal agencies about a conviction for a criminal 
drug offense must notify each HHS office from which it currently has an 
award.



         Subpart D_Responsibilities of Agency Awarding Officials



Sec. 382.400  What method do I use as an agency awarding official to obtain a recipient's agreement to comply with the OMB guidance?

    To obtain a recipient's agreement to comply with applicable 
requirements in the OMB guidance at 2 CFR part 182, you must include the 
following term or condition in the award:

[[Page 219]]

    Drug-free workplace. You as the recipient must comply with drug-free 
workplace requirements in Subpart B (or Subpart C, if the recipient is 
an individual) of part 382, which adopts the Governmentwide 
implementation (2 CFR part 182) of sec. 5152-5158 of the Drug-Free 
Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 
701-707).



           Subpart E_Violations of This Part and Consequences



Sec. 382.500  Who in HHS determines that a recipient other than an individual violated the requirements of this part?

    The agency head is the official authorized to make the determination 
under 2 CFR 182.500.



Sec. 382.505  Who in HHS determines that a recipient who is an individual violated the requirements of this part?

    The agency head is the official authorized to make the determination 
under 2 CFR 182.505.

Subpart F [Reserved]

[[Page 221]]



                  CHAPTER IV--DEPARTMENT OF AGRICULTURE




  --------------------------------------------------------------------

417             Nonprocurement debarment and suspension.....         223

[[Page 223]]



PART 417_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
417.10 What does this part do?
417.20 Does this part apply to me?
417.30 What policies and procedures must I follow?

                            Subpart A_General

417.137 Who in the USDA may grant an exception to let an excluded person 
          participate in a covered transaction?

                     Subpart B_Covered Transactions

417.210 Which nonprocurement transactions are covered transactions?
417.215 Which nonprocurement transactions, in addition to those listed 
          in 2 CFR 180.215, are not covered transactions?
417.220 Are any procurement contracts included as covered transactions?
417.221 How would the exclusions from coverage for the USDA's foreign 
          assistance programs apply?
417.222 How would the exclusions from coverage for the USDA's export 
          credit guarantee and direct credit programs apply?

    Subpart C_Responsibilities of Participants Regarding Transactions

417.332 What methods must I use to pass down requirements to 
          participants in lower tier covered transactions with whom I 
          intend to do business?

   Subpart D_Responsibilities of Department of Agriculture Officials 
                         Regarding Transactions

417.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-F [Reserved]

                          Subpart G_Suspension

417.755 When will I know whether the USDA suspension is continued or 
          terminated?

                           Subpart H_Debarment

417.800 What are the USDA causes for debarment?
417.865 How long may my debarment last?
417.870 When do I know if the USDA debarring official debars me?

                          Subpart I_Definitions

417.930 Debarring official (USDA supplement to governmentwide definition 
          at 2 CFR 180.930).
417.1010 Suspending official (USDA supplement to governmentwide 
          definition at 2 CFR 180.1010).

Subpart J [Reserved]

    Authority: 5 U.S.C. 301; Pub. L. 101-576, 104 Stat. 2838; Sec. 2455, 
Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); 7 U.S.C. 2209j; 
E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12698 (3 CFR, Comp., p. 
235); 7 CFR 2.28.

    Source:  75 FR 29185, May 25, 2010, unless otherwise noted.



Sec. 417.10  What does this part do?

    This part adopts the OMB guidance in subparts A through I of 2 CFR 
part 180, as supplemented by this part, as the USDA policies and 
procedures for nonprocurement debarment and suspension. It thereby gives 
regulatory effect for the USDA to the OMB guidance, as supplemented by 
this part. This part satisfies the requirements in section 3 of 
Executive Order 12549, ``Debarment and Suspension'' (3 CFR 1986 Comp., 
p. 189), Executive Order 12689, ``Debarment and Suspension'' (3 CFR 1989 
Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Pub. L. 103-355, 
108 Stat. 3327).



Sec. 417.20  Does this part apply to me?

    Through this part, pertinent portions of the OMB guidance in 
subparts A through I of 2 CFR part 180 (see table at 2 CFR 180.100(b)) 
apply to you if you are a:
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970, as supplemented by Sec. Sec. 417.215 
and 417.220 of this part);
    (b) Respondent in a USDA debarment and suspension action;
    (c) USDA debarment or suspension official; or
    (d) USDA grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.

[[Page 224]]



Sec. 417.30  What policies and procedures must I follow?

    The USDA policies and procedures that you must follow are the 
policies and procedures specified in this regulation and each applicable 
section of the OMB guidance in subparts A through I of 2 CFR part 180, 
as that section is supplemented by the section in this part with the 
same section number. The contracts that are covered transactions, for 
example, are specified by section 220 of the OMB guidance (i.e., 2 CFR 
180.220) as supplemented by section 220 in this part (i.e., Sec. 
417.220). For any section of OMB guidance in subparts A through I of 2 
CFR part 180 that has no corresponding section in this part, USDA 
policies and procedures are those in the OMB guidance.



                            Subpart A_General



Sec. 417.137  Who in the USDA may grant an exception to let an excluded person participate in a covered transaction?

    Within the USDA, a debarring official may grant an exception to let 
an excluded person participate in a covered transaction as provided 
under 2 CFR 180.135.



                     Subpart B_Covered Transactions



Sec. 417.210  Which nonprocurement transactions are covered transactions?

    All nonprocurement transactions, as defined in Sec. 417.970, are 
covered transactions unless listed in Sec. 417.215.



Sec. 417.215  Which nonprocurement transactions, in addition to those listed in 2 CFR 180.215, are not covered transactions?

    (a) Transactions not covered. In addition to the nonprocurement 
transactions listed in 2 CFR 180.215, the following nonprocurement 
transactions are not covered transactions:
    (1) An entitlement or mandatory award required by a statute, 
including a lower tier entitlement or mandatory award that is required 
by a statute.
    (2) The export or substitution of Federal timber governed by the 
Forest Resources Conservation and Shortage Relief Act of 1990, 16 U.S.C. 
620 et seq. (The ``Export Act''), which prevents a debarred person from 
entering into any contract for the purchase of unprocessed timber from 
Federal lands. See 16 U.S.C. 620d(d)(1)(A).
    (3) The receipt of licenses, permits, certificates, and 
indemnification under regulatory programs conducted in the interest of 
public health and safety, and animal and plant health and safety.
    (4) The receipt of official grading and inspection services, animal 
damage control services, public health and safety inspection services, 
and animal and plant health and safety inspection services.
    (5) If the person is a State or local government, the provision of 
official grading and inspection services, animal damage control 
services, animal and plant health and safety inspection services.
    (6) The receipt of licenses, permits, or certificates under 
regulatory programs conducted in the interest of ensuring fair trade 
practices.
    (7) Permits, licenses, exchanges and other acquisitions of real 
property, rights of way, and easements under natural resource management 
programs.
    (8) Any transaction to be implemented outside the United States that 
is below the primary tier covered transaction in a USDA foreign 
assistance program.
    (9) Any transaction to be implemented outside the United States that 
is below the primary tier covered transaction in a USDA export credit 
guarantee program or direct credit program.
    (b) Limited requirement to check EPLS. Notwithstanding the fact that 
transactions to be implemented outside the United States that are below 
the primary tier covered transaction in a USDA foreign assistance 
program, export credit guarantee program or direct credit program are 
not covered transactions, pursuant to paragraphs (a)(8) and (9) of this 
section, primary tier participants under these programs must check the 
EPLS prior to entering into any transaction with a person at the first 
lower tier and shall not enter into such a transaction if the person is

[[Page 225]]

excluded or disqualified under the EPLS.
    (c) Exception. A cause for suspension or debarment under Sec. 
180.700 or Sec. 180.800 of this title (as supplemented by Sec. 
417.800) may be based on the actions of a person with respect to a 
procurement or nonprocurement transaction under a USDA program even if 
such transaction has been excluded from covered transaction status by 
this section or Sec. 417.220.



Sec. 417.220  Are any procurement contracts included as covered transactions?

    (a) Covered transactions under this part:
    (1) Do not include any procurement contracts awarded directly by a 
Federal agency; but
    (2) Do include some procurement contracts awarded by non-Federal 
participants in nonprocurement covered transactions (see appendix to 
this part).
    (b) Specifically, a contract for goods or services is a covered 
transaction if any of the following applies:
    (1) The contract is awarded by a participant in a nonprocurement 
transaction that is covered under Sec. 417.210, and the amount of the 
contract is expected to equal or exceed $25,000.
    (2) The contract requires the consent of a USDA official. In that 
case, the contract, regardless of the amount, always is a covered 
transaction, and it does not matter who awarded it. For example, it 
could be a subcontract awarded by a contractor at a tier below a 
nonprocurement transaction, as shown in the appendix to this part.
    (3) The contract is for federally-required audit services.
    (c) Any procurement contract to be implemented outside the United 
States that is below the primary tier covered transaction in a USDA 
foreign assistance program is not a covered transaction, notwithstanding 
the provisions in paragraphs (a) and (b) of this section.
    (d) Any procurement contract to be implemented outside the United 
States that is below the primary tier covered transaction in a USDA 
export credit guarantee program or direct credit program is not a 
covered transaction, notwithstanding the provisions in paragraphs (a) 
and (b) of this section.
    (e) Notwithstanding the fact that procurement contracts to be 
implemented outside the United States that are below the primary tier 
covered transaction in a USDA foreign assistance program, export credit 
guarantee program or direct credit program are not covered transactions, 
pursuant to paragraphs (c) and (d) of this section, primary tier 
participants under these programs must check the EPLS prior to entering 
into any procurement contract that is expected to equal or exceed 
$25,000 with a person at the first lower tier and shall not enter into 
such a procurement contract if the person is excluded or disqualified 
under the EPLS.



Sec. 417.221  How would the exclusions from coverage for the USDA's foreign assistance programs apply?

    The primary tier covered transaction would be the food aid grant 
agreement entered into between USDA and a program participant, such as a 
U.S. private voluntary organization. USDA would have to check the EPLS 
before entering into the food aid grant agreement to ensure that the 
U.S. private voluntary organization that would be the primary tier 
participant is not excluded or disqualified. A transaction at the first 
lower tier might be a subrecipient agreement between the U.S. private 
voluntary organization and a foreign subrecipient of the commodities 
that were provided under the food aid grant agreement. Pursuant to Sec. 
417.215(a)(8), this nonprocurement transaction would not be a covered 
transaction. In addition, a transaction at the first lower tier might be 
a procurement contract entered into between the U.S. private voluntary 
organization and a foreign entity to provide supplies or services that 
are expected to equal or exceed $25,000 in value and that are needed by 
such organization to implement activities under the food aid grant 
agreement. Pursuant to Sec. 417.220(c), this procurement contract would 
not be a covered transaction. However, pursuant to Sec. Sec. 417.215(b) 
and 417.220(e), the U.S. private voluntary organization would be 
prohibited from entering into, at the first lower tier, an

[[Page 226]]

agreement with a subrecipient or a procurement contract that is expected 
to equal or exceed $25,000 with an entity that appears on the EPLS as 
excluded or disqualified.



Sec. 417.222  How would the exclusions from coverage for USDA's export credit guarantee and direct credit programs apply?

    (a) Export credit guarantee program. In the case of the export 
credit guarantee program, the primary tier covered transaction would be 
the guarantee issued by the USDA to a U.S. exporter. The U.S. exporter 
usually assigns the guarantee to a U.S. financial institution, and this 
would create another primary tier covered transaction between USDA and 
the U.S. financial institution. USDA would have to check the EPLS before 
issuing a guarantee or accepting a guarantee assignment to ensure that 
the U.S. exporter or financial institution that would be the primary 
tier participant is not excluded or disqualified. A transaction at the 
first lower tier under the export credit guarantee program might be a 
payment obligation of a foreign bank to the U.S. exporter to pay on 
behalf of the importer for the exported U.S. commodities that are 
covered by the guarantee. Similarly, a transaction at the first lower 
tier might be a payment obligation of a foreign bank under an 
instrument, such as a loan agreement or letter of credit, to the U.S. 
financial institution assigned the guarantee, which has paid the 
exporter for the exported U.S. commodities and, in so doing, issued a 
loan to the foreign bank, which the foreign bank is obligated to repay 
on deferred payment terms. Pursuant to Sec. 417.215(a)(9), these 
nonprocurement transactions would not be covered transactions. In 
addition, a transaction at the first lower tier under the export credit 
guarantee program might be a procurement contract (i.e., a contract for 
the purchase and sale of goods) that is expected to equal or exceed 
$25,000 entered into between the U.S. exporter and the foreign importer 
for the U.S. commodities, the payment for which is covered by the 
guarantee. Pursuant to Sec. 417.220(d), this procurement contract would 
not be a covered transaction. However, pursuant to Sec. Sec. 417.215(b) 
and 417.220(e), the U.S. exporter or U.S. financial institution would be 
prohibited from entering into, at the first lower tier, an agreement 
with an importer (or intervening purchaser) or foreign bank or a 
procurement contract that is expected to equal or exceed $25,000 with an 
entity that appears on the EPLS as excluded or disqualified.
    (b) Direct credit program. In the case of the direct credit program, 
the primary tier covered transaction would be the financing agreement 
between the USDA and the U.S. exporter. USDA purchases the exporter's 
account receivable in a particular transaction pursuant to the financing 
agreement. On occasion, such transaction may contemplate a payment 
obligation of a U.S. or foreign bank to make the required payments. USDA 
would have to check the EPLS before entering into a financing agreement 
or accepting such a payor to ensure that the U.S. exporter or the bank, 
if any, that would be the primary tier participant is not excluded or 
disqualified. A transaction at the first lower tier might be a payment 
obligation of the importer to pay the exporter for the exported U.S. 
commodities that are covered by the financing agreement. Pursuant to 
Sec. 417.215(a)(9), this nonprocurement transaction would not be a 
covered transaction. In addition, a transaction at the first lower tier 
might be a procurement contract that is expected to equal or exceed 
$25,000 entered into between the U.S. exporter and the foreign importer 
for the U.S. commodities, the payment for which is covered by the 
financing agreement. Pursuant to Sec. 417.220(d), this procurement 
contract would not be a covered transaction. However, pursuant to 
Sec. Sec. 417.215(b) and 417.220(e), the U.S. exporter would be 
prohibited from entering into, at the first lower tier, an agreement 
with an importer (or intervening purchaser) or bank, or a procurement 
contract that is expected to equal or exceed $25,000 with an entity that 
appears on the EPLS as excluded or disqualified.

[[Page 227]]



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 417.332  What methods must I use to pass down requirements to participants

in lower tier covered transactions with whom I intend to do business?

    You as a participant must include a term or condition in lower tier 
covered transactions requiring lower tier participants to comply with 
subpart C of the OMB guidance in 2 CFR part 180, as supplemented by 
subpart C of this part.



   Subpart D_Responsibilities of Department of Agriculture Officials 
                         Regarding Transactions



Sec. 417.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435, you must include a term or condition in the transaction that 
requires the participant's compliance with subpart C of 2 CFR part 180, 
as supplemented by subpart C of this part, and requires the participant 
to include a similar term or condition in lower tier covered 
transactions.

Subparts E-F [Reserved]



                          Subpart G_Suspension



Sec. 417.755  When will I know whether the USDA suspension is continued or terminated?

    The suspending official must make a written decision whether to 
continue, modify, or terminate your suspension within 45 days of closing 
the official record. The official record closes upon the suspending 
official's receipt of final submissions, information and findings of 
fact, if any. The suspending official may extend that period for good 
cause. However, the record will remain open for the full 30 days, as 
called for in Sec. 180.725, even when you make a submission before the 
30 days expire.



                           Subpart H_Debarment



Sec. 417.800  What are the USDA causes for debarment?

    A Federal agency may debar a person for--
    (a) Conviction of or civil judgment for--
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public or private 
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including 
those proscribing price fixing between competitors, allocation of 
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, tax 
evasion, receiving stolen property, making false claims, or obstruction 
of justice; or
    (4) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects your 
present responsibility;
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as--
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction;
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
March 1, 1989, or a procurement debarment by any Federal agency taken 
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;
    (2) Knowingly doing business with an ineligible person, except as 
permitted under Sec. 180.135;
    (3) Failure to pay a single substantial debt, or a number of 
outstanding debts (including disallowed costs and overpayments, but not 
including sums owed

[[Page 228]]

the Federal Government under the Internal Revenue Code) owed to any 
Federal agency or instrumentality, provided the debt is uncontested by 
the debtor or, if contested, provided that the debtor's legal and 
administrative remedies have been exhausted;
    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec. 180.640 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of the provisions of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701); or
    (d) Any other cause of so serious or compelling a nature that it 
affects your present responsibility.



Sec. 417.865  How long may my debarment last?

    (a) If the debarring official decides to debar you, your period of 
debarment will be based on the seriousness of the cause(s) upon which 
your debarment is based. Generally, debarment should not exceed 3 years. 
However, if circumstances warrant, the debarring official may impose a 
longer period of debarment.
    (b) In determining the period of debarment, the debarring official 
may consider the factors in 2 CFR 180.860. If a suspension has preceded 
your debarment, the debarring official must consider the time you were 
suspended.
    (c) If the debarment is for a violation of the provisions of the 
Drug-Free Workplace Act of 1988, your period of debarment may not exceed 
5 years.
    (d) The Secretary shall permanently debar from participation in USDA 
programs any individual, organization, corporation, or other entity 
convicted of a felony for knowingly defrauding the United States in 
connection with any program administered by USDA.
    (1) Reduction. If the Secretary considers it appropriate s/he may 
reduce a debarment under this subsection to a period of not less than 10 
years.
    (2) Exemption. A debarment under this subsection shall not apply 
with regard to participation in USDA domestic food assistance programs. 
For purposes of this paragraph, participation in a domestic food 
assistance program does not include acting as an authorized retail food 
store in the Supplemental Nutrition Assistance Program (SNAP), the 
Special Supplemental Nutrition Assistance Program for Women, Infants, 
and Children (WIC), or as a nonbeneficiary entity in any of the domestic 
food assistance programs. The programs include:
    (i) Special Nutrition Assistance Program, 7 U.S.C. 2011, et seq.;
    (ii) Food Distribution Program on Indian Reservations, 7 U.S.C. 
2013(b);
    (iii) National School Lunch Program, 42 U.S.C. 1751, et seq.;
    (iv) Summer Food Service Program for Children, 42 U.S.C. 1761; Child 
and Adult Care Food Program, 42 U.S.C. 1766;
    (v) Special Milk Program for Children, 42 U.S.C. 1772; School 
Breakfast Program, 42 U.S.C. 1773;
    (vi) Special Supplemental Nutrition Program for Women, Infants, and 
Children, 42 U.S.C. 1786;
    (vii) Commodity Supplemental Food Program, 42 U.S.C. 612c note;
    (viii) WIC Farmers Market Nutrition Program, 42 U.S.C. 1786;
    (ix) Senior Farmers' Market Nutrition Program, 7 U.S.C. 3007; and
    (x) Emergency Food Assistance Program, 7 U.S.C. 7501, et. seq.



Sec. 417.870  When do I know if the USDA debarring official debars me?

    (a) The debarring official must make a written decision whether to 
debar within 45 days of closing the official record. The official record 
closes upon the debarring official's receipt of final submissions, 
information and findings of fact, if any. The debarring official may 
extend that period for good cause. However, the record will remain open 
for the full 30 days, as called for in Sec. 180.820, even when you make 
a submission before the 30 days expire.
    (b) The debarring official sends you written notice, pursuant to 
Sec. 180.615, that the official decided, either:
    (1) Not to debar you; or
    (2) To debar you. In this event, the notice:
    (i) Refers to the Notice of Proposed Debarment;
    (ii) Specifies the reasons for your debarment;
    (iii) States the period of your debarment, including the effective 
dates; and

[[Page 229]]

    (iv) Advises you that your debarment is effective for covered 
transactions and contracts that are subject to the Federal Acquisition 
Regulation (48 CFR chapter 1), throughout the Executive Branch of the 
Federal Government unless an agency head or an authorized designee 
grants an exception.



                          Subpart I_Definitions



Sec. 417.930  Debarring official (USDA supplement to governmentwide definition at 2 CFR 180.930).

    (a) Debarring official means an agency official who is authorized to 
impose debarment. The debarring official is either:
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) The head of an organizational unit within USDA (e.g., 
Administrator, Food and Nutrition Service), who has been delegated 
authority in 7 CFR part 2 to carry out a covered transaction, is 
delegated authority to act as the debarring official in connection with 
such transaction. This authority to act as a debarring official may not 
be redelegated below the head of the organizational unit, except that, 
in the case of the Forest Service, the Chief may redelegate the 
authority to act as a debarring official to the Deputy Chief for the 
National Forest System or an Associate Deputy Chief for the National 
Forest System.



Sec. 417.1010  Suspending official (USDA supplement to governmentwide definition at 2 CFR 180.1010).

    (a) Suspending official means an agency official who is authorized 
to impose suspension. The suspending official is either:
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) The head of an organizational unit within USDA (e.g., 
Administrator, Food and Nutrition Service), who has been delegated 
authority in 7 CFR part 2 of this title to carry out a covered 
transaction, is delegated authority to act as the suspending official in 
connection with such transaction. This authority to act as a suspending 
official may not be redelegated below the head of the organizational 
unit, except that, in the case of the Forest Service, the Chief may 
redelegate the authority to act as a suspending official to the Deputy 
Chief for the National Forest System or an Associate Deputy Chief for 
the National Forest System.

Subpart J [Reserved]

[[Page 231]]



                     CHAPTER VI--DEPARTMENT OF STATE




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[[Page 233]]



PART 601_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
601.10 What does this part do?
601.20 Does this part apply to me?
601.30 What policies and procedures must I follow?

                            Subpart A_General

601.137 Who in the Department of State may grant an exception to let an 
          excluded person participate in a covered transaction?

                     Subpart B_Covered Transactions

601.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

601.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

601.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-H [Reserved]

                          Subpart I_Definitions

601.930 Debarring Official (Department of State supplement to 
          government-wide definition at 2 CFR 180.930).
601.1010 Suspending Official (Department of State supplement to 
          government-wide definition at 2 CFR 180.1010).

Subpart J [Reserved]

    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).

    Source: 72 FR 10034, Mar. 7, 2007, unless otherwise noted.



Sec. 601.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the DOS policies and procedures for nonprocurement debarment and 
suspension. It thereby gives regulatory effect for DOS to the OMB 
guidance as supplemented by this part. This part satisfies the 
requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189); Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235); and section 
2455 of the Federal Acquisition Streamlining Act of 1994, Pub. L. 103-
355 (31 U.S.C. 6101 note).



Sec. 601.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970);
    (b) Respondent in a DOS suspension or debarment action;
    (c) DOS debarment or suspension official; and
    (d) DOS grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.



Sec. 601.30  What policies and procedures must I follow?

    The DOS policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180 and any supplemental 
policies and procedures set forth in this part.



                            Subpart A_General



Sec. 601.137  Who in the Department of State may grant an exception to let an excluded person participate in a covered transaction?

    The Procurement Executive, Office of the Procurement Executive, DOS, 
may grant an exception permitting an excluded person to participate in a 
particular covered transaction. If the Procurement Executive, Office of 
the Procurement Executive, DOS, grants an exception, the exception must 
be in writing and state the reason(s) for deviating from the government-
wide policy in Executive Order 12549.

[[Page 234]]



                     Subpart B_Covered Transactions



Sec. 601.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    In addition to the contracts covered under 2 CFR 180.220(b) of the 
OMB guidance, this part applies to any contract, regardless of tier, 
that is awarded by a contractor, subcontractor, supplier, consultant, or 
its agent or representative in any transaction, if the contract is to be 
funded or provided by the DOS under a covered nonprocurement transaction 
and the amount of the contract is expected to equal or exceed $25,000. 
This extends the coverage of the DOS nonprocurement suspension and 
debarment requirements to all lower tiers of subcontracts under covered 
nonprocurement transactions, as permitted under the OMB guidance at 2 
CFR 180.220(c) (see optional lower tier coverage in the figure in the 
appendix to 2 CFR part 180).



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 601.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You, as a participant, must include a term or condition in lower-
tier transactions requiring lower-tier participants to comply with 
subpart C of the OMB guidance in 2 CFR part 180, as supplemented by this 
subpart.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 601.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-H [Reserved]



                          Subpart I_Definitions



Sec. 601.930  Debarring Official (Department of State supplement to government-wide definition at 2 CFR 180.930).

    The Debarring Official for the Department of State is the 
Procurement Executive, Office of the Procurement Executive (A/OPE).



Sec. 601.1010  Suspending Official (Department of Energy supplement to government-wide definition at 2 CFR 180.1010).

    The Debarring Official for the Department of State is the 
Procurement Executive, Office of the Procurement Executive (A/OPE).

Subpart J [Reserved]

[[Page 235]]



              CHAPTER VIII--DEPARTMENT OF VETERANS AFFAIRS




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[[Page 237]]



PART 801_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
801.10 What does this part do?
801.20 Does this part apply to me?
801.30 What policies and procedures must I follow?

                            Subpart A_General

801.137 Who in the Department of Veterans Affairs may grant an exception 
          to allow an excluded person to participate in a covered 
          transaction?

                     Subpart B_Covered Transactions

801.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

801.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

801.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-H [Reserved]

                          Subpart I_Definitions

801.930 Debarring official (Department of Veterans Affairs supplement to 
          government-wide definition at 2 CFR 180.930).
801.995 Principal (Department of Veterans Affairs supplement to 
          government-wide definition at 2 CFR 180.995).
801.1010 Suspending official (Department of Veterans Affairs supplement 
          to government-wide definition at 2 CFR 180.1010).

   Subpart J_Limited Denial of Participation (Department of Veterans 
      Affairs Optional Subpart for OMB Guidance at 2 CFR Part 180).

801.1100 General.
801.1105 Cause for a limited denial of participation.
801.1110 Scope and period of a limited denial of participation.
801.1111 Notice.
801.1112 Conference.
801.1113 Appeal.

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 38 
U.S.C. 501(a) and 3703(c).

    Source: 72 FR 30240, May 31, 2007, unless otherwise noted.



Sec. 801.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Department of Veterans Affairs (VA) policies and procedures for 
nonprocurement debarment and suspension. It thereby gives regulatory 
effect for the Department of Veterans Affairs to the OMB guidance as 
supplemented by this part. This part satisfies the requirements in 
section 3 of Executive Order 12549, ``Debarment and Suspension'' (3 CFR 
1986 Comp., p. 189), Executive Order 12689, ``Debarment and Suspension'' 
(3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Pub. 
L. 103-355, 108 Stat. 3327).



Sec. 801.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
Subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970, as supplemented by Subpart B of this 
part);
    (b) Respondent in a Department of Veterans Affairs debarment or 
suspension action;
    (c) Department of Veterans Affairs debarment or suspension official; 
or
    (d) Department of Veterans affairs grants officer, agreements 
officer, or other official authorized to enter into any type of 
nonprocurement transaction that is a covered transaction.



Sec. 801.30  What policies and procedures must I follow?

    For any section of OMB guidance in subparts A through I of 2 CFR 
part 180 that has no corresponding section in this part, Department of 
Veterans Affairs policies and procedures are those in the OMB guidance. 
For any such section where there is a corresponding section in this 
part, the Department of

[[Page 238]]

Veterans Affairs policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, and as supplemented 
by the section in this part with the same section number. The contracts 
that are covered transactions, for example, are specified by Sec. 
180.220 of the OMB guidance (2 CFR 180.220) as supplemented by Sec. 
801.220 in this part (2 CFR 801.220).



                            Subpart A_General



Sec. 801.137  Who in the Department of Veterans Affairs may grant an exception to allow an excluded person to participate in a covered transaction?

    Within the Department of Veterans Affairs, the Secretary of Veterans 
Affairs, the Under Secretary for Health, the Under Secretary for 
Benefits, and the Under Secretary for Memorial Affairs each has the 
authority to grant an exception to allow an excluded person to 
participate in a covered transaction, as provided in the OMB guidance at 
2 CFR 180.135.



                     Subpart B_Covered Transactions



Sec. 801.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    VA does not extend coverage of nonprocurement suspension and 
debarment requirements beyond first-tier procurement contracts under a 
covered nonprocurement transaction, although the OMB guidance at 2 CFR 
180.220(c) allows a Federal agency to do so (also see optional lower 
tier coverage in the figure in the appendix to 2 CFR part 180).



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 801.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180, as supplemented by this subpart.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 801.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180 (as supplemented by subpart C of this part) and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-H [Reserved]



                          Subpart I_Definitions



Sec. 801.930  Debarring official (Department of Veterans Affairs supplement to government-wide definition at 2 CFR 180.930).

    In addition to the debarring official listed at 2 CFR 180.930, the 
debarring official for the Department of Veterans Affairs is:
    (a) For the Veterans Health Administration, the Under Secretary for 
Health;
    (b) For the Veterans Benefits Administration, the Under Secretary 
for Benefits; and
    (c) For the National Cemetery Administration, the Under Secretary 
for Memorial Affairs.



Sec. 801.995  Principal (Department of Veterans Affairs supplement to government-wide definition at 2 CFR 180.995.)

    In addition to the principals identified at 2 CFR 180.995, for the 
Department of Veterans Affairs loan guaranty program, principals 
include, but are not limited to the following:
    (a) Loan officers.
    (b) Loan solicitors.
    (c) Loan processors.
    (d) Loan servicers.
    (e) Loan supervisors.
    (f) Mortgage brokers.

[[Page 239]]

    (g) Office managers.
    (h) Staff appraisers and inspectors.
    (i) Fee Appraisers and inspectors.
    (j) Underwriters.
    (k) Bonding companies.
    (l) Real estate agents and brokers.
    (m) Management and marketing agents.
    (n) Accountants, consultants, investment bankers, architects, 
engineers, attorneys, and others in a business relationship with 
participants in connection with a covered transaction under the 
Department of Veterans Affairs loan guaranty program.
    (o) Contractors involved in the construction, improvement or repair 
of properties financed with Department of Veterans Affairs guaranteed 
loans.
    (p) Closing agents.



Sec. 801.1010  Suspending official (Department of Veterans Affairs supplement to government-wide definition at 2 CFR 180.1010).

    In addition to the suspending official listed at 2 CFR 180.1010, the 
suspending official for the Department of Veterans Affairs is:
    (a) For the Veterans Health Administration, the Under Secretary for 
Health;
    (b) For the Veterans Benefits Administration, the Under Secretary 
for Benefits; and
    (c) For the National Cemetery Administration, the Under Secretary 
for Memorial Affairs.



   Subpart J_Limited Denial of Participation (Department of Veterans 
      Affairs Optional Subpart for OMB Guidance at 2 CFR Part 180).



Sec. 801.1100  General.

    Field facility directors are authorized to order a limited denial of 
participation affecting any participant or contractor and its affiliates 
except lenders and manufactured home manufacturers. In each case, even 
if the offense or violation is of a criminal, fraudulent or other 
serious nature, the decision to order a limited denial of participation 
shall be discretionary and in the best interests of the Government.



Sec. 801.1105  Cause for a limited denial of participation.

    (a) Causes. A limited denial of participation shall be based upon 
adequate evidence of any of the following causes:
    (1) Irregularities in a participant's or contractor's performance in 
the VA loan guaranty program;
    (2) Denial of participation in programs administered by the 
Department of Housing and Urban Development or the Department of 
Agriculture, Rural Housing Service;
    (3) Failure to satisfy contractual obligations or to proceed in 
accordance with contract specifications;
    (4) Failure to proceed in accordance with VA requirements or to 
comply with VA regulations;
    (5) Construction deficiencies deemed by VA to be the participant's 
responsibility;
    (6) Falsely certifying in connection with any VA program, whether or 
not the certification was made directly to VA;
    (7) Commission of an offense or other cause listed in Sec. 180.800;
    (8) Violation of any law, regulation, or procedure relating to the 
application for guaranty, or to the performance of the obligations 
incurred pursuant to a commitment to guaranty;
    (9) Making or procuring to be made any false statement for the 
purpose of influencing in any way an action of the Department.
    (10) Imposition of a limited denial of participation by any other VA 
field facility.
    (b) Indictment. A criminal indictment or information shall 
constitute adequate evidence for the purpose of limited denial of 
participation actions.
    (c) Limited denial of participation. Imposition of a limited denial 
of participation by a VA field facility shall, at the discretion of any 
other VA field facility, constitute adequate evidence for a concurrent 
limited denial of participation. Where such a concurrent limited denial 
of participation is imposed, participation may be restricted on the same 
basis without the need for an additional conference or further hearing.

[[Page 240]]



Sec. 801.1110  Scope and period of a limited denial of participation.

    (a) Scope and period. The scope of a limited denial of participation 
shall be as follows:
    (1) A limited denial of participation extends only to participation 
in the VA Loan Guaranty Program and shall be effective only within the 
geographic jurisdiction of the office or offices imposing it.
    (2) The sanction may be imposed for a period not to exceed 12 months 
except for unresolved construction deficiencies. In cases involving 
construction deficiencies, the builder may be excluded for either a 
period not to exceed 12 months or for an indeterminate period which ends 
when the deficiency has been corrected or otherwise resolved in a manner 
acceptable to VA.
    (b) Effectiveness. The sanction shall be effective immediately upon 
issuance and shall remain effective for the prescribed period. If the 
cause for the limited denial of participation is resolved before the 
expiration of the prescribed period, the official who imposed the 
sanction may terminate it. The imposition of a limited denial of 
participation shall not affect the right of the Department to suspend or 
debar any person under this part.
    (c) Affiliates. An affiliate or organizational element may be 
included in a limited denial of participation solely on the basis of its 
affiliation, and regardless of its knowledge of or participation in the 
acts providing cause for the sanction. The burden of proving that a 
particular affiliate or organizational element is capable of meeting VA 
requirements and is currently a responsible entity and not controlled by 
the primary sanctioned party (or by an entity that itself is controlled 
by the primary sanctioned party) is on the affiliate or organizational 
element.



Sec. 801.1111  Notice.

    (a) Generally. A limited denial of participation shall be initiated 
by advising a participant or contractor, and any specifically named 
affiliate, by certified mail, return receipt requested:
    (1) That the sanction is effective as of the date of the notice;
    (2) Of the reasons for the sanction in terms sufficient to put the 
participant or contractor on notice of the conduct or transaction(s) 
upon which it is based;
    (3) Of the cause(s) relied upon under Sec. 801.1105 for imposing 
the sanction;
    (4) Of the right to request in writing, within 30 days of receipt of 
the notice, a conference on the sanction, and the right to have such 
conference held within 10 business days of receipt of the request;
    (5) Of the potential effect of the sanction and the impact on the 
participant's or contractor's participation in Departmental programs, 
specifying the program(s) involved and the geographical area affected by 
the action.
    (b) Notification of action. After 30 days, if no conference has been 
requested, the official imposing the limited denial of participation 
will notify VA Central Office of the action taken and of the fact that 
no conference has been requested. If a conference is requested within 
the 30-day period, VA Central Office need not be notified unless a 
decision to affirm all or a portion of the remaining period of exclusion 
is issued. VA Central Office will notify all VA field offices of 
sanctions imposed and still in effect under this subpart.



Sec. 801.1112  Conference.

    Upon receipt of a request for a conference, the official imposing 
the sanction shall arrange such a conference with the participant or 
contractor and may designate another official to conduct the conference. 
The participant shall be given the opportunity to be heard within 10 
business days of receipt of the request. This conference precedes, and 
is in addition to, the formal hearing provided if an appeal is taken 
under Sec. 801.1113. Although formal rules of procedure do not apply to 
the conference, the participant or contractor may be represented by 
counsel and may present all relevant information and materials to the 
official or designee. After consideration of the information and 
materials presented, the official shall, in writing, advise the 
participant or contractor of the decision to withdraw, modify or affirm 
the limited denial of participation. If the decision is made to affirm 
all or a portion

[[Page 241]]

of the remaining period of exclusion, the participant shall be advised 
of the right to request a formal hearing in writing within 30 days of 
receipt of the notice of decision. This decision shall be issued 
promptly, but in no event later than 20 days after the conference and 
receipt of materials.



Sec. 801.1113  Appeal.

    Where the decision is made to affirm all or a portion of the 
remaining period of exclusion, any participant desiring an appeal shall 
file a written request for a hearing with the Under Secretary for 
Benefits, Department of Veterans Affairs, 810 Vermont Avenue, NW., 
Washington, DC 20420. This request shall be filed within 30 days of 
receipt of the decision to affirm. If a hearing is requested, it shall 
be held in accordance with the procedures in Sec. Sec. 108.825 through 
108.855. Where a limited denial of participation is followed by a 
suspension or debarment, the limited denial of participation shall be 
superseded and the appeal shall be heard solely as an appeal of the 
suspension or debarment.

[[Page 243]]



                    CHAPTER IX--DEPARTMENT OF ENERGY




  --------------------------------------------------------------------
Part                                                                Page
901             Nonprocurement debarment and suspension.....         245
902             Requirements for drug-free workplace 
                    (financial assistance)..................         247

[[Page 245]]






PART 901_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
901.10 What does this part do?
901.20 Does this part apply to me?
901.30 What policies and procedures must I follow?

                            Subpart A_General

901.137 Who in the Department of Energy may grant an exception to let an 
          excluded person participate in a covered transaction?

                     Subpart B_Covered Transactions

901.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

901.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

901.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-H [Reserved]

                          Subpart I_Definitions

901.930 Debarring official (Department of Energy supplement to 
          government-wide definition at 2 CFR 180.935).
901.950 Federal agency (Department of Energy supplement to government-
          wide definition at 2 CFR 180.910).
901.1010 Suspending official (Department of Energy supplement to 
          government-wide definition at 2 CFR 180.1010).

Subpart J [Reserved]

    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); 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.

    Source: 71 FR 70459, Dec. 5, 2006, unless otherwise noted.



Sec. 901.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the DOE policies and procedures for nonprocurement debarment and 
suspension. It thereby gives regulatory effect for DOE to the OMB 
guidance as supplemented by this part. This part satisfies the 
requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189); Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235); and section 
2455 of the Federal Acquisition Streamlining Act of 1994, Pub. L. 103-
355 (31 U.S.C. 6101 note).



Sec. 901.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970);
    (b) Respondent in a DOE suspension or debarment action;
    (c) DOE debarment or suspension official; and
    (d) DOE grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.



Sec. 901.30  What policies and procedures must I follow?

    The DOE policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180 and any supplemental 
policies and procedures set forth in this part.

[[Page 246]]



                            Subpart A_General



Sec. 901.137  Who in the Department of Energy may grant an exception to let an excluded person participate in a covered transaction?

    The Director, Office of Procurement and Assistance Management, DOE, 
for DOE actions, and the Director, Office of Acquisition and Supply 
Management, NNSA, for NNSA actions, may grant an exception permitting an 
excluded person to participate in a particular covered transaction. If 
the Director, Office of Procurement and Assistance Management, DOE, for 
DOE actions, and Director, Office of Acquisition and Supply Management, 
NNSA, for NNSA actions, grants an exception, the exception must be in 
writing and state the reason(s) for deviating from the government-wide 
policy in Executive Order 12549.



                     Subpart B_Covered Transactions



Sec. 901.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR180.220(c) allows a Federal agency 
to do so (also see optional lower tier coverage in the figure in the 
appendix to 2 CFR part 180), DOE does not extend coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts under a covered nonprocurement transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 901.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You, as a participant, must include a term or condition in lower-
tier transactions requiring lower-tier participants to comply with 
subpart C of the OMB guidance in 2 CFR part 180, as supplemented by this 
subpart.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 901.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-H [Reserved]



                          Subpart I_Definitions



Sec. 901.930  Debarring official (Department of Energy supplement to government-wide definition at 2 CFR 180.930).

    The Debarring Official for the Department of Energy, exclusive of 
NNSA, is the Director, Office of Procurement and Assistance Management, 
DOE. The Debarring Official for NNSA is the Director, Office of 
Acquisition and Supply Management, NNSA.



Sec. 901.950  Federal agency (Department of Energy supplement to government-wide definition at 2 CFR 180.950).

    DOE means the U.S. Department of Energy, including the NNSA.
    NNSA means the National Nuclear Security Administration.



Sec. 901.1010  Suspending official (Department of Energy supplement to government-wide definition at 2 CFR 180.1010).

    The suspending official for the Department of Energy, exclusive of 
NNSA, is the Director, Office of Procurement and Assistance Management, 
DOE. The suspending official for NNSA is the Director, Office of 
Acquisition and Supply Management, NNSA.

Subpart J [Reserved]

[[Page 247]]



PART 902_REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE)--Table of Contents



Sec.
902.10 What does this part do?
902.20 Does this part apply to me?
902.30 What policies and procedures must I follow?

Subpart A--Purpose and Coverage [Reserved]

      Subpart B_Requirements for Recipients Other Than Individuals

902.225 Whom in the DOE does a recipient other than an individual notify 
          about a criminal drug conviction?

        Subpart C_Requirements for Recipients Who Are Individuals

902.300 Whom in the DOE does a recipient who is an individual notify 
          about a criminal drug conviction?

         Subpart D_Responsibilities of Agency Awarding Officials

902.400 What method do I use as an agency awarding official to obtain a 
          recipient's agreement to comply with the OMB guidance?

           Subpart E_Violations of this Part and Consequences

902.500 Who in the DOE determines that a recipient other than an 
          individual violated the requirements of this part?
902.505 Who in the DOE determines that a recipient who is an individual 
          violated the requirements of this part?

                          Subpart F_Definitions

902.605 Award (DOE supplement to Governmentwide definition at 2 CFR 
          182.605).
902.645 Federal agency or agency.

    Authority: 41 U.S.C. 701; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et 
seq.

    Source: 75 FR 39444, July 9, 2010, unless otherwise noted.



Sec. 902.10  What does this part do?

    This part requires that the award and administration of DOE grants 
and cooperative agreements comply with Office of Management and Budget 
(OMB) guidance implementing the portion of the Drug-Free Workplace Act 
of 1988 (41 U.S.C. 701-707, as amended, hereafter referred to as ``the 
Act'') that applies to grants. It thereby--
    (a) Gives regulatory effect to the OMB guidance (subparts A through 
F of 2 CFR part 182) for the DOE's grants and cooperative agreements; 
and
    (b) Establishes DOE policies and procedures for compliance with the 
Act that are the same as those of other Federal agencies, in conformance 
with the requirement in 41 U.S.C. 705 for Governmentwide implementing 
regulations.



Sec. 902.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through F of 2 CFR part 182 (see table at 2 CFR 
182.115(b)) apply to you if you are a--
    (a) Recipient of a DOE grant or cooperative agreement; or
    (b) DOE awarding official.



Sec. 902.30  What policies and procedures must I follow?

    (a) General. You must follow the policies and procedures specified 
in applicable sections of the OMB guidance in subparts A through F of 2 
CFR part 182, as implemented by this part.
    (b) Specific sections of OMB guidance that this part supplements. In 
implementing the OMB guidance in 2 CFR part 182, this part supplements 
four sections of the guidance, as shown in the following table. For each 
of those sections, you must follow the policies and procedures in the 
OMB guidance, as supplemented by this part.

----------------------------------------------------------------------------------------------------------------
                                                  Section in
                                                   this part
            Section of OMB guidance                  where             What the supplementation clarifies
                                                 supplemented
----------------------------------------------------------------------------------------------------------------
(1) 2 CFR 182.225(a)..........................  Sec.  902.225  Whom in the DOE a recipient other than an
                                                                 individual must notify if an employee is
                                                                 convicted for a violation of a criminal drug
                                                                 statute in the workplace.
(2) 2 CFR 182.300(b)..........................  Sec.  902.300  Whom in the DOE a recipient who is an individual
                                                                 must notify if he or she is convicted of a
                                                                 criminal drug offense resulting from a
                                                                 violation occurring during the conduct of any
                                                                 award activity.

[[Page 248]]

 
(3) 2 CFR 182.500.............................  Sec.  902.500  Who in the DOE is authorized to determine that a
                                                                 recipient other than an individual is in
                                                                 violation of the requirements of 2 CFR part
                                                                 182, as implemented by this part.
(4) 2 CFR 182.505.............................  Sec.  902.505  Who in the DOE is authorized to determine that a
                                                                 recipient who is an individual is in violation
                                                                 of the requirements of 2 CFR part 182, as
                                                                 implemented by this part.
(5) 2 CFR 182.605.............................  Sec.  902.605  Definition of ``Award''.
(6) 2 CFR 182.645.............................  Sec.  902.645  Definition of ``Federal agency or agency''.
----------------------------------------------------------------------------------------------------------------

    (c) Sections of the OMB guidance that this part does not supplement. 
For any section of OMB guidance in subparts A through F of 2 CFR part 
182 that is not listed in paragraph (b) of this section, DOE policies 
and procedures are the same as those in the OMB guidance.

Subpart A--Purpose and Coverage [Reserved]



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 902.225  Whom in the DOE does a recipient other than an individual notify about a criminal drug conviction?

    A recipient other than an individual that is required under 2 CFR 
182.225(a) to notify Federal agencies about an employee's conviction for 
a criminal drug offense must notify each DOE office from which it 
currently has an award.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 902.300  Whom in the DOE does a recipient who is an individual notify about a criminal drug conviction?

    A recipient who is an individual and is required under 2 CFR 
182.300(b) to notify Federal agencies about a conviction for a criminal 
drug offense must notify each DOE office from which it currently has an 
award.



         Subpart D_Responsibilities of Agency Awarding Officials



Sec. 902.400  What method do I use as an agency awarding official to obtain a recipient's agreement to comply with the OMB guidance?

    To obtain a recipient's agreement to comply with applicable 
requirements in the OMB guidance at 2 CFR part 182, you must include the 
following term or condition in the award:
    Drug-free workplace. You as the recipient must comply with drug-free 
workplace requirements in Subpart B (or Subpart C, if the recipient is 
an individual) of Part 902, which adopts the Governmentwide 
implementation (2 CFR part 182) of sec. 5152-5158 of the Drug-Free 
Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 
701-707).



           Subpart E_Violations of this Part and Consequences



Sec. 902.500  Who in the DOE determines that a recipient other than an individual violated the requirements of this part?

    The Secretary of the Department of Energy and the Secretary's 
designee or designees are authorized to make the determinations under 2 
CFR 182.500 for DOE, including NNSA.



Sec. 902.505  Who in the DOE determines that a recipient who is an individual violated the requirements of this part?

    The Secretary of the Department of Energy and the Secretary's 
designee or designees are authorized to make the determinations under 2 
CFR 182.500 for DOE, including NNSA.

[[Page 249]]



                          Subpart F_Definitions



Sec. 902.605  Award (DOE supplement to Governmentwide definition at 2 CFR 182.605).

    The term award also includes Technology Investment Agreements (TIA). 
A TIA is a special type of assistance instrument used to increase the 
involvement of commercial firms in the Department's RD&D programs. A TIA 
may be either a type of cooperative agreement or a type of assistance 
transaction other than a cooperative agreement, depending on the 
intellectual property provisions. A TIA may be either expenditure based 
or fixed support.



Sec. 902.645  Federal agency or agency.

    Department of Energy means the U.S. Department of Energy (DOE), 
including the National Nuclear Security Administration (NNSA).

[[Page 251]]



                    CHAPTER XI--DEPARTMENT OF DEFENSE




  --------------------------------------------------------------------
Part                                                                Page
1125            Nonprocurement debarment and suspension.....         253

[[Page 253]]



PART 1125_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
1125.10 What does this part do?
1125.20 Does this part implement the OMB guidance in 2 CFR part 180 for 
          all DoD nonprocurement transactions?
1125.30 Does this part apply to me?
1125.40 What policies and procedures must I follow?

                            Subpart A_General

1125.137 Who in the Department of Defense may grant an exception to let 
          an excluded person participate in a covered transaction?

                     Subpart B_Covered Transactions

1125.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

1125.332 What method must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

   Subpart D_Responsibilities of DoD Officials Regarding Transactions

1125.425 When do I check to see if a person is excluded or disqualified?
1125.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-H [Reserved]

                          Subpart I_Definitions

1125.930 Debarring official (DoD supplement to Governmentwide definition 
          at 2 CFR 180.930).
1125.937 DoD Component.
1125.1010 Suspending official (DoD supplement to Governmentwide 
          definition at 2 CFR 180.1010).

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 5 U.S.C. 
301 and 10 U.S.C. 113.

    Source: 72 FR 34984, June 26, 2007, unless otherwise noted.



Sec. 1125.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Department of Defense (DoD) policies and procedures for 
nonprocurement debarment and suspension. It thereby gives regulatory 
effect for the Department of Defense to the OMB guidance as supplemented 
by this part. This part satisfies the requirements in section 3 of 
Executive Order 12549, ``Debarment and Suspension'' (3 CFR 1986 Comp., 
p. 189), Executive Order 12689, ``Debarment and Suspension'' (3 CFR 1989 
Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Public Law 103-
355, 108 Stat. 3327).



Sec. 1125.20  Does this part implement the OMB guidance in 2 CFR part 180 for all DoD nonprocurement transactions?

    This part implements the OMB guidelines in 2 CFR part 180 for most 
DoD nonprocurement transactions. However, it does not implement the 
guidelines as they apply to prototype projects under the authority of 
Section 845 of the National Defense Authorization Act for Fiscal Year 
1994 (Pub. L. 103-160), as amended. The Director of Defense Procurement 
and Acquisition Policy maintains a DoD issuance separate from this part 
that addresses section 845 transactions.



Sec. 1125.30  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970, as supplemented by subpart B of this 
part), other than a section 845 transaction described in Sec. 1125.20;
    (b) Respondent in a DoD Component's nonprocurement suspension or 
debarment action;
    (c) DoD Component's debarment or suspension official; or
    (d) DoD Component's grants officer, agreements officer, or other 
official authorized to enter into a nonprocurement transaction that is a 
covered transaction.

[[Page 254]]



Sec. 1125.40  What policies and procedures must I follow?

    (a) General. You must follow the policies and procedures specified 
in applicable sections of the OMB guidance in subparts A through I of 2 
CFR part 180, as implemented by this part.
    (b) Specific sections of OMB guidance that this part supplements. In 
implementing the OMB guidance in 2 CFR part 180, this part supplements 
eight sections of the guidance, as shown in the following table. For 
each of those sections, you must follow the policies and procedures in 
the OMB guidance, as supplemented by this part.

------------------------------------------------------------------------
                                   Section in
                                    this part            What the
    Section of OMB guidance           where          supplementation
                                  supplemented          clarifies
------------------------------------------------------------------------
(1) 2 CFR 180.135..............            Sec. Who in DoD may grant an
                                       1125.137   exception for an
                                                  excluded person to
                                                  participate in a
                                                  covered transaction.
(2) 2 CFR 180.220..............            Sec. Which lower-tier
                                       1125.220   contracts under a
                                                  nonprocurement
                                                  transaction are
                                                  covered transactions.
(3) 2 CFR 180.330..............            Sec. What method a
                                       1125.332   participant must use
                                                  to communicate
                                                  requirements to a
                                                  lower-tier
                                                  participant.
(4) 2 CFR 180.425..............            Sec. When a DoD awarding
                                       1125.425   official must check to
                                                  see if a person is
                                                  excluded or
                                                  disqualified.
(5) 2 CFR 180.435..............            Sec. What method a DoD
                                       1125.437   official must use to
                                                  communicate
                                                  requirements to a
                                                  participant.
(6) 2 CFR 180.930..............            Sec. Which DoD officials are
                                       1125.930   debarring officials.
(7) 2 CFR 180.1010.............            Sec. Which DoD officials are
                                      1125.1010   suspending officials.
------------------------------------------------------------------------

    (c) Sections of the OMB guidance that this part does not supplement. 
For any section of OMB guidance in subparts A through I of 2 CFR 180 
that is not listed in paragraph (b) of this section, DoD policies and 
procedures are the same as those in the OMB guidance.



                            Subpart A_General



Sec. 1125.137  Who in the Department of Defense may grant an exception to let an excluded person participate in a covered transaction?

    Within the Department of Defense, the Secretary of Defense, 
Secretary of a Military Department, Head of a Defense Agency, Head of 
the Office of Economic Adjustment, and Head of the Special Operations 
Command have the authority to grant an exception to let an excluded 
person participate in a covered transaction, as provided in the OMB 
guidance at 2 CFR 180.135.



                     Subpart B_Covered Transactions



Sec. 1125.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see optional lower tier coverage in the figure in 
the appendix to 2 CFR part 180), the Department of Defense does not 
extend coverage of nonprocurement suspension and debarment requirements 
beyond first-tier procurement contracts under a covered nonprocurement 
transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 1125.332  What method must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant in a covered transaction must include a term or 
condition in any lower-tier covered transaction into which you enter, to 
require the participant of that transaction to--
    (a) Comply with subpart C of the OMB guidance in 2 CFR part 180; and
    (b) Include a similar term or condition in any covered transaction 
into which it enters at the next lower tier.



   Subpart D_Responsibilities of DoD Officials Regarding Transactions



Sec. 1125.425  When do I check to see if a person is excluded or disqualified?

    In addition to the four instances identified in the OMB guidance at 
2

[[Page 255]]

CFR 180.425, you as a DoD Component official must check to see if a 
person is excluded or disqualified before you obligate additional 
funding (e.g., through an incremental funding action) for a pre-existing 
grant or cooperative agreement with an institution of higher education, 
as provided in 32 CFR 22.520(e)(5).



Sec. 1125.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    You as a DoD Component official must include a term or condition in 
each covered transaction into which you enter, to communicate to the 
participant the requirements to--
    (a) Comply with subpart C of 2 CFR part 180, as supplemented by 
subpart C of this part; and
    (b) Include a similar term or condition in any lower-tier covered 
transactions into which the participant enters.

Subparts E-H [Reserved]



                          Subpart I_Definitions



Sec. 1125.930  Debarring official (DoD supplement to Governmentwide definition at 2 CFR 180.930).

    DoD Components' debarring officials for nonprocurement transactions 
are the same officials identified in 48 CFR part 209, subpart 209.4, as 
debarring officials for procurement contracts.



Sec. 1125.937  DoD Component.

    In this part, DoD Component means the Office of the Secretary of 
Defense, a Military Department, a Defense Agency, a DoD Field Activity, 
or any other organizational entity of the Department of Defense that is 
authorized to award or administer grants, cooperative agreements, or 
other nonprocurement transactions.



Sec. 1125.1010  Suspending official (DoD supplement to Governmentwide definition at 2 CFR 180.1010).

    DoD Components' suspending officials for nonprocurement transactions 
are the same officials identified in 48 CFR part 209, subpart 209.4, as 
suspending officials for procurement contracts.

[[Page 257]]



                CHAPTER XII--DEPARTMENT OF TRANSPORTATION




  --------------------------------------------------------------------
Part                                                                Page
1200            Nonprocurement suspension and debarment.....         259

[[Page 259]]



PART 1200_NONPROCUREMENT SUSPENSION AND DEBARMENT--Table of Contents



Sec.
1200.10 What does this part do?
1200.20 Does this part apply to me?
1200.30 What policies and procedures must I follow?

                            Subpart A_General

1200.137 Who in the Department of Transportation may grant an exception 
          to let an excluded person participate in a covered 
          transaction?

                     Subpart B_Covered Transactions

1200.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

1200.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

1200.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-J [Reserved]

    Authority: 49 U.S.C. 322; Sec. 2455, Public Law 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).

    Source: 73 FR 24140, May 2, 2008, unless otherwise noted.



Sec. 1200.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Department of Transportation policies and procedures for 
nonprocurement suspension and debarment. It thereby gives regulatory 
effect for the Department of Transportation to the OMB guidance as 
supplemented by this part. This part satisfies the requirements in 
section 3 of Executive Order 12549, ``Supension and Debarment'' (3 CFR 
1986 Comp., p. 189), Executive Order 12689, ``Suspension and Debarment'' 
(3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Public 
Law 103-355, 108 Stat. 3327).



Sec. 1200.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970;
    (b) Respondent in a Department of Transportation suspension or 
debarment action;
    (c) Department of Transportation debarment or suspension official;
    (d) Department of Transportation grants officer, agreements officer, 
or other official authorized to enter into any type of nonprocurement 
transaction that is a covered transaction.



Sec. 1200.30  What policies and procedures must I follow?

    The Department of Transportation policies and procedures that you 
must follow are the policies and procedures specified in each applicable 
section of the OMB guidance in subparts A through I of 2 CFR part 180, 
as that section is supplemented by the section in this part with the 
same section number. The contracts that are covered transactions, for 
example, are specified by section 220 of the OMB guidance (i.e., 2 CFR 
180.220), as supplemented by section 220 in this part (i.e., Sec. 
1200.220). For any section of OMB guidance in subparts A through I of 2 
CFR 180 that has no corresponding section in this part, Department of 
Transportation policies and procedures are those in the OMB guidance.



                            Subpart A_General



Sec. 1200.137  Who in the Department of Transportation may grant an exception to let an excluded person participate in a covered transaction?

    Within the Department of Transportation, Office of the Secretary, 
the Secretary or an official designated by the

[[Page 260]]

Secretary may grant an exception permitting an excluded person to 
participate in a particular covered transaction. Within an Operating 
Administration of the Department of Transportation, the head of the 
operating administration may grant an exception permitting an excluded 
person to participate in a particular covered transaction. The head of 
an operating administration may delegate this function and authorize 
successive delegations.



                     Subpart B_Covered Transactions



Sec. 1200.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    In addition to the contracts covered under 2 CFR 180.220(b) of the 
OMB guidance, this part applies to any contract, regardless of tier, 
that is awarded by a contractor, subcontractor, supplier, consultant, or 
its agent or representative in any transaction, if the contract is to be 
funded or provided by the Department of Transportation under a covered 
nonprocurement transaction and the amount of the contract is expected to 
equal or exceed $25,000. This extends the coverage of the Department of 
Transportation nonprocurement suspension and debarment requirements to 
all lower tiers of subcontracts under covered nonprocurement 
transactions, as permitted under the OMB guidance at 2 CFR 180.220(c) 
(see optional lower-tier coverage in the figure in the appendix to 2 CFR 
part 180).



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 1200.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180, as supplemented by this subpart.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 1200.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180 and requires the participant to include a similar term or 
condition in lower-tier covered transactions.

Subparts E-J [Reserved]

[[Page 261]]



                  CHAPTER XIII--DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------
Part                                                                Page
1326            Nonprocurement debarment and suspension.....         263

[[Page 263]]



PART 1326_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
1326.10 What does this part do?
1326.20 Does this part apply to me?
1326.30 What policies and procedures must I follow?

                            Subpart A_General

1326.137 Who in the Department of Commerce may grant an exception to let 
          an excluded person participate in a covered transaction?

                     Subpart B_Covered Transactions

1326.215 Which nonprocurement transactions, in addition to those listed 
          in 2 CFR 180.215, are not covered transactions?
1326.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

1326.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

1326.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-H [Reserved]

                          Subpart I_Definitions

1326.970 Nonprocurement transaction (Department of Commerce supplement 
          to government-wide definition at 2 CFR 180.970).

Subpart J [Reserved]

    Authority: 5 U.S.C. 301; Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; 
E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 
235.

    Source: 71 FR 76574, Dec. 21, 2006, unless otherwise noted.



Sec. 1326.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Department of Commerce policies and procedures for nonprocurement 
debarment and suspension. It thereby gives regulatory effect to the OMB 
guidance as supplemented by this part. This part satisfies the 
requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189), Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 
6101 note (Section 2455, Public Law 103-355, 108 Stat. 3327).



Sec. 1326.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970, as supplemented by subpart B and Sec. 
1326.970 of this part).
    (b) Respondent in a Department of Commerce suspension or debarment 
action.
    (c) Department of Commerce debarment or suspension official;
    (d) Department of Commerce grants officer, agreements officer, or 
other official authorized to enter into any type of nonprocurement 
transaction that is a covered transaction;



Sec. 1326.30  What policies and procedures must I follow?

    The Department of Commerce policies and procedures that you must 
follow are the policies and procedures specified in each applicable 
section of the OMB guidance in subparts A through I of 2 CFR part 180, 
as that section is supplemented by the section in this part with the 
same section number. The contracts that are covered transactions, for 
example, are specified by section 220 of the OMB guidance (i.e., 2 CFR 
180.220) as supplemented by section 220 in this part (i.e., Sec. 
1326.220). For any section of OMB guidance in subparts A through I of 2 
CFR 180 that has no corresponding section in this part, Department of 
Commerce policies and procedures are those in the OMB guidance.

[[Page 264]]



                            Subpart A_General



Sec. 1326.137  Who in the Department of Commerce may grant an exception to let an excluded person participate in a covered transaction?

    Within the Department of Commerce, the Secretary of Commerce or 
designee has the authority to grant an exception to let an excluded 
person participate in a covered transaction, as provided in the OMB 
guidance at 2 CFR 180.135.



                     Subpart B_Covered Transactions



Sec. 1326.215  Which nonprocurement transactions, in addition to those listed in 2 CFR 180.215, are not covered transactions?

    (a) For purposes of the Department of Commerce, a transaction that 
the Department needs to respond to a national or agency-recognized 
emergency or disaster includes the Fisherman's Contingency Fund.
    (b) For purposes of the Department of Commerce, an incidental 
benefit that results from ordinary governmental operations includes:
    (1) Export Promotion, Trade Information and Counseling, and Trade 
policy.
    (2) Geodetic Surveys and Services (Specialized Services).
    (3) Fishery Products Inspection Certification.
    (4) Standard Reference Materials.
    (5) Calibration, Measurement, and Testing.
    (6) Critically Evaluated Data (Standard Reference Data).
    (7) Phoenix Data System.
    (8) The sale or provision of products, information, and services to 
the general public.
    (c) For purposes of the Department of Commerce, any other 
transaction if the application of an exclusion to the transaction is 
prohibited by law includes:
    (1) The Administration of the Anti-dumping and Countervailing Duty 
Statutes.
    (2) The export Trading Company Act Certification of Review Program.
    (3) Trade Adjustment Assistance Program Certification.
    (4) Foreign Trade Zones Act of 1934, as amended.
    (5) Statutory Import Program.



Sec. 1326.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    In addition to the contracts covered under 2 CFR 180.220(b) of the 
OMB guidance, this part applies to a subcontract that is awarded by a 
participant in a procurement transaction covered under 2 CFR 180.220(a), 
if the amount of the subcontract exceeds or is expected to exceed 
$25,000. This extends the coverage of the Department of Commerce 
nonprocurement suspension and debarment requirements to one additional 
tier of contracts under covered nonprocurement transactions, as 
permitted under the OMB guidance at 2 CFR 180.220(c) (see optional lower 
tier coverage in the figure in the appendix to 2 CFR part 180).



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 1326.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR Part 180, as supplemented by this subpart.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 1326.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-H [Reserved]

[[Page 265]]



                          Subpart I_Definitions



Sec. 1326.970  Nonprocurement transaction (Department of Commerce supplement to government-wide definition at 2 CFR 180.970).

    For purposes of the Department of Commerce, nonprocurement 
transaction includes the following:
    (a) Joint project Agreements under 15 U.S.C. 1525.
    (b) Cooperative research and development agreements.
    (c) Joint statistical agreements.
    (d) Patent licenses under 35 U.S.C. 207.
    (e) NTIS joint ventures, 15 U.S.C. 3704b.

Subpart J [Reserved]

[[Page 267]]



                 CHAPTER XIV--DEPARTMENT OF THE INTERIOR




  --------------------------------------------------------------------
Part                                                                Page
1400            Nonprocurement debarment and suspension.....         269
1401            Requirements for drug-free workplace 
                    (financial assistance) (Eff. 1-21-11)...         271

[[Page 269]]



PART 1400_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
1400.10 What does this part do?
1400.20 When does this part apply to me?
1400.30 What policies and procedures must I follow?

                            Subpart A_General

1400.137 Who in the Department of the Interior may grant an exception to 
          let an excluded person participate in a covered transaction?

                     Subpart B_Covered Transactions

1400.215 Which nonprocurement transactions, in addition to those listed 
          in 2 CFR 180.215, are not covered transactions?
1400.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

1400.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

1400.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-H [Reserved]

                          Subpart I Definitions

1400.930 Debarring official (Department of the Interior supplement to 
          the definition at 2 CFR 180.930).
1400.970 Nonprocurement transaction (Department of the Interior 
          supplement to the definition at 2 CFR 180.970).
1400.1010 Suspending official (Department of the Interior supplement to 
          the definition at 2 CFR 180.930).

    Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 
CFR, 1989 Comp., p. 235); sec. 2455 Pub. L. 103-355, 108 Stat. 3327 (31 
U.S.C. 6101 note); 5 U.S.C. 301.

    Source: 72 FR 33384, June 18, 2007, unless otherwise noted.



Sec. 1400.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Department of the Interior policies and procedures for 
nonprocurement debarment and suspension. It thereby gives regulatory 
effect to the OMB guidance as supplemented by this part. This part 
satisfies the requirements in section 3 of Executive Order 12549, 
``Debarment and Suspension'' (3 CFR 1986 Comp., p. 189), Executive Order 
12689, ``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235) and 31 
U.S.C. 6101 note (Section 2455, Pub. L. 103-355, 108 Stat. 3327).



Sec. 1400.20  When does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970, as supplemented by subpart B and Sec. 
1400.970);
    (b) Respondent in a Department of the Interior suspension or 
debarment action;
    (c) Department of the Interior debarment or suspension official, 
i.e., the Director, Office of Acquisition and Property Management; or
    (d) Department of the Interior grants officer, agreements officer, 
or other official authorized to enter into any type of nonprocurement 
transaction that is a covered transaction.



Sec. 1400.30  What policies and procedures must I follow?

    (a) The Department of the Interior policies and procedures that you 
must follow are specified in:
    (1) Each applicable section of the OMB guidance in subparts A 
through I of 2 CFR part 180; and
    (2) The supplement to each section of the OMB guidance that is found 
in this part under the same section number. (The contracts that are 
covered transactions, for example, are specified by section 220 of the 
OMB guidance (i.e., 2 CFR 180.220) as supplemented by section 220 in 
this part (i.e., Sec. 1400.220)).
    (b) For any section of OMB guidance in subparts A through I of 2 CFR 
part

[[Page 270]]

180 that has no corresponding section in this part, Department of the 
Interior policies and procedures are those in the OMB guidance.



                            Subpart A_General



Sec. 1400.137  Who in the Department of the Interior may grant an exception to let an excluded person participate in a covered transaction?

    Within the Department of the Interior, the Director, Office of 
Acquisition and Property Management has the authority to grant an 
exception to let an excluded person participate in a covered 
transaction, as provided in the OMB guidance at 2 CFR 180.135.



                     Subpart B_Covered Transactions



Sec. 1400.215  Which nonprocurement transactions, in addition to those listed in 2 CFR 180.215, are not covered transactions?

    (a) Transactions entered into pursuant to Public Law 93-638, 88 
Stat. 2203.
    (b) Under natural resource management programs, permits, licenses, 
exchanges, and other acquisitions of real property, rights-of-way, and 
easements.
    (c) Transactions concerning mineral patent claims entered into 
pursuant to 30 U.S.C. 22 et seq.; and
    (d) Water service contracts and repayments entered into pursuant to 
43 U.S.C. 485.



Sec. 1400.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see optional lower tier coverage in the figure in 
the appendix to 2 CFR part 180), the Department of the Interior does not 
extend coverage of nonprocurement suspension and debarment requirements 
beyond first-tier procurement contracts under a covered nonprocurement 
transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 1400.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 1400.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-H [Reserved]



                          Subpart I_Definitions



Sec. 1400.930  Debarring official (Department of the Interior supplement to the definition at 2 CFR 180.930).

    The Debarring Official for the Department of the Interior is the 
Director, Office of Acquisition and Property Management.



Sec. 1400.970  Nonprocurement transaction (Department of the Interior supplement to the definition at 2 CFR 180.970).

    In addition to those listed in 2 CFR 180.970, the Department of the 
Interior includes the following as nonprocurement transactions:
    (a) Federal acquisition of a leasehold interest or any other 
interest in real property;
    (b) Concession contracts;

[[Page 271]]

    (c) Disposition of Federal real and personal property and natural 
resources; and
    (d) Any other nonprocurement transactions between the Department and 
a person.



Sec. 1400.1010  Suspending official (Department of the Interior supplement to the definition at 2 CFR 180.930).

    The Suspending Official for the Department of the Interior is the 
Director, Office of Acquisition and Property Management.

Subpart J [Reserved]



PART 1401_REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE) (Eff. 1-21-2011)--Table of Contents



                     Subpart A_Purpose and Coverage

Sec.
1401.100 What does this part do?
1401.105 Does this part apply to me?
1401.110 What policies and procedures must I follow?
1401.115 Are any of my Federal assistance awards exempt from this part?
1401.120 Does this part affect the Federal contracts that I receive?

                          Subpart B_Definitions

1401.205 Award.
1401.210 Controlled substance.
1401.215 Conviction.
1401.220 Cooperative agreement.
1401.225 Criminal drug statue.
1401.230 Debarment.
1401.235 Drug-free workplace.
1401.240 Employee.
1401.245 Federal agency or agency.
1401.250 Grant.
1401.255 Individual.
1401.260 Recipient.
1401.265 State.
1401.270 Suspension.

      Subpart C_Requirements for Recipients Other Than Individuals

1401.300 What must I do to comply with this part?
1401.305 What must I include in my drug-free workplace statement?
1401.310 To whom must I distribute my drug-free workplace statement?
1401.315 What must I include in my drug-free awareness program?
1401.320 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
1401.325 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
1401.330 How and when must I identify workplaces?
1401.335 Whom in the DOI does a recipient other than an individual 
          notify about a criminal drug conviction?

        Subpart D_Requirements for Recipients Who Are Individuals

1401.400 What must I do to comply with this part if I am an individual 
          recipient?
1401.401 Whom in the DOI does a recipient who is an individual notify 
          about a criminal drug conviction?

   Subpart E_Responsibilities of Department of the Interior Awarding 
                                Officials

1401.500 What are my responsibilities as a DOI awarding official?

           Subpart F_Violations of this Part and Consequences

1401.600 How are violations of this part determined for recipients other 
          than individuals?
1401.605 How are violations of this part determined for recipients who 
          are individuals?
1401.610 What actions will the Federal Government take against a 
          recipient determined to have violated this part?
1401.615 Are there any exceptions to those actions?

    Authority: 5 U.S.C. 301; 31 U.S.C. 6101 note, 7501; 41 U.S.C. 252a; 
41 U.S.C. 701-707.

    Source: 75 FR 71008, Nov. 22, 2010, unless otherwise noted.

    Effective Date Note: At 75 FR 71008, Nov. 22, 2010, part 1401 was 
added, effective Jan. 21, 2011.



                     Subpart A_Purpose and Coverage



Sec. 1401.100  What does this part do?

    This part requires that the award and administration of the DOI 
grants and cooperative agreements comply with Office of Management and 
Budget (OMB) guidance implementing the portion of the Drug-Free 
Workplace Act of 1988, 41 U.S.C. 701-707, as amended (hereinafter, ``the 
Act'') that applies to grants. It thereby--

[[Page 272]]

    (a) Gives regulatory effect to the OMB guidance (subparts A through 
F of 2 CFR part 182) for DOI's grants and cooperative agreements; and
    (b) Establishes DOI policies and procedures for compliance with the 
Act that are the same as those of other Federal agencies, in conformance 
with the requirement in 41 U.S.C. 705 for government-wide implementing 
regulations.



Sec. 1401.105  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through F of 2 CFR part 182 apply if you are--
    (a) A recipient of an assistance award from the Department of the 
Interior; or
    (b) The Department of the Interior awarding official. The following 
table (will be incorporated into 2 CFR part 182) shows the subparts that 
apply to you:

------------------------------------------------------------------------
                If you are                          See subparts
------------------------------------------------------------------------
(1) A recipient who is not an individual.  A, C and F.
(2) A recipient who is an individual.....  A, D and F.
(3) A Department of the Interior awarding  A, E and F.
 official.
------------------------------------------------------------------------



Sec. 1401.110  What policies and procedures must I follow?

    (a) General. You must follow the policies and procedures specified 
in applicable sections of the OMB guidance in subparts A through F of 2 
CFR part 182, as implemented by this part.
    (b) In implementing OMB guidance in 2 CFR part 182, this part 
supplements four sections of the guidance, as shown in the following 
table. For each of those sections, you must follow the policies and 
procedures set forth in the OMB guidance, as supplemented by this part.

------------------------------------------------------------------------
                                 Section in this         What the
    Section of OMB guidance        part where         supplementation
                                  supplemented           clarifies
------------------------------------------------------------------------
(1) 2 CFR 182.225(a)..........   Sec.  1401.335  Whom in the DOI a
                                                   recipient other than
                                                   an individual must
                                                   notify if an employee
                                                   is convicted for a
                                                   violation of a
                                                   criminal drug statute
                                                   in the workplace.
(2) 2 CFR 182.300(b)..........   Sec.  1401.401  Whom in the DOI a
                                                   recipient who is an
                                                   individual must
                                                   notify if he or she
                                                   is convicted of a
                                                   criminal drug offense
                                                   resulting from a
                                                   violation occurring
                                                   during the conduct of
                                                   any award activity.
(3) 2 CFR 182.500.............   Sec.  1401.600  Who in the DOI is
                                                   authorized to
                                                   determine that a
                                                   recipient other than
                                                   an individual is in
                                                   violation of the
                                                   requirements of 2 CFR
                                                   Part 182, as
                                                   implemented by this
                                                   part.
(4) 2 CFR 182.505.............   Sec.  1401.605  Who in the DOI is
                                                   authorized to
                                                   determine that a
                                                   recipient who is an
                                                   individual is in
                                                   violation of the
                                                   requirements of 2 CFR
                                                   Part 182, as
                                                   implemented by this
                                                   part.
------------------------------------------------------------------------

     (c) Sections of the OMB guidance that this part does not 
supplement. For any section of OMB guidance in subparts A through F of 2 
CFR part 182 that is not listed in paragraph (b) of this section, DOI 
policies and procedures are the same as those in the OMB guidance.



Sec. 1401.115  Are any of my Federal assistance awards exempt from this part?

    This part does not apply to any award if the Director, Office of 
Acquisition and Property Management (PAM), determines that the 
application of this part would be inconsistent with the international 
obligations of the United States or the laws or regulations of a foreign 
government.



Sec. 1401.120  Does this part affect the Federal contracts that I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec. 1401.610(c). However, this part does not directly 
apply to procurement contracts. The portion of the Drug-Free Workplace 
Act of 1988 that applies to Federal procurement contracts is carried out 
through the Federal Acquisition Regulation in 48 CFR part 23, subpart 
23.5.

[[Page 273]]



                          Subpart F_Definitions



Sec. 1401.205  Award.

    Award means an award of financial assistance by DOI or other Federal 
agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Departmental rules at 
43 CFR part 12, subpart C, ``Uniform Administrative Requirements for 
Grants and Cooperative Agreements to State and Local Governments.''
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).



Sec. 1401.210  Controlled substance.

    Controlled substance means any controlled substance identified in 
schedules I through V of the Controlled Substances Act, 21 U.S.C. 812, 
and as further defined by regulations at 21 CFR 1308.11 through 1308.15.



Sec. 1401.215  Conviction.

    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes.



Sec. 1401.220  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in section 1401.250), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.



Sec. 1401.225  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.



Sec. 1401.230  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered non-procurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and 2 CFR part 180.



Sec. 1401.235  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec. 1401.240  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the payroll; 
or employees of sub-recipients or subcontractors in covered workplaces).

[[Page 274]]



Sec. 1401.245  Federal agency or agency.

    Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency.



Sec. 1401.250  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship whereby--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec. 1401.255  Individual.

    Individual means a natural person.



Sec. 1401.260  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec. 1401.265  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.



Sec. 1401.270  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered non-procurement 
transactions for a temporary period, pending completion of an 
investigation and any judicial or administrative proceedings that may 
ensue. A recipient so prohibited is suspended, in accordance with the 
Federal Acquisition Regulation for procurement contracts (48 CFR part 9, 
subpart 9.4) and 2 CFR part 180. Suspension of a recipient is a distinct 
and separate action from suspension of an award or suspension of 
payments under an award.



      Subpart C_Requirements for Recipients Other Than Individuals



Sec. 1401.300  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees; and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace.
    (b) Second, you must identify all known workplaces under your 
Federal awards.



Sec. 1401.305  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.

[[Page 275]]



Sec. 1401.310  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec. 
1401.305 be given to each employee who will be engaged in the 
performance of any Federal award.



Sec. 1401.315  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.



Sec. 1401.320  By when must I publish my drug-free workplace statement and establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec. 1401.305 and an ongoing awareness 
program as described in Sec. 1401.315, you must publish the statement 
and establish the program by the time given in the following table:

------------------------------------------------------------------------
                If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award  must have the policy statement
 is less than 30 days.                    and program in place as soon
                                          as possible, but before the
                                          date on which performance is
                                          expected to be completed.
(b) The performance period of the award  must have the policy statement
 is 30 days or more.                      and program in place within 30
                                          days after award.
(c) You believe there are extraordinary  may ask the Department of the
 circumstances that will require more     Interior awarding official to
 than 30 days for you to publish the      give you more time to do so.
 policy statement and establish the       The amount of additional time,
 awareness program.                       if any, to be given is at the
                                          discretion of the awarding
                                          official.
------------------------------------------------------------------------



Sec. 1401.325  What actions must I take concerning employees who are convicted of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec. 1401.305(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973, 29 U.S.C. 794, as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec. 1401.330  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each DOI award. A 
failure to do so is a violation of your drug-free workplace 
requirements. You may identify the workplaces--
    (1) To the DOI official that is making the award, either at the time 
of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available

[[Page 276]]

for inspection upon request by DOI officials or their designated 
representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award takes place. Categorical descriptions may be used 
(e.g., all vehicles of a mass transit authority or State highway 
department while in operation, State employees in each local 
unemployment office, performers in concert halls or radio studios).
    (c) If you identified workplaces to the DOI awarding official at the 
time of application or award, as described in paragraph (a)(1) of this 
section, and any workplace that you identified changes during the 
performance of the award, you must inform the DOI awarding official.



Sec. 1401.335  Whom in the DOI does a recipient other than an individual notify about a criminal drug conviction?

    The DOI is not designating a central location for the receipt of 
these reports. Therefore you shall provide this report to every grant 
officer, or other designee within a bureau or office of the Department 
on whose grant activity the convicted employee was working.



        Subpart D_Requirements for Recipients Who Are Individuals



Sec. 1401.400  What must I do to comply with this part if I am an individual recipient?

    As a condition of receiving a DOI award, if you are an individual 
recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the Department of the Interior awarding official or other 
designee for each award that you currently have, unless Sec. 1401.401 
or the award document designates a central point for the receipt of the 
notices. When notice is made to a central point, it must include the 
identification number(s) of each affected award.



Sec. 1401.401  Whom in the DOI does a recipient who is an individual notify about a criminal drug conviction?

    The DOI is not designating a central location for the receipt of 
these reports. Therefore you shall provide this report to every grant 
officer, or other designee within a bureau or office of the Department 
on whose grant activity the convicted employee was working.



 Subpart E_Responsibilities of Department of Interior Awarding Officials



Sec. 1401.500  What are my responsibilities as a DOI awarding official?

    To obtain a recipient's agreement to comply with applicable 
requirements in the OMB guidance at 2 CFR part 182, you must include the 
following term or condition in the award:

    Drug-free workplace. You, as the recipient, must comply with drug-
free workplace requirements in subpart B (or subpart C, if the recipient 
is an individual) of part 1401, which adopts the government-wide 
implementation of 2 CFR part 182; sections 5152-5158 of the Drug-Free 
Workplace Act of 1988, Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 
701-707.



           Subpart F_Violations of this Part and Consequences



Sec. 1401.600  How are violations of this part determined for recipients other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the Director, PAM determines, in writing, 
that--
    (a) The recipient has violated the requirements of subpart B of this 
part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good

[[Page 277]]

faith effort to provide a drug-free workplace.



Sec. 1401.605  How are violations of this part determined for recipients who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the Director, PAM determines, in writing, that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec. 1401.610  What actions will the Federal Government take against a recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec. 1401.600 or Sec. 1401.605, DOI may take one or more 
of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 2 CFR part 180, 
for a period not to exceed five years.



Sec. 1401.615  Are there any exceptions to those actions?

    The Secretary of the Interior may waive with respect to a particular 
award, in writing, a suspension of payments under an award, suspension 
or termination of an award, or suspension or debarment of a recipient if 
the Secretary of the Interior determines that such a waiver would be in 
the public interest. This exception authority cannot be delegated to any 
other official.

[[Page 279]]



               CHAPTER XV--ENVIRONMENTAL PROTECTION AGENCY




  --------------------------------------------------------------------
Part                                                                Page
1532            Nonprocurement debarment and suspension.....         281
1536            Requirements for drug-free workplace 
                    (financial assistance)..................         288

[[Page 281]]



PART 1532_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
1532.10 What does this part do?
1532.20 Does this part apply to me?
1532.30 What policies and procedures must I follow?

                            Subpart A_General

1532.137 Who in the EPA may grant an exception to let an excluded person 
          participate in a covered transaction?

                     Subpart B_Covered Transactions

1532.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

1532.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

1532.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-F [Reserved]

                          Subpart G_Suspension

1532.765 How may I appeal my EPA suspension?

                           Subpart H_Debarment

1532.890 How may I appeal my EPA debarment?

                          Subpart I_Definitions

1532.995 Principal (EPA supplement to government-wide definition at 2 
          CFR 180.995).

 Subpart J_Statutory Disqualification and Reinstatement Under the Clean 
                       Air Act and Clean Water Act

1532.1100 What does this subpart do?
1532.1105 Does this subpart apply to me?
1532.1110 How will a CAA or CWA conviction affect my eligibility to 
          participate in Federal contracts, subcontracts, assistance, 
          loans and other benefits?
1532.1115 Can the EPA extend a CAA or CWA disqualification to other 
          facilities?
1532.1120 What is the purpose of CAA or CWA disqualification?
1532.1125 How do award officials and others know if I am disqualified?
1532.1130 How does disqualification under the CAA or CWA differ from a 
          Federal discretionary suspension or debarment action?
1532.1135 Does CAA or CWA disqualification mean that I must remain 
          ineligible?
1532.1140 Can an exception be made to allow me to receive an award even 
          though I may be disqualified?
1532.1200 How will I know if I am disqualified under the CAA or CWA?
1532.1205 What procedures must I follow to have my procurement and 
          nonprocurement eligibility reinstated under the CAA or CWA?
1532.1210 Will anyone else provide information to the EPA debarring 
          official concerning my reinstatement request?
1532.1215 What happens if I disagree with the information provided by 
          others to the EPA debarring official on my reinstatement 
          request?
1532.1220 What will the EPA debarring official consider in making a 
          decision on my reinstatement request?
1532.1225 When will the EPA debarring official make a decision on my 
          reinstatement request?
1532.1230 How will the EPA debarring official notify me of the 
          reinstatement decision?
1532.1300 Can I resolve my eligibility status under terms of an 
          administrative agreement without having to submit a formal 
          reinstatement request?
1532.1305 What are the consequences if I mislead the EPA in seeking 
          reinstatement or fail to comply with my administrative 
          agreement?
1532.1400 How may I appeal a decision denying my request for 
          reinstatement?
1532.1500 If I am reinstated, when will my name be removed from the 
          EPLS?
1532.1600 What definitions apply specifically to actions under this 
          subpart?

    Authority: 33 U.S.C. 1251 et seq.; 42 U.S.C. 7401 et seq.; Sec. 
2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738 
(3 CFR, 1973 Comp., p. 799); E.O. 12549 (3 CFR, 1986 Comp., p. 189); 
E.O. 12689 (3 CFR, 1989 Comp., p. 235).

    Source: 72 FR 2422, Jan. 19, 2007, unless otherwise noted.



Sec. 1532.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Environmental Protection Agency

[[Page 282]]

(EPA) policies and procedures for nonprocurement debarment and 
suspension. It thereby gives regulatory effect for the EPA to the OMB 
guidance as supplemented by this part. This part satisfies the 
requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189), Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 
6101 note (Section 2455, Pub. L. 103-355, 108 Stat. 3327).



Sec. 1532.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970;
    (b) Respondent in an EPA suspension or debarment action;
    (c) EPA debarment or suspension official; or
    (d) EPA grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.



Sec. 1532.30  What policies and procedures must I follow?

    The EPA policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, as that section is 
supplemented by the section in this part with the same section number. 
The contracts that are covered transactions, for example, are specified 
by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented 
by section 220 in this part (i.e., Sec. 1532.220). For any section of 
OMB guidance in subparts A through I of 2 CFR 180 that has no 
corresponding section in this part, EPA policies and procedures are 
those in the OMB guidance.



                            Subpart A_General



Sec. 1532.137  Who in the EPA may grant an exception to let an excluded person participate in a covered transaction?

    The EPA Debarring Official has the authority to grant an exception 
to let an excluded person participate in a covered transaction, as 
provided in the OMB guidance at 2 CFR 180.135. If the EPA Debarring 
Official grants an exception, the exception must be in writing and state 
the reason(s) for deviating from the governmentwide policy in Executive 
Order 12549.



                     Subpart B_Covered Transactions



Sec. 1532.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    In addition to the contracts covered under 2 CFR 180.220(b) of the 
OMB guidance, this part applies to any contract, regardless of tier, 
that is awarded by a contractor, subcontractor, supplier, consultant, or 
its agent or representative in any transaction, if the contract is to be 
funded or provided by the EPA under a covered nonprocurement transaction 
and the amount of the contract is expected to equal or exceed $25,000. 
This extends the coverage of the EPA nonprocurement suspension and 
debarment requirements to all lower tiers of subcontracts under covered 
nonprocurement transactions, as permitted under the OMB guidance at 2 
CFR 180.220(c) (see optional lower tier coverage in the figure in the 
appendix to 2 CFR part 180).



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 1532.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180, as supplemented by this subpart.

[[Page 283]]



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 1532.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-F [Reserved]



                          Subpart G_Suspension



Sec. 1532.765  How may I appeal my EPA suspension?

    (a) If the EPA suspending official issues a decision under 2 CFR 
180.755 to continue your suspension after you present information in 
opposition to that suspension under 2 CFR 180.720, you can ask for 
review of the suspending official's decision in two ways:
    (1) You may ask the suspending official to reconsider the decision 
for material errors of fact or law that you believe will change the 
outcome of the matter; and/or
    (2) You may request the Director, Office of Grants and Debarment 
(OGD Director), to review the suspending official's decision to continue 
your suspension within 30 days of your receipt of the suspending 
official's decision under 2 CFR 180.755 or paragraph (a)(1) of this 
section. However, the OGD Director can reverse the suspending official's 
decision only where the OGD Director finds that the decision is based on 
a clear error of material fact or law, or where the OGD Director finds 
that the suspending official's decision was arbitrary, capricious, or an 
abuse of discretion.
    (b) A request for review under this section must be in writing; 
state the specific findings you believe to be in error; and include the 
reasons or legal bases for your position.
    (c) A review under paragraph (a)(2) of this section is solely within 
the discretion of the OGD Director who may also stay the suspension 
pending review of the suspending official's decision.
    (d) The EPA suspending official and the OGD Director must notify you 
of their decisions under this section, in writing, using the notice 
procedures at 2 CFR 180.615 and 180.975.



                           Subpart H_Debarment



Sec. 1532.890  How may I appeal my EPA debarment?

    (a) If the EPA debarring official issues a decision under 2 CFR 
180.870 to debar you after you present information in opposition to a 
proposed debarment under 2 CFR 180.815, you can ask for review of the 
debarring official's decision in two ways:
    (1) You may ask the debarring official to reconsider the decision 
for material errors of fact or law that you believe will change the 
outcome of the matter; and/or
    (2) You may request the Director, Office of Grants and Debarment 
(OGD Director), to review the debarring official's decision to debar you 
within 30 days of your receipt of the debarring official's decision 
under 2 CFR 180.870 or paragraph (a)(1) of this section. However, the 
OGD Director can reverse the debarring official's decision only where 
the OGD Director finds that the decision is based on a clear error of 
material fact or law, or where the OGD Director finds that the debarring 
official's decision was arbitrary, capricious, or an abuse of 
discretion.
    (b) A request for review under this section must be in writing; 
state the specific findings you believe to be in error; and include the 
reasons or legal bases for your position.
    (c) A review under paragraph (a)(2) of this section is solely within 
the discretion of the OGD Director who may also stay the debarment 
pending review of the debarring official's decision.
    (d) The EPA debarring official and the OGD Director must notify you 
of their decisions under this section, in writing, using the notice 
procedures at 2 CFR 180.615 and 180.975.

[[Page 284]]



                          Subpart I_Definitions



Sec. 1532.995  Principal (EPA supplement to government-wide definition at 2 CFR 180.995).

    In addition to those listed in 2 CFR 180.995, other examples of 
individuals who are principals in EPA covered transactions include:
    (a) Principal investigators;
    (b) Technical or management consultants;
    (c) Individuals performing chemical or scientific analysis or 
oversight;
    (d) Professional service providers such as doctors, lawyers, 
accountants, engineers, etc.;
    (e) Individuals responsible for the inspection, sale, removal, 
transportation, storage or disposal of solid or hazardous waste or 
materials;
    (f) Individuals whose duties require special licenses;
    (g) Individuals that certify, authenticate or authorize billings; 
and
    (h) Individuals that serve in positions of public trust.



 Subpart J_Statutory Disqualification and Reinstatement Under the Clean 
                       Air Act and Clean Water Act



Sec. 1532.1100  What does this subpart do?

    This subpart explains how the EPA administers section 306 of the 
Clean Air Act (CAA) (42 U.S.C. 7606) and section 508 of the Clean Water 
Act (CWA) (33 U.S.C. 1368), which disqualify persons convicted for 
certain offenses under those statutes (see Sec. 1532.1105), from 
eligibility to receive certain contracts, subcontracts, assistance, 
loans and other benefits (see coverage under the Federal Acquisition 
Regulation (FAR), 48 CFR part 9, subpart 9.4 and subparts A through I of 
2 CFR part 180). It also explains: the procedures for seeking 
reinstatement of a person's eligibility under the CAA or CWA; the 
criteria and standards that apply to EPA's decision-making process; and 
requirements of award officials and others involved in Federal 
procurement and nonprocurement activities in carrying out their 
responsibilities under the CAA and CWA.



Sec. 1532.1105  Does this subpart apply to me?

    (a) Portions of this subpart apply to you if you are convicted, or 
likely to be convicted, of any offense under section 7413(c) of the CAA 
or section 1319(c) of the CWA.
    (b) Portions of this subpart apply to you if you are the EPA 
debarring official, a Federal procurement or nonprocurement award 
official, a participant in a Federal procurement or nonprocurement 
program that is precluded from entering into a covered transaction with 
a person disqualified under the CAA or CWA, or if you are a Federal 
department or agency anticipating issuing an exception to a person 
otherwise disqualified under the CAA or CWA.



Sec. 1532.1110  How will a CAA or CWA conviction affect my eligibility to 

participate in Federal contracts, subcontracts, assistance, loans and other benefits?

    If you are convicted of any offense described in Sec. 1532.1105, 
you are automatically disqualified from eligibility to receive any 
contract, subcontract, assistance, sub-assistance, loan or other 
nonprocurement benefit or transaction that is prohibited by a Federal 
department or agency under the Governmentwide debarment and suspension 
system (i.e. covered transactions under subpart A through I of 2 CFR 
part 180, or prohibited awards under 48 CFR part 9, subpart 9.4), if 
you:
    (a) Will perform any part of the transaction or award at the 
facility giving rise to your conviction (called the violating facility); 
and
    (b) You own, lease or supervise the violating facility.



Sec. 1532.1115  Can the EPA extend a CAA or CWA disqualification to other facilities?

    The CAA specifically authorizes the EPA to extend a CAA 
disqualification to other facilities that are owned or operated by the 
convicted person. The EPA also has authority under subparts A through I 
of 2 CFR part 180, or under 48 CFR part 9, subpart 9.4, to take 
discretionary suspension and debarment actions on the basis of 
misconduct leading to a CAA or CWA conviction,

[[Page 285]]

or for activities that the EPA debarring official believes were designed 
to improperly circumvent a CAA or CWA disqualification.



Sec. 1532.1120  What is the purpose of CAA or CWA disqualification?

    As provided for in Executive Order 11738 (3 CFR, 1973 Comp., p. 
799), the purpose of CAA and CWA disqualification is to enforce the 
Federal Government's policy of undertaking Federal procurement and 
nonprocurement activities in a manner that improves and enhances 
environmental quality by promoting effective enforcement of the CAA or 
CWA.



Sec. 1532.1125  How do award officials and others know if I am disqualified?

    If you are convicted under these statutes, the EPA enters your name 
and address and that of the violating facility into the Excluded Parties 
List System (EPLS) as soon as possible after the EPA learns of your 
conviction. In addition, the EPA enters other information describing the 
nature of your disqualification. Federal award officials and others who 
administer Federal programs consult the EPLS before entering into or 
approving procurement and nonprocurement transactions. Anyone may access 
the EPLS through the internet, currently at http://www.epls.gov.



Sec. 1532.1130  How does disqualification under the CAA or CWA differ from a Federal discretionary suspension or debarment action?

    (a) CAA and CWA disqualifications are exclusions mandated by 
statute. In contrast, suspensions and debarments imposed under subparts 
A through I of 2 CFR part 180 or under 48 CFR part 9, subpart 9.4, are 
exclusions imposed at the discretion of Federal suspending or debarring 
officials. This means that if you are convicted of violating the CAA or 
CWA provisions described under Sec. 1532.1105, ordinarily your name and 
that of the violating facility is placed into the EPLS before you 
receive a confirmation notice of the listing, or have the opportunity to 
discuss the disqualification with, or seek reinstatement from, the EPA.
    (b) CAA or CWA disqualification applies to both the person convicted 
of the offense, and to the violating facility during performance of an 
award or covered transaction under the Federal procurement and 
nonprocurement suspension and debarment system. It is the EPA's policy 
to carry out CAA and CWA disqualifications in a manner which integrates 
the disqualifications into the Governmentwide suspension and debarment 
system. Whenever the EPA determines that the risk presented to Federal 
procurement and nonprocurement activities on the basis of the misconduct 
which gives rise to a person's CAA or CWA conviction exceeds the 
coverage afforded by mandatory disqualification, the EPA may use its 
discretionary authority to suspend or debar a person under subparts A 
through I of 2 CFR part 180, or under 48 CFR part 9, subpart 9.4.



Sec. 1532.1135  Does CAA or CWA disqualification mean that I must remain ineligible?

    You must remain ineligible until the EPA debarring official 
certifies that the condition giving rise to your conviction has been 
corrected. If you desire to have your disqualification terminated, you 
must submit a written request for reinstatement to the EPA debarring 
official and support your request with persuasive documentation. For 
information about the process for reinstatement see Sec. Sec. 1532.1205 
and 1532.1300.



Sec. 1532.1140  Can an exception be made to allow me to receive an award even though I may be disqualified?

    (a) After consulting with the EPA debarring official, the head of 
any Federal department or agency (or designee) may exempt any particular 
award or a class of awards with that department or agency from CAA or 
CWA disqualification. In the event an exemption is granted, the 
exemption must:
    (1) Be in writing; and
    (2) State why the exemption is in the paramount interests of the 
United States.
    (b) In the event an exemption is granted, the exempting department 
or

[[Page 286]]

agency must send a copy of the exemption decision to the EPA debarring 
official for inclusion in the official record.



Sec. 1532.1200  How will I know if I am disqualified under the CAA or CWA?

    There may be several ways that you learn about your 
disqualification. You are legally on notice by the statutes that a 
criminal conviction the CAA or CWA automatically disqualifies you. As a 
practical matter, you may learn about your disqualification from your 
defense counsel, a Federal contract or award official, or from someone 
else who sees your name in the EPLS. As a courtesy, the EPA will attempt 
to notify you and the owner, lessor or supervisor of the violating 
facility that your names have been entered into the EPLS. The EPA will 
inform you of the procedures for seeking reinstatement and give you the 
name of a person you can contact to discuss your reinstatement request.



Sec. 1532.1205  What procedures must I follow to have my procurement and nonprocurement eligibility reinstated under the CAA or CWA?

    (a) You must submit a written request for reinstatement to the EPA 
debarring official stating what you believe the conditions were that led 
to your conviction, and how those conditions have been corrected, 
relieved or addressed. Your request must include documentation 
sufficient to support all material assertions you make. The debarring 
official must determine that all the technical and non-technical causes, 
conditions and consequences of your actions have been sufficiently 
addressed so that the Government can confidently conduct future business 
activities with you, and that your future operations will be conducted 
in compliance with the CAA and CWA.
    (b) You may begin the reinstatement process by having informal 
discussions with the EPA representative named in your notification of 
listing. Having informal dialogue with that person will make you aware 
of the EPA concerns that must be addressed. The EPA representative is 
not required to negotiate conditions for your reinstatement. However, 
beginning the reinstatement process with informal dialogue increases the 
chance of achieving a favorable outcome, and avoids unnecessary delay 
that may result from an incomplete or inadequate reinstatement request. 
It may also allow you to resolve your disqualification by reaching an 
agreement with the EPA debarring official under informal procedures. 
Using your informal option first does not prevent you from submitting a 
formal reinstatement request with the debarring official at any time.



Sec. 1532.1210  Will anyone else provide information to the EPA debarring official concerning my reinstatement request?

    If you request reinstatement under Sec. 1532.1205, the EPA 
debarring official may obtain review and comment on your request by 
anyone who may have information about, or an official interest in, the 
matter. For example, the debarring official may consult with the EPA 
Regional offices, the Department of Justice or other Federal agencies, 
or state, tribal or local governments. The EPA debarring official will 
make sure that you have an opportunity to address important allegations 
or information contained in the administrative record before making a 
final decision on your request for reinstatement.



Sec. 1532.1215  What happens if I disagree with the information provided by others to the EPA debarring official on my reinstatement request?

    (a) If your reinstatement request is based on factual information 
(as opposed to a legal matter or discretionary conclusion) that is 
different from the information provided by others or otherwise contained 
in the administrative record, the debarring official will decide whether 
those facts are genuinely in dispute, and material to making a decision. 
If so, a fact-finding proceeding will be conducted in accordance with 2 
CFR 180.830 through 180.840, and the debarring official will consider 
the findings when making a decision on your reinstatement request.
    (b) If the basis for your disagreement with the information 
contained in the administrative record relates to a legal issue or 
discretionary conclusion, or is not a genuine dispute over a material 
fact, you will not have a fact-finding

[[Page 287]]

proceeding. However, the debarring official will allow you ample 
opportunity to support your position for the record and present matters 
in opposition to your continued disqualification. A summary of any 
information you provide orally, if not already recorded, should also be 
submitted to the debarring official in writing to assure that it is 
preserved for the debarring official's consideration and the 
administrative record.



Sec. 1532.1220  What will the EPA debarring official consider in making a decision on my reinstatement request?

    (a) The EPA debarring official will consider all information and 
arguments contained in the administrative record in support of, or in 
opposition to, your request for reinstatement, including any findings of 
material fact.
    (b) The debarring official will also consider any mitigating or 
aggravating factors that may relate to your conviction or the 
circumstances surrounding it, including any of those factors that appear 
in 2 CFR 180.860 that may apply to your situation.
    (c) Finally, if disqualification applies to a business entity, the 
debarring official will consider any corporate or business attitude, 
policies, practices and procedures that contributed to the events 
leading to conviction, or that may have been implemented since the date 
of the misconduct or conviction. You can obtain any current policy 
directives issued by the EPA that apply to CAA or CWA disqualification 
or reinstatement by contacting the Office of the EPA Debarring Official, 
U.S. EPA, Office of Grants and Debarment (3901R), 1200 Pennsylvania 
Avenue, NW., Washington, DC 20460.



Sec. 1532.1225  When will the EPA debarring official make a decision on my reinstatement request?

    (a) The EPA debarring official will make a decision regarding your 
reinstatement request under Sec. 1532.1205(a), when the administrative 
record is complete, and he or she can determine whether the condition 
giving rise to the CAA or CWA conviction has been corrected-usually 
within 45 days of closing the administrative record.
    (b) A reinstatement request is not officially before the debarring 
official while you are having informal discussions under Sec. 
1532.1205(b).



Sec. 1532.1230  How will the EPA debarring official notify me of the reinstatement decision?

    The EPA debarring official will notify you of the reinstatement 
decision in writing, using the same methods for communicating debarment 
or suspension action notices under 2 CFR 180.615.



Sec. 1532.1300  Can I resolve my eligibility status under terms of an 

administrative agreement without having to submit a formal reinstatement request?

    (a) The EPA debarring official may, at any time, resolve your CAA or 
CWA eligibility status under the terms of an administrative agreement. 
Ordinarily, the debarring official will not make an offer to you for 
reinstatement until after the administrative record for decision is 
complete, or contains enough information to enable him or her to make an 
informed decision in the matter.
    (b) Any resolution of your eligibility status under the CAA or CWA 
resulting from an administrative agreement must include a certification 
that the condition giving rise to the conviction has been corrected.
    (c) The EPA debarring official may enter into an administrative 
agreement to resolve CAA or CWA disqualification issues as part of a 
comprehensive criminal plea, civil or administrative agreement when it 
is in the best interest of the United States to do so.



Sec. 1532.1305  What are the consequences if I mislead the EPA in seeking reinstatement or fail to comply with my administrative agreement?

    (a) Any certification of correction issued by the EPA debarring 
official whether the certification results from a reinstatement decision 
under Sec. Sec. 1532.1205(a) and 1532.1230, or from an administrative 
agreement under Sec. Sec. 1532.1205(b) and 1532.1300, is conditioned 
upon the accuracy of the information, representations or assurances made 
during development of the administrative record.

[[Page 288]]

    (b) If the EPA debarring official finds that he or she has certified 
correction of the condition giving rise to a CAA or CWA conviction or 
violation on the basis of a false, misleading, incomplete or inaccurate 
information; or if a person fails to comply with material condition of 
an administrative agreement, the EPA debarring official may take 
suspension or debarment action against the person(s) responsible for the 
misinformation or noncompliance with the agreement as appropriate. If 
anyone provides false, inaccurate, incomplete or misleading information 
to EPA in an attempt to obtain reinstatement, the EPA debarring official 
will refer the matter to the EPA Office of Inspector General for 
potential criminal or civil action.



Sec. 1532.1400  How may I appeal a decision denying my request for reinstatement?

    (a) If the EPA debarring official denies your request for 
reinstatement under the CAA or CWA, you can ask for review of the 
debarring official's decision in two ways:
    (1) You may ask the debarring official to reconsider the decision 
for material errors of fact or law that you believe will change the 
outcome of the matter; and/ or
    (2) You may request the Director, Office of Grants and Debarment 
(OGD Director), to review the debarring official's denial within 30 days 
of your receipt of the debarring official's decision under Sec. 
1532.1230 or paragraph (a)(1) of this section. However, the OGD Director 
can reverse the debarring official's decision denying reinstatement only 
where the OGD Director finds that there is a clear error of material 
fact or law, or where the OGD Director finds that the debarring 
official's decision was arbitrary, capricious, or an abuse of 
discretion.
    (b) A request for review under this section must be in writing and 
state the specific findings you believe to be in error and include the 
reasons or legal bases for your position.
    (c) A review under this section is solely within the discretion of 
the OGD Director.
    (d) The OGD Director must notify you of his or her decision under 
this section, in writing, using the notice procedures at 2 CFR 180.615 
and 180.975.



Sec. 1532.1500  If I am reinstated, when will my name be removed from the EPLS?

    If your eligibility for procurement and nonprocurement participation 
is restored under the CAA or CWA, whether by decision, appeal, or by 
administrative agreement, the EPA will remove your name and that of the 
violating facility from the EPLS, generally within 5 working days of 
your reinstatement.



Sec. 1532.1600  What definitions apply specifically to actions under this subpart?

    In addition to definitions under subpart A through I of 2 CFR part 
180 that apply to this part as a whole, the following two definitions 
apply specifically to CAA and CWA disqualifications under this subpart:
    (a) Person means an individual, corporation, partnership, 
association, state, municipality, commission, or political subdivision 
of a state, or any interstate body.
    (b) Violating facility means any building, plant, installation, 
structure, mine, vessel, floating craft, location or site of operations 
that gives rise to a CAA or CWA conviction, and is a location at which 
or from which a Federal contract, subcontract, loan, assistance award or 
other covered transactions may be performed. If a site of operations 
giving rise to a CAA or CWA conviction contains or includes more than 
one building, plant, installation, structure, mine, vessel, floating 
craft, or other operational element, the entire location or site of 
operation is regarded as the violating facility unless otherwise limited 
by the EPA.



PART 1536_REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE)--Table of Contents



Sec.
1536.10 What does this part do?
1536.20 Does this part apply to me?
1536.30 What policies and procedures must I follow?

Subpart A--Purpose and Coverage [Reserved]

[[Page 289]]

      Subpart B_Requirements for Recipients Other Than Individuals

1536.225 Whom in the Environmental Protection Agency does a recipient 
          other than an individual notify about a criminal drug 
          conviction?

        Subpart C_Requirements for Recipients Who Are Individuals

1536.300 Whom in the Environmental Protection Agency does a recipient 
          who is an individual notify about a criminal drug conviction?

         Subpart D_Responsibilities of Agency Awarding Officials

1536.400 What method do I use as an agency awarding official to obtain a 
          recipient's agreement to comply with the OMB guidance?

           Subpart E_Violations of This Part and Consequences

1536.500 Who in the Environmental Protection Agency determines that a 
          recipient other than an individual violated the requirements 
          of this part?
1536.505 Who in the Environmental Protection Agency determines that a 
          recipient who is an individual violated the requirements of 
          this part?

    Authority: 41 U.S.C. 701-707.

    Source: 75 FR 80288, Dec. 22, 2010, unless otherwise noted.



Sec. 1536.10  What does this part do?

    This part requires that the award and administration of 
Environmental Protection Agency grants and cooperative agreements comply 
with Office of Management and Budget (OMB) guidance implementing the 
portion of the Drug-Free Workplace Act of 1988 (41 U.S.C. 701-707, as 
amended, hereafter referred to as ``the Act'') that applies to grants. 
It thereby--
    (a) Gives regulatory effect to the OMB guidance (subparts A through 
F of 2 CFR part 182) for the Environmental Protection Agency's grants 
and cooperative agreements; and
    (b) Establishes Environmental Protection Agency policies and 
procedures for compliance with the Act that are the same as those of 
other Federal agencies, in conformance with the requirement in 41 U.S.C. 
705 for Governmentwide implementing regulations.



Sec. 1536.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through F of 2 CFR part 182 (see table at 2 CFR 
182.115(b)) apply to you if you are a--
    (a) Recipient of a Environmental Protection Agency grant or 
cooperative agreement; or
    (b) Environmental Protection Agency awarding official.



Sec. 1536.30  What policies and procedures must I follow?

    (a) General. You must follow the policies and procedures specified 
in applicable sections of the OMB guidance in subparts A through F of 2 
CFR part 182, as implemented by this part.
    (b) Specific sections of OMB guidance that this part supplements. In 
implementing the OMB guidance in 2 CFR part 182, this part supplements 
four sections of the guidance, as shown in the following table. For each 
of those sections, you must follow the policies and procedures in the 
OMB guidance, as supplemented by this part.

----------------------------------------------------------------------------------------------------------------
                                                           Section in this
                 Section of OMB guidance                      part where      What the supplementation clarifies
                                                             supplemented
----------------------------------------------------------------------------------------------------------------
(1) 2 CFR 182.225(a)....................................    Sec.  1536.225  Whom in the Environmental
                                                                              Protection Agency a recipient
                                                                              other than an individual must
                                                                              notify if an employee is convicted
                                                                              for a violation of a criminal drug
                                                                              statute in the workplace.
(2) 2 CFR 182.300(b)....................................    Sec.  1536.300  Whom in the Environmental
                                                                              Protection Agency a recipient who
                                                                              is an individual must notify if he
                                                                              or she is convicted of a criminal
                                                                              drug offense resulting from a
                                                                              violation occurring during the
                                                                              conduct of any award activity.
(3) 2 CFR 182.500.......................................    Sec.  1536.500  Who in the Environmental Protection
                                                                              Agency is authorized to determine
                                                                              that a recipient other than an
                                                                              individual is in violation of the
                                                                              requirements of 2 CFR part 182, as
                                                                              implemented by this part.

[[Page 290]]

 
(4) 2 CFR 182.505.......................................    Sec.  1536.505  Who in the Environmental Protection
                                                                              Agency is authorized to determine
                                                                              that a recipient who is an
                                                                              individual is in violation of the
                                                                              requirements of 2 CFR part 182, as
                                                                              implemented by this part.
----------------------------------------------------------------------------------------------------------------

    (c) Sections of the OMB guidance that this part does not supplement. 
For any section of OMB guidance in subparts A through F of 2 CFR part 
182 that is not listed in paragraph (b) of this section, Environmental 
Protection Agency policies and procedures are the same as those in the 
OMB guidance.

Subpart A--Purpose and Coverage [Reserved]



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 1536.225  Whom in the Environmental Protection Agency does a recipient other than an individual notify about a criminal drug conviction?

    A recipient other than an individual that is required under 2 CFR 
182.225(a) to notify Federal agencies about an employee's conviction for 
a criminal drug offense must notify the EPA award official from each 
Environmental Protection Agency office from which it currently has an 
award.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 1536.300  Whom in the Environmental Protection Agency does a recipient who is an individual notify about a criminal drug conviction?

    A recipient who is an individual and is required under 2 CFR 
182.300(b) to notify Federal agencies about a conviction for a criminal 
drug offense must notify the EPA award official from each Environmental 
Protection Agency office from which it currently has an award.



         Subpart D_Responsibilities of Agency Awarding Officials



Sec. 1536.400  What method do I use as an agency awarding official to obtain a recipient's agreement to comply with the OMB guidance?

    To obtain a recipient's agreement to comply with applicable 
requirements in the OMB guidance at 2 CFR part 182, you must include the 
following term or condition in the award:

    Drug-free workplace. You as the recipient must comply with drug-free 
workplace requirements in Subpart B (or Subpart C, if the recipient is 
an individual) of 2 CFR Subtitle B, Chapter XV, Part 1536, which adopts 
the Governmentwide implementation (2 CFR part 182) of sec. 5152-5158 of 
the Drug-Free Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle 
D; 41 U.S.C. 701-707).



           Subpart E_Violations of This Part and Consequences



Sec. 1536.500  Who in the Environmental Protection Agency determines that a recipient other than an individual violated the requirements of this part?

    The EPA Administrator or designee is the official authorized to make 
the determination under 2 CFR 182.500.



Sec. 1536.505  Who in the Environmental Protection Agency determines that a recipient who is an individual violated the requirements of this part?

    The EPA Administrator or designee is the official authorized to make 
the determination under 2 CFR 182.505.

[[Page 291]]



      CHAPTER XVIII--NATIONAL AERONAUTICS AND SPACE ADMINISTRATION




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[[Page 293]]



PART 1880_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
1880.10 What does this part do?
1880.20 Does this part apply to me?
1880.30 What policies and procedures must I follow?

                            Subpart A_General

1880.137 Who in NASA may grant an exception to let an excluded person 
          participate in a covered transaction?

                     Subpart B_Covered Transactions

1880.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

1880.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

1880.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-J [Reserved]

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 42 
U.S.C. 2473(c)(1).

    Source: 72 FR 19783, Apr. 20, 2007, unless otherwise noted.



Sec. 1880.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the NASA policies and procedures for nonprocurement debarment and 
suspension. It thereby gives regulatory effect for NASA to the OMB 
guidance as supplemented by this part. This part satisfies the 
requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189), Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 
6101 note (Section 2455, Public Law 103-355, 108 Stat. 3327).



Sec. 1880.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970);
    (b) Respondent in a NASA suspension or debarment action;
    (c) NASA debarment or suspension official; or
    (d) NASA grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.



Sec. 1880.30  What policies and procedures must I follow?

    The NASA policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, as that section is 
supplemented by the section in this part with the same section number. 
The contracts that are covered transactions, for example, are specified 
by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented 
by section 220 in this part (i.e., Sec. 1880.220). For any section of 
OMB guidance in subparts A through I of 2 CFR 180 that has no 
corresponding section in this part, NASA policies and procedures are 
those in the OMB guidance.



                            Subpart A_General



Sec. 1880.137  Who in NASA may grant an exception to let an excluded person participate in a covered transaction?

    The Chief Acquisition Officer has the authority to grant an 
exception to let an excluded person participate in a covered 
transaction, as provided in the OMB guidance at 2 CFR 180.135.

[[Page 294]]



                     Subpart B_Covered Transactions



Sec. 1880.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see optional lower tier coverage in the figure in 
the appendix to 2 CFR part 180), NASA does not extend coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts under a covered nonprocurement transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 1880.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180, as supplemented by this subpart.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 1880.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-J [Reserved]

[[Page 295]]



         CHAPTER XX--UNITED STATES NUCLEAR REGULATORY COMMISSION




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[[Page 297]]



PART 2000_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



                            Subpart A_General

Sec.
2000.10 What does this part do?
2000.20 Does this part apply to me?
2000.30 What policies and procedures must I follow?
2000.135 Who in the Nuclear Regulatory Commission may grant an exception 
          to let an excluded person participate in a covered 
          transaction?

                     Subpart B_Covered Transactions

2000.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

2000.330 What method must be used to pass requirements down to 
          participants at lower tiers?

Subparts D-H [Reserved]

                          Subpart I_Definitions

2000.930 Debarring official.
2000.1010 Suspending official.


    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 5 U.S.C. 
301 and 10 U.S.C. 113.

    Source: 75 FR 27924, May 19, 2010, unless otherwise noted.



                            Subpart A_General



Sec. 2000.10  What does this part do?

    This part promulgates a regulation adopting the Office of Management 
and Budget (OMB) guidance in subparts A through I of 2 CFR part 180, 
establishing the United States Nuclear Regulatory Commission (NRC) 
policies and procedures for nonprocurement debarment and suspension. NRC 
thereby gives regulatory effect to the OMB guidance. It also supplements 
the OMB guidance by identifying NRC implementing officials and 
identifying how to pass these requirements through to other entities.



Sec. 2000.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to:
    (a) Participant or principal in a ``covered transaction'';
    (b) Respondent in an NRC nonprocurement suspension or debarment 
action;
    (c) NRC debarment or suspension official; or
    (d) NRC grants officer, agreements officer, or other official 
authorized to enter into a covered nonprocurement transaction.



Sec. 2000.30  What policies and procedures must I follow?

    (a) The NRC policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, and those in this 
part. The NRC has closely tracked OMB's numbering scheme. For example, 
the contracts under a nonprocurement transaction that are covered 
transactions that are in section 220 of the OMB guidance (i.e., 2 CFR 
180.220) are found in Sec. 2000.220.
    (b) For any section of OMB guidance in subparts A through I of 2 CFR 
part 180 that has no corresponding section in this part, NRC 
requirements are those in the OMB guidance at 2 CFR part 180.



Sec. 2000.135  Who in the Nuclear Regulatory Commission may grant an exception to let an excluded person participate in a covered transaction?

    The Director, Office of Administration or another official 
designated by the Director, has the authority to grant a written 
exception to let an excluded person participate in a covered 
transaction, as provided in guidance at 2 CFR 180.135. The Director or 
other official designated by the Director shall explain the reason(s) 
for deviating from the governmentwide policy.



                     Subpart B_Covered Transactions



Sec. 2000.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    The NRC nonprocurement suspension and debarment requirements apply

[[Page 298]]

only to first-tier procurement contracts under a covered nonprocurement 
transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 2000.330  What method must be used to pass requirements down to participants at lower tiers?

    A participant in a covered transaction must include a term or 
condition in any lower-tier covered transaction to require the 
participant of that transaction to--
    (a) Comply with subpart C of the OMB guidance in 2 CFR part 180; and
    (b) Include a similar term or condition in any covered transaction 
into which it enters at the next lower tier.

Subparts E-H [Reserved]



                          Subpart I_Definitions



Sec. 2000.930  Debarring official.

    The Debarring Official for the United States Nuclear Regulatory 
Commission is the Director, Office of Administration.



Sec. 2000.1010  Suspending official.

    The suspending official for the United States Nuclear Regulatory 
Commission is the Director, Office of Administration.

[[Page 299]]



      CHAPTER XXII--CORPORATION FOR NATIONAL AND COMMUNITY SERVICE




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2200            Nonprocurement debarment and suspension.....         301
2245            Requirements for drug-free workplace 
                    (financial assistance)..................         302

[[Page 301]]



PART 2200_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
2200.10 What does this part do?
2200.20 Does this part apply to me?
2200.30 What policies and procedures must I follow?
2200.137 Who in the Corporation for National and Community Service may 
          grant an exception to let an excluded person participate in a 
          covered transaction?
2200.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?
2200.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?
2200.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 22 
U.S.C. 2503(b).

    Source: 72 FR 28826, May 23, 2007, unless otherwise noted.



Sec. 2200.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Corporation for National and Community Service policies and 
procedures for nonprocurement debarment and suspension. It thereby gives 
regulatory effect for the Corporation for National and Community Service 
to the OMB guidance as supplemented by this part. This part satisfies 
the requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189), Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 
6101 note (Section 2455, Pub. L. 103-355, 108 Stat. 3327).



Sec. 2200.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction.'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970.
    (b) Respondent in a Corporation for National and Community Service 
suspension or debarment action;
    (c) Corporation for National and Community Service debarment or 
suspension official; or
    (d) Corporation for National and Community Service grants officer, 
agreements officer, or other official authorized to enter into any type 
of nonprocurement transaction that is a covered transaction.



Sec. 2200.30  What policies and procedures must I follow?

    The Corporation for National and Community Service policies and 
procedures that you must follow are the policies and procedures 
specified in each applicable section of the OMB guidance in subparts A 
through I of 2 CFR part 180, as that section is supplemented by the 
section in this part with the same section number. The contracts that 
are covered transactions, for example, are specified by section 220 of 
the OMB guidance (i.e., 2 CFR 180.220) as supplemented by section 220 in 
this part (i.e., Sec. 2200.220). For any section of OMB guidance in 
subparts A through I of 2 CFR part 180 that has no corresponding section 
in this part, Corporation for National and Community Service policies 
and procedures are those in the OMB guidance.



Sec. 2200.137  Who in the Corporation for National and Community Service

may grant an exception to let an excluded person participate in a covered transaction?

    The Chief Executive Officer (or another official designated by the 
Chief Executive Officer) has the authority to grant an exception to let 
an excluded person participate in a covered transaction, as provided in 
the OMB guidance at 2 CFR 180.135.



Sec. 2200.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see optional lower tier coverage in the figure in 
the appendix to 2 CFR part 180), Corporation for National

[[Page 302]]

and Community Service does not extend coverage of nonprocurement 
suspension and debarment requirements beyond first-tier procurement 
contracts under a covered nonprocurement transaction.



Sec. 2200.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180.



Sec. 2200.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you as an agency official must include a 
term or condition in the transaction that requires the participant's 
compliance with subpart C of 2 CFR part 180, and requires the 
participant to include a similar term or condition in lower-tier covered 
transactions.



PART 2245_REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE)--Table of Contents



Sec.
2245.10 What does this part do?
2245.20 Does this part apply to me?
2245.30 What policies and procedures must I follow?

Subpart A--Purpose and Coverage [Reserved]

      Subpart B_Requirements for Recipients Other Than Individuals

2245.225 Whom in the Corporation does a recipient other than an 
          individual notify about a criminal drug conviction?

        Subpart C_Requirements for Recipients Who Are Individuals

2245.300 Whom in the Corporation does a recipient who is an individual 
          notify about a criminal drug conviction?

         Subpart D_Responsibilities of Agency Awarding Officials

2245.400 What method do I use as an agency awarding official to obtain a 
          recipient's agreement to comply with the OMB guidance?

           Subpart E_Violations of this Part and Consequences

2245.500 Who in the Corporation determines that a recipient other than 
          an individual violated the requirements of this part?
2245.505 Who in the Corporation determines that a recipient who is an 
          individual violated the requirements of this part?

Subpart F [Reserved]

    Authority: 41 U.S.C. 701-707; 42 U.S.C. 12644.

    Source: 75 FR 22206, Apr. 28, 2010, unless otherwise noted.



Sec. 2245.10  What does this part do?

    This part requires that the award and administration of the 
Corporation's grants and cooperative agreements comply with Office of 
Management and Budget (OMB) guidance implementing the portion of the 
Drug-Free Workplace Act of 1988 (41 U.S.C. 701-707, as amended, 
hereafter referred to as ``the Act'') that applies to grants. It 
thereby--
    (a) Gives regulatory effect to the OMB guidance (subparts A through 
F of 2 CFR part 182) for the Corporation's grants and cooperative 
agreements; and
    (b) Establishes the Corporation's policies and procedures for 
compliance with the Act that are the same as those of other Federal 
agencies, in conformance with the requirement in 41 U.S.C. 705 for 
Government-wide implementing regulations.



Sec. 2245.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through F of 2 CFR part 182 (see table at 2 CFR 
182.115(b)) apply to you if you are a--
    (a) Recipient of a Corporation grant or cooperative agreement; or
    (b) A Corporation awarding official.

[[Page 303]]



Sec. 2245.30  What policies and procedures must I follow?

    (a) General. You must follow the policies and procedures specified 
in applicable sections of the OMB guidance in subparts A through F of 2 
CFR part 182, as implemented by this part.
    (b) Specific sections of OMB guidance that this part supplements. In 
implementing the OMB guidance in 2 CFR part 182, this part supplements 
four sections of the guidance, as shown in the following table. For each 
of those sections, you must follow the policies and procedures in the 
OMB guidance, as supplemented by this part.

----------------------------------------------------------------------------------------------------------------
                                           Section in this
        Section of OMB  guidance             part where              What the supplementation clarifies
                                            supplemented
----------------------------------------------------------------------------------------------------------------
(1) 2 CFR 182.225(a)....................   Sec.  2245.225  Whom in the Corporation a recipient other than an
                                                             individual must notify if an employee is convicted
                                                             for a violation of a criminal drug statute in the
                                                             workplace.
(2) 2 CFR 182.300(b)....................   Sec.  2245.300  Whom in the Corporation a recipient who is an
                                                             individual must notify if he or she is convicted of
                                                             a criminal drug offense resulting from a violation
                                                             occurring during the conduct of any award activity.
(3) 2 CFR 182.500.......................   Sec.  2245.500  Who in the Corporation is authorized to determine
                                                             that a recipient other than an individual is in
                                                             violation of the requirements of 2 CFR part 182, as
                                                             implemented by this part.
(4) 2 CFR 182.505.......................   Sec.  2245.505  Who in the Corporation is authorized to determine
                                                             that a recipient who is an individual is in
                                                             violation of the requirements of 2 CFR part 182, as
                                                             implemented by this part.
----------------------------------------------------------------------------------------------------------------

    (c) Sections of the OMB guidance that this part does not supplement. 
For any section of OMB guidance in subparts A through F of 2 CFR part 
182 that is not listed in paragraph (b) of this section, the 
Corporation's policies and procedures are the same as those in the OMB 
guidance.

Subpart A--Purpose and Coverage [Reserved]



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 2245.225  Whom in the Corporation does a recipient other than an individual notify about a criminal drug conviction?

    A recipient other than an individual that is required under 2 CFR 
182.225(a) to notify Federal agencies about an employee's conviction for 
a criminal drug offense must notify the Corporation's awarding official 
or other designee.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 2245.300  Whom in the Corporation does a recipient who is an individual notify about a criminal drug conviction?

    A recipient who is an individual and is required under 2 CFR 
182.300(b) to notify Federal agencies about a conviction for a criminal 
drug offense must notify the Corporation's awarding official or other 
designee.



         Subpart D_Responsibilities of Agency Awarding Officials



Sec. 2245.400  What method do I use as an agency awarding official to obtain a recipient's agreement to comply with the OMB guidance?

    To obtain a recipient's agreement to comply with applicable 
requirements in the OMB guidance at 2 CFR part 182, you must obtain each 
recipient's agreement, as a condition of the award, to comply with the 
requirements in subpart B (or subpart C, if the recipient is an 
individual) of 2245, which adopts the Government-wide implementation (2 
CFR part 182) of sec. 5152-5158 of the Drug-Free Workplace Act of 1988 
(Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701-707).

[[Page 304]]



           Subpart E_Violations of this Part and Consequences



Sec. 2245.500  Who in the Corporation determines that a recipient other than an individual violated the requirements of this part?

    The Corporation's Chief Executive Officer or designee is authorized 
to make the determination under 2 CFR 182.500.



Sec. 2245.505  Who in the Corporation determines that a recipient who is an individual violated the requirements of this part?

    The Corporation's Chief Executive Officer or designee is authorized 
to make the determination under 2 CFR 182.500.

Subpart F [Reserved]

[[Page 305]]



              CHAPTER XXIII--SOCIAL SECURITY ADMINISTRATION




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2339            Requirements for drug-free workplace 
                    (financial assistance)..................         308

[[Page 307]]



PART 2336_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
2336.10 What does this part do?
2336.20 Does this part apply to me?
2336.30 What policies and procedures must I follow?

                            Subpart A_General

2336.137 Who in the SSA may grant an exception to let an excluded person 
          participate in a covered transaction?

                     Subpart B_Covered Transactions

2336.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

2336.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

2336.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-J [Reserved]

    Authority: 42 U.S.C. 902(a)(5); Sec. 2455, Pub. L. 103-355, 108 
Stat. 3327; E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR, 
1989 Comp., p. 235).

    Source: 72 FR 46140, Aug. 17, 2007, unless otherwise noted.



Sec. 2336.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the SSA policies and procedures for nonprocurement debarment and 
suspension. This part satisfies the requirements in section 3 of 
Executive Order 12549, ``Debarment and Suspension'' (3 CFR 1986 Comp., 
p. 189), Executive Order 12689, ``Debarment and Suspension'' (3 CFR 1989 
Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Pub. L. 103-355, 
108 Stat. 3327).



Sec. 2336.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970);
    (b) Respondent in an SSA suspension or debarment action;
    (c) SSA debarment or suspension official; or
    (d) SSA grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.



Sec. 2336.30  What policies and procedures must I follow?

    The SSA policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, as supplemented by 
the section in this part with the same section number. The contracts 
that are covered transactions, for example, are specified by section 220 
of the OMB guidance (i.e., 2 CFR 180.220), as supplemented by section 
220 in this part (i.e., Sec. 2336.220). For any section of OMB guidance 
in subparts A through I of 2 CFR 180 that has no corresponding section 
in this part, SSA policies and procedures are those in the OMB guidance.



                            Subpart A_General



Sec. 2336.137  Who in the SSA may grant an exception to let an excluded person participate in a covered transaction?

    (a) Within the Social Security Administration, the Commissioner or 
the designated agency debarment official may grant an exception 
permitting an excluded person to participate in a particular covered 
transaction. If the Commissioner or the designated agency debarment 
official grants an exception, the exception must be in writing and state 
the reason(s) for deviating from the OMB guidance at 2 CFR 180.135.

[[Page 308]]

    (b) An exception granted by one agency for an excluded person does 
not extend to the covered transactions of another agency.



                     Subpart B_Covered Transactions



Sec. 2336.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see option lower tier coverage in the figure in 
the appendix to 2 CFR part 180), SSA does not extend coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts under a covered nonprocurement transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 2336.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180, as supplemented by this subpart.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 2336.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-J [Reserved]



PART 2339_REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE)--Table of Contents



Sec.
2339.10 What does this part do?
2339.20 Does this part apply to me?
2339.30 What policies and procedures must I follow?

Subpart A [Reserved]

      Subpart B_Requirements for Recipients Other Than Individuals

2339.225 Who in the Social Security Administration does a recipient 
          other than an individual notify about a criminal drug 
          conviction?

Subpart C [Reserved]

         Subpart D_Responsibilities of Agency Awarding Officials

2339.400 What method do I use as an agency awarding official to obtain a 
          recipient's agreement to comply with the OMB guidance?

           Subpart E_Violations of this Part and Consequences

2339.500 Who in the Social Security Administration determines that a 
          recipient other than an individual violated the requirements 
          of this part?

Subpart F [Reserved]

    Authority: 41 U.S.C. 701-707.

    Source: 75 FR 31274, June 3, 2010, unless otherwise noted.



Sec. 2339.10  What does this part do?

    This part requires that the award and administration of Social 
Security Administration (SSA) grants and cooperative agreements comply 
with Office of Management and Budget (OMB) guidance implementing the 
portion of the Drug-Free Workplace Act of 1988 (41 U.S.C. 701-707, as 
amended, hereafter referred to as ``the Act'') that applies to grants. 
It thereby--
    (a) Gives regulatory effect to the OMB guidance (subparts A through 
F of 2 CFR part 182) for SSA's grants and cooperative agreements; and
    (b) Establishes SSA's policies and procedures for compliance with 
the Act that are the same as those of other Federal agencies, in 
conformance with

[[Page 309]]

the requirement in 41 U.S.C. 705 for Government-wide implementing 
regulations.



Sec. 2339.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through F of 2 CFR part 182 (see table at 2 CFR 
182.115(b)) apply to you if you are--
    (a) A recipient of an SSA grant or cooperative agreement; or
    (b) An SSA awarding official.



Sec. 2339.30  What policies and procedures must I follow?

    (a) General. You must follow the policies and procedures specified 
in applicable sections of the OMB guidance in subparts A through F of 2 
CFR part 182, as implemented by this part.
    (b) Specific sections of OMB guidance that this part supplements. In 
implementing the OMB guidance in 2 CFR part 182, this part supplements 
four sections of the guidance, as shown in the following table.

------------------------------------------------------------------------
                                   Section in
                                    this part            What the
  Section of OMB guidance in 2        where          supplementation
              CFR                 supplemented,         clarifies
                                      2 CFR
------------------------------------------------------------------------
(1) 182.225(a).................            Sec. Who in SSA a recipient
                                       2339.225   other than an
                                                  individual must notify
                                                  if an employee is
                                                  convicted for a
                                                  violation of a
                                                  criminal drug statute
                                                  in the workplace.
(2) 182.300(b).................            Sec. Who in SSA a recipient
                                       2339.300   who is an individual
                                                  must notify if he or
                                                  she is convicted of a
                                                  criminal drug offense
                                                  resulting from a
                                                  violation occurring
                                                  during the conduct of
                                                  any award activity.
(3) 182.500....................            Sec. Who in SSA is
                                       2339.500   authorized to
                                                  determine that a
                                                  recipient other than
                                                  an individual is in
                                                  violation of the
                                                  requirements of 2 CFR
                                                  part 182, as
                                                  implemented by this
                                                  part.
(4) 182.505....................            Sec. Who in SSA is
                                       2339.505   authorized to
                                                  determine that a
                                                  recipient who is an
                                                  individual is in
                                                  violation of the
                                                  requirements of 2 CFR
                                                  part 182, as
                                                  implemented by this
                                                  part.
------------------------------------------------------------------------

    (c) Sections of the OMB guidance that this part does not supplement. 
Our policies and procedures are the same as those in the OMB guidance 
for any section not included in the table in paragraph (b) of this 
section.

Subpart A [Reserved]



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 2339.225  Who in the Social Security Administration does a recipient other than an individual notify about a criminal drug conviction?

    A recipient other than an individual that is required under 2 CFR 
182.225(a) to notify Federal agencies about an employee's conviction for 
a criminal drug offense must notify the Commissioner of Social Security 
or designee.

Subpart C [Reserved]



         Subpart D_Responsibilities of Agency Awarding Officials



Sec. 2339.400  What method do I use as an agency awarding official to obtain a recipient's agreement to comply with the OMB guidance?

    You must include the following term or condition in the award:
    Drug-free workplace. You, as the recipient, must comply with drug-
free workplace requirements in Subpart B, which adopts the Government-
wide implementation (2 CFR part 182) of sec. 5152-5158 of the Drug-Free 
Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 
701-707).



           Subpart E_Violations of this Part and Consequences



Sec. 2339.500  Who in the Social Security Administration determines that a recipient other than an individual violated the requirements of this part?

    The Commissioner of Social Security or designee will make the 
determination.

[[Page 310]]

Subpart F [Reserved]

[[Page 311]]



        CHAPTER XXIV--DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT




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[[Page 313]]



PART 2424_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
2424.10 What does this part do?
2424.20 Does this part apply to me?
2424.30 What policies and procedures must I follow?

                            Subpart A_General

2424.137 Who in HUD may grant an exception to let an excluded person 
          participate in a covered transaction?

                     Subpart B_Covered Transactions

2424.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

2424.300 What must I do before I enter into a covered transaction with 
          another person at the next lower tier (HUD supplement to 
          governmentwide definition at 2 CFR 180.300)?
2424.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

2424.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-F [Reserved]

                          Subpart G_Suspension

2424.747 Who conducts fact finding for HUD suspensions?

                           Subpart H_Debarment

2424.842 Who conducts fact finding for HUD debarments?

                          Subpart I_Definitions

2424.952 Hearing officer.
2424.970 Nonprocurement transaction (HUD supplement to governmentwide 
          definition at 2 CFR 180.970).
2424.995 Principal (HUD supplement to governmentwide definition at 2 CFR 
          180.995).
2424.1017 Ultimate beneficiary.

                Subpart J_Limited Denial of Participation

2424.1100 What is a limited denial of participation?
2424.1105 Who may issue a limited denial of participation?
2424.1110 When may a HUD official issue a limited denial of 
          participation?
2424.1115 When does a limited denial of participation take effect?
2424.1120 How long may a limited denial of participation last?
2424.1125 How does a limited denial of participation start?
2424.1130 How may I contest my limited denial of participation?
2424.1135 Do Federal agencies coordinate limited denial of participation 
          actions?
2424.1140 What is the scope of a limited denial of participation?
2424.1145 May HUD impute the conduct of one person to another in a 
          limited denial of participation?
2424.1150 What is the effect of a suspension or debarment on a limited 
          denial of participation?
2424.1155 What is the effect of a limited denial of participation on a 
          suspension or a debarment?
2424.1160 May a limited denial of participation be terminated before the 
          term of the limited denial of participation expires?
2424.1165 How is a limited denial of participation reported?

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235.

    Source: 72 FR 73487, Dec. 27, 2007, unless otherwise noted.



Sec. 2424.10  What does this part do?

    In this part, HUD adopts, as HUD policies, procedures, and 
requirements for nonprocurement debarment and suspension, the OMB 
guidance in subparts A through I of 2 CFR part 180, as supplemented by 
this part. This adoption thereby gives regulatory effect for HUD to the 
OMB guidance, as supplemented by this part. This part satisfies the 
requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189), Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 
6101 note (Section 2455, Pub. L. 103-355, 108 Stat. 3327).



Sec. 2424.20  Does this part apply to me?

    This part and, through this part, pertinent portions of subparts A 
through I of 2 CFR part 180 (see table at 2 CFR 180.100(b)), apply to 
you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of

[[Page 314]]

``nonprocurement transaction'' at 2 CFR 180.970, as supplemented by 
Sec. 2424.970 of this part);
    (b) Respondent in a HUD suspension or debarment action;
    (c) HUD debarment or suspension official; or
    (d) HUD grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.



Sec. 2424.30  What policies and procedures must I follow?

    The HUD policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, as that section is 
supplemented by the section in this part with the same section number. 
The contracts that are covered transactions, for example, are specified 
by section 220 of the OMB guidance (i.e., 2 CFR 180.220), as 
supplemented by section 220 in this part (i.e., Sec. 2424.220). For any 
section of OMB guidance in subparts A through I of 2 CFR 180 that has no 
corresponding section in this part, HUD policies and procedures are 
those in the OMB guidance.



                            Subpart A_General



Sec. 2424.137  Who in HUD may grant an exception to let an excluded person participate in a covered transaction?

    The Secretary or designee may grant an exception permitting an 
excluded person to participate in a particular covered transaction. If 
the Secretary or a designee grants an exception, the exception must be 
in writing and state the reason(s) for deviating from the governmentwide 
policy in Executive Order 12549.



                     Subpart B_Covered Transactions



Sec. 2424.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    In addition to the contracts covered under 2 CFR 180.220(b) of the 
OMB guidance, this part applies to any contract, regardless of tier, 
that is awarded by a contractor, subcontractor, supplier, consultant, or 
its agent or representative in any transaction, if the contract is to be 
funded or provided by HUD under a covered nonprocurement transaction and 
the amount of the contract is expected to equal or exceed $25,000. This 
extends the coverage of the HUD nonprocurement suspension and debarment 
requirements to all lower tiers of subcontracts under covered 
nonprocurement transactions, as permitted under the OMB guidance at 2 
CFR 180.220(c) (see optional lower-tier coverage in the figure in the 
appendix to 2 CFR part 180).



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 2424.300  What must I do before I enter into a covered transaction 

with another person at the next lower tier (HUD supplement to governmentwide definition 
          at 2 CFR 180.300)?

    (a) You, as a participant, are responsible for determining whether 
you are entering into a covered transaction with an excluded or 
disqualified person. You may decide the method by which you do so.
    (1) You may, but are not required to, check the Excluded Parties 
List System (EPLS).
    (2) You may, but are not required to, collect a certification from 
that person.
    (b) In the case of an employment contract, HUD does not require 
employers to check the EPLS prior to making salary payments pursuant to 
that contract.



Sec. 2424.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    To communicate the requirements to lower-tier participants, you must 
include a term or condition in the transaction requiring compliance with 
subpart C of the OMB guidance in 2 CFR part 180, as supplemented by this 
subpart.

[[Page 315]]



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 2424.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant to: comply with subpart C of 2 
CFR part 180, as supplemented by subpart C of this part, and include a 
similar term or condition in lower-tier covered transactions.

Subparts E-F [Reserved]



                          Subpart G_Suspension



Sec. 2424.747  Who conducts fact finding for HUD suspensions?

    In all HUD suspensions, the official who shall conduct additional 
proceedings where disputed material facts are challenged shall be a 
hearing officer.



                           Subpart H_Debarment



Sec. 2424.842  Who conducts fact finding for HUD debarments?

    In all HUD debarments, the official who shall conduct additional 
proceedings where disputed material facts are challenged shall be a 
hearing officer.



                          Subpart I_Definitions



Sec. 2424.952  Hearing officer.

    Hearing Officer means an Administrative Law Judge or Office of 
Appeals Judge authorized by HUD's Secretary or by the Secretary's 
designee to conduct proceedings under this part.



Sec. 2424.970  Nonprocurement transaction (HUD supplement to governmentwide definition at 2 CFR 180.970).

    In the case of employment contracts that are covered transactions, 
each salary payment under the contract is a separate covered 
transaction.



Sec. 2424.995  Principal (HUD supplement to governmentwide definition at 2 CFR 180.995).

    A person who has a critical influence on, or substantive control 
over, a covered transaction, whether or not employed by the participant. 
Persons who have a critical influence on, or substantive control over, a 
covered transaction may include, but are not limited to:
    (a) Loan officers;
    (b) Staff appraisers and inspectors;
    (c) Underwriters;
    (d) Bonding companies;
    (e) Borrowers under programs financed by HUD or with loans 
guaranteed, insured, or subsidized through HUD programs;
    (f) Purchasers of properties with HUD-insured or Secretary-held 
mortgages;
    (g) Recipients under HUD assistance agreements;
    (h) Ultimate beneficiaries of HUD programs;
    (i) Fee appraisers and inspectors;
    (j) Real estate agents and brokers;
    (k) Management and marketing agents;
    (l) Accountants, consultants, investment bankers, architects, 
engineers, and attorneys who are in a business relationship with 
participants in connection with a covered transaction under a HUD 
program;
    (m) Contractors involved in the construction or rehabilitation of 
properties financed by HUD, with HUD-insured loans or acquired 
properties, including properties held by HUD as mortgagee-in-possession;
    (n) Closing agents;
    (o) Turnkey developers of projects financed by or with financing 
insured by HUD;
    (p) Title companies;
    (q) Escrow agents;
    (r) Project owners;
    (s) Administrators of hospitals, nursing homes, and projects for the 
elderly financed or insured by HUD; and
    (t) Developers, sellers, or owners of property financed with loans 
insured under Title I or Title II of the National Housing Act.

[[Page 316]]



Sec. 2424.1017  Ultimate beneficiary.

    Ultimate beneficiaries of HUD programs include, but are not limited 
to, subsidized tenants and subsidized mortgagors, such as those assisted 
under Section 8 Housing Assistance Payment contracts, by Section 236 
Rental Assistance, or by Rent Supplement payments.



                Subpart J_Limited Denial of Participation



Sec. 2424.1100  What is a limited denial of participation?

    A limited denial of participation excludes a specific person from 
participating in a specific program, or programs, within a HUD field 
office's geographic jurisdiction, for a specific period of time. A 
limited denial of participation is normally issued by a HUD field 
office, but may be issued by a Headquarters office. The decision to 
impose a limited denial of participation is discretionary and based on 
the best interests of the federal government.



Sec. 2424.1105  Who may issue a limited denial of participation?

    The Secretary designates HUD officials who are authorized to impose 
a limited denial of participation, affecting any participant and/or 
their affiliates, except mortgagees approved by the Federal Housing 
Administration (FHA).



Sec. 2424.1110  When may a HUD official issue a limited denial of participation?

    (a) An authorized HUD official may issue a limited denial of 
participation against a person, based upon adequate evidence of any of 
the following causes:
    (1) Approval of an applicant for insurance would constitute an 
unsatisfactory risk;
    (2) There are irregularities in a person's past performance in a HUD 
program;
    (3) The person has failed to maintain the prerequisites of 
eligibility to participate in a HUD program;
    (4) The person has failed to honor contractual obligations or to 
proceed in accordance with contract specifications or HUD regulations;
    (5) The person has failed to satisfy, upon completion, the 
requirements of an assistance agreement or contract;
    (6) The person has deficiencies in ongoing construction projects;
    (7) The person has falsely certified in connection with any HUD 
program, whether or not the certification was made directly to HUD;
    (8) The person has committed any act or omission that would be cause 
for debarment under 2 CFR 180.800;
    (9) The person has violated any law, regulation, or procedure 
relating to the application for financial assistance, insurance, or 
guarantee, or to the performance of obligations incurred pursuant to a 
grant of financial assistance or pursuant to a conditional or final 
commitment to insure or guarantee;
    (10) The person has made or procured to be made any false statement 
for the purpose of influencing in any way an action of the Department; 
or
    (11) Imposition of a limited denial of participation by any other 
HUD office.
    (b) Filing of a criminal Indictment or Information shall constitute 
adequate evidence for the purpose of limited denial of participation 
actions. The Indictment or Information need not be based on offenses 
against HUD.
    (c) Imposition of a limited denial of participation by any other HUD 
office shall constitute adequate evidence for a concurrent limited 
denial of participation. Where such a concurrent limited denial of 
participation is imposed, participation may be restricted on the same 
basis without the need for an additional conference or further hearing.
    (d) An affiliate or organizational element may be included in a 
limited denial of participation solely on the basis of its affiliation, 
and regardless of its knowledge of or participation in the acts 
providing cause for the sanction. The burden of proving that a 
particular affiliate or organizational element is currently responsible 
and not controlled by the primary sanctioned party (or by an entity that 
itself is controlled by the primary sanctioned party) is on the 
affiliate or organizational element.

[[Page 317]]



Sec. 2424.1115  When does a limited denial of participation take effect?

    A limited denial of participation is effective immediately upon 
issuance of the notice.



Sec. 2424.1120  How long may a limited denial of participation last?

    A limited denial of participation may remain in effect up to 12 
months.



Sec. 2424.1125  How does a limited denial of participation start?

    A limited denial of participation is made effective by providing the 
person, and any specifically named affiliate, with notice:
    (a) That the limited denial of participation is being imposed;
    (b) Of the cause(s) under Sec. 2424.1110 for the sanction;
    (c) Of the potential effect of the sanction, including the length of 
the sanction and the HUD program(s) and geographic area affected by the 
sanction;
    (d) Of the right to request, in writing, within 30 days of receipt 
of the notice, a conference under Sec. 2424.1130; and
    (e) Of the right to contest the limited denial of participation 
under Sec. 2424.1130.



Sec. 2424.1130  How may I contest my limited denial of participation?

    (a) Within 30 days after receiving a notice of limited denial of 
participation, you may request a conference with the official who issued 
such notice. The conference shall be held within 15 days after the 
Department's receipt of the request for a conference, unless you waive 
this time limit. The official or designee who imposed the sanction shall 
preside. At the conference, you may appear with a representative and may 
present all relevant information and materials to the official or 
designee. Within 20 days after the conference, or within 20 days after 
any agreed-upon extension of time for submission of additional 
materials, the official or designee shall, in writing, advise you of the 
decision to terminate, modify, or affirm the limited denial of 
participation. If all or a portion of the remaining period of exclusion 
is affirmed, the notice of affirmation shall advise you of the 
opportunity to contest the notice and to request a hearing before a 
Departmental Hearing Officer. You have 30 days after receipt of the 
notice of affirmation to request this hearing. If the official or 
designee does not issue a decision within the 20-day period, you may 
contest the sanction before a Departmental Hearing Officer. Again, you 
have 30 days from the expiration of the 20-day period to request this 
hearing. If you request a hearing before the Departmental Hearing 
Officer, you must submit your request to the Debarment Docket Clerk, 
Department of Housing and Urban Development, 451 Seventh Street, SW., B-
133 Portals 200, Washington DC 20410-0500.
    (b) You may skip the conference with the official and you may 
request a hearing before a Departmental Hearing Officer. This must also 
be done within 30 days after receiving a notice of limited denial of 
participation. If you opt to have a hearing before a Departmental 
Hearing Officer, you must submit your request to the Debarment Docket 
Clerk, Department of Housing and Urban Development, 451 Seventh Street, 
SW., B-133 Portals 200, Washington DC 20410-0500. The hearing before the 
Departmental Hearing Officer is more formal than the conference before 
the sanctioning official described above. The Departmental Hearing 
Officer will conduct the hearing in accordance with 24 CFR part 26, 
subpart A. The Departmental Hearing Officer will issue findings of fact 
and make a recommended decision. The sanctioning official will then make 
a final decision, as promptly as possible, after the Departmental 
Hearing Officer's recommended decision is issued. The sanctioning 
official may reject the recommended decision or any findings of fact, 
only after specifically determining that the decision or any of the 
facts are arbitrary, capricious, or clearly erroneous.
    (c) In deciding whether to terminate, modify, or affirm a limited 
denial of participation, the Departmental official or designee may 
consider the factors listed at 2 CFR 180.860. The Departmental Hearing 
Officer may also consider the factors listed at 2 CFR 180.860 in making 
any recommended decision.

[[Page 318]]



Sec. 2424.1135  Do Federal agencies coordinate limited denial of participation actions?

    Federal agencies do not coordinate limited denial of participation 
actions. As stated in Sec. 2424.1100, a limited denial of participation 
is a HUD-specific action and applies only to HUD activities.



Sec. 2424.1140  What is the scope of a limited denial of participation?

    The scope of a limited denial of participation is as follows:
    (a) A limited denial of participation generally extends only to 
participation in the program under which the cause arose. A limited 
denial of participation may, at the discretion of the authorized 
official, extend to other programs, initiatives, or functions within the 
jurisdiction of an Assistant Secretary. The authorized official, 
however, may determine that where the sanction is based on an indictment 
or conviction, the sanction shall apply to all programs throughout HUD.
    (b) For purposes of this subpart, participation includes receipt of 
any benefit or financial assistance through grants or contractual 
arrangements; benefits or assistance in the form of loan guarantees or 
insurance; and awards of procurement contracts.
    (c) The sanction may be imposed for a period not to exceed 12 
months, and shall be effective within the geographic jurisdiction of the 
office imposing it, unless the sanction is imposed by an Assistant 
Secretary or Deputy Assistant Secretary, in which case the sanction may 
be imposed on either a nationwide or a more restricted basis.



Sec. 2424.1145  May HUD impute the conduct of one person to another in a limited denial of participation?

    For purposes of determining a limited denial of participation, HUD 
may impute conduct as follows:
    (a) Conduct imputed from an individual to an organization. HUD may 
impute the fraudulent, criminal, or other improper conduct of any 
officer, director, shareholder, partner, employee, or other individual 
associated with an organization, to that organization when the improper 
conduct occurred in connection with the individual's performance of 
duties for or on behalf of that organization, or with the organization's 
knowledge, approval, or acquiescence. The organization's acceptance of 
the benefits derived from the conduct is evidence of knowledge, 
approval, or acquiescence.
    (b) Conduct imputed from an organization to an individual or between 
individuals. HUD may impute the fraudulent, criminal, or other improper 
conduct of any organization to an individual, or from one individual to 
another individual, if the individual to whom the improper conduct is 
imputed participated in, had knowledge of, or had reason to know of the 
improper conduct.
    (c) Conduct imputed from one organization to another organization. 
HUD may impute the fraudulent, criminal, or other improper conduct of 
one organization to another organization when the improper conduct 
occurred in connection with a partnership, joint venture, joint 
application, association, or similar arrangement, or when the 
organization to whom the improper conduct is imputed has the power to 
direct, manage, control, or influence the activities of the organization 
responsible for the improper conduct. Acceptance of the benefits derived 
from the conduct is evidence of knowledge, approval, or acquiescence.



Sec. 2424.1150  What is the effect of a suspension or debarment on a limited denial of participation?

    If you have submitted a request for a hearing pursuant to Sec. 
2424.1130 of this subpart, and you also receive, pursuant to subpart G 
or H of this part, a notice of proposed debarment or suspension that is 
based on the same transaction(s) or the same conduct as the limited 
denial of participation, as determined by the debarring or suspending 
official, the following rules shall apply:
    (a) During the 30-day period after you receive a notice of proposed 
debarment or suspension, during which you may elect to contest the 
debarment under 2 CFR 180.815, or the suspension pursuant to 2 CFR 
180.720, all proceedings in the limited denial of participation, 
including discovery, are automatically stayed.

[[Page 319]]

    (b) If you do not contest the proposed debarment pursuant to 2 CFR 
180.815, or the suspension pursuant to 2 CFR 180.720, the final 
imposition of the debarment or suspension shall also constitute a final 
decision with respect to the limited denial of participation, to the 
extent that the debarment or suspension is based on the same 
transaction(s) or conduct as the limited denial of participation.
    (c) If you contest the proposed debarment pursuant to 2 CFR 180.815, 
or the suspension pursuant to 2 CFR 180.720, then:
    (1) Those parts of the limited denial of participation and the 
debarment or suspension based on the same transaction(s) or conduct, as 
determined by the debarring or suspending official, shall be immediately 
consolidated before the debarring or suspending official;
    (2) Proceedings under the consolidated portions of the limited 
denial of participation shall be stayed before the hearing officer until 
the suspending or debarring official makes a determination as to whether 
the consolidated matters should be referred to a hearing officer. Such a 
determination must be made within 90 days of the date of the issuance of 
the suspension or proposed debarment, unless the suspending/debarring 
official extends the period for good cause.
    (i) If the suspending or debarring official determines that there is 
a genuine dispute as to material facts regarding the consolidated 
matter, the entire consolidated matter will be referred to the hearing 
officer hearing the limited denial of participation, for additional 
proceedings pursuant to 2 CFR 180.750 or 180.845.
    (ii) If the suspending or debarring official determines that there 
is no dispute as to material facts regarding the consolidated matter, 
jurisdiction of the hearing officer under 2 CFR part 2424, subpart J, to 
hear those parts of the limited denial of participation based on the 
same transaction[s] or conduct as the debarment or suspension, as 
determined by the debarring or suspending official, will be transferred 
to the debarring or suspending official, and the hearing officer 
responsible for hearing the limited denial of participation shall 
transfer the administrative record to the debarring or suspending 
official.
    (3) The suspending or debarring official shall hear the entire 
consolidated case under the procedures governing suspensions and 
debarments, and shall issue a final decision as to both the limited 
denial of participation and the suspension or debarment.



Sec. 2424.1155  What is the effect of a limited denial of participation on a suspension or a debarment?

    The imposition of a limited denial of participation does not affect 
the right of the Department to suspend or debar any person under this 
part.



Sec. 2424.1160  May a limited denial of participation be terminated before the term of the limited denial of participation expires?

    If the cause for the limited denial of participation is resolved 
before the expiration of the 12-month period, the official who imposed 
the sanction may terminate it.



Sec. 2424.1165  How is a limited denial of participation reported?

    When a limited denial of participation has been made final, or the 
period for requesting a conference pursuant to Sec. 2424.1130 has 
expired without receipt of such a request, the official imposing the 
limited denial of participation shall notify the Director of the 
Compliance Division in the Departmental Enforcement Center of the scope 
of the limited denial of participation.

[[Page 321]]



                CHAPTER XXV--NATIONAL SCIENCE FOUNDATION




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PART 2520_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
2520.10 What does this part do?
2520.20 Does this part apply to me?
2520.30 What policies and procedures must I follow?

                            Subpart A_General

2520.137 Who in NSF may grant an exception to let an excluded person 
          participate in a covered transaction?

                     Subpart B_Covered Transactions

2520.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

2520.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

2520.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-I [Reserved]

    Authority: 42 U.S.C. 1870(a); Sec. 2455, Pub. L. 103-355, 108 Stat. 
3327; E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 
Comp., p. 235.

    Source: 72 FR 4944, Feb. 2, 2007, unless otherwise noted.



Sec. 2520.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the NSF policies and procedures for nonprocurement debarment and 
suspension. It thereby gives regulatory effect for NSF to the OMB 
guidance as supplemented by this part. This part satisfies the 
requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189), Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 
6101 note (Section 2455, Public Law 103-355, 108 Stat. 3327).



Sec. 2520.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
Subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970).
    (b) Respondent in an NSF suspension or debarment action.
    (c) NSF debarment or suspension official.
    (d) NSF grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.



Sec. 2520.30  What policies and procedures must I follow?

    The NSF policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, as that section is 
supplemented by the section in this part with the same section number. 
The contracts that are covered transactions, for example, are specified 
by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented 
by section 220 in this part (i.e., Sec. 2520.220). For any section of 
OMB guidance in subparts A through I of 2 CFR 180 that has no 
corresponding section in this part, NSF policies and procedures are 
those in the OMB guidance.



                            Subpart A_General



Sec. 2520.137  Who in NSF may grant an exception to let an excluded person participate in a covered transaction?

    The NSF Director and the Deputy Director have the authority to grant 
an exception to let an excluded person participate in a covered 
transaction.

[[Page 324]]



                     Subpart B_Covered Transactions



Sec. 2520.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see optional lower tier coverage in the figure in 
the appendix to 2 CFR part 180), NSF does not extend coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts under a covered nonprocurement transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 2520.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180, as supplemented by this subpart.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 2520.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-I [Reserved]

[[Page 325]]



       CHAPTER XXVI--NATIONAL ARCHIVES AND RECORDS ADMINISTRATION




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PART 2600_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
2600.10 What does this part do?
2600.20 Does this part apply to me?
2600.30 What policies and procedures must I follow?

                            Subpart A_General

2600.137 Who in NARA may grant an exception to let an excluded person 
          participate in a covered transaction?

                     Subpart B_Covered Transactions

2600.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

2600.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

2600.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-J [Reserved]

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 44 
U.S.C. 2104(a).

    Source: 72 FR 2768, Jan. 23, 2007, unless otherwise noted.



Sec. 2600.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as NARA's policies and procedures for nonprocurement debarment and 
suspension. It thereby gives regulatory effect for NARA to the OMB 
guidance as supplemented by this part. This part satisfies the 
requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189), Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 
6101 note (Section 2455, Pub. L. 103-355, 108 Stat. 3327).



Sec. 2600.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970.
    (b) Respondent in a NARA suspension or debarment action.
    (c) NARA debarment or suspension official;
    (d) NARA grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction;



Sec. 2600.30  What policies and procedures must I follow?

    NARA policies and procedures that you must follow are the policies 
and procedures specified in each applicable section of the OMB guidance 
in subparts A through I of 2 CFR part 180, as that section is 
supplemented by the section in this part with the same section number. 
The contracts that are covered transactions, for example, are specified 
by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented 
by section 220 in this part (i.e., Sec. 2600.220). For any section of 
OMB guidance in subparts A through I of 2 CFR 180 that has no 
corresponding section in this part, NARA policies and procedures are 
those in the OMB guidance.



                            Subpart A_General



Sec. 2600.137  Who in NARA may grant an exception to let an excluded person participate in a covered transaction?

    The Archivist of the United States or designee may grant an 
exception permitting an excluded person to participate in a particular 
covered transaction as provided in the OMB guidance at 2 CFR 180.135.

[[Page 328]]



                     Subpart B_Covered Transactions



Sec. 2600.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see optional lower tier coverage in the figure in 
the appendix to 2 CFR part 180), NARA does not extend coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts under a covered nonprocurement transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 2600.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 2600.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180 and requires the participant to include a similar term or 
condition in lower-tier covered transactions.

Subparts E-J [Reserved]

[[Page 329]]



              CHAPTER XXVII--SMALL BUSINESS ADMINISTRATION




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[[Page 331]]



PART 2700_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
2700.10 What does this part do?
2700.20 Does this part apply to me?
2700.30 What policies and procedures must I follow?

                            Subpart A_General

2700.137 Who in the Small Business Administration may grant an exception 
          to let an excluded person participate in a covered 
          transaction?

                     Subpart B_Covered Transactions

2700.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

2700.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

2700.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-F [Reserved]

                          Subpart G_Suspension

2700.765 How may I appeal my suspension?

                           Subpart H_Debarment

2700.890 How may I appeal my debarment?

                          Subpart I_Definitions

2700.930 Debarring official (SBA supplement to government-wide 
          definition at 2 CFR 180.930).
2700.995 Principal (SBA supplement to government-wide definition at 2 
          CFR 180.995).
2700.1010 Suspending official (SBA supplement to government-wide 
          definition at 2 CFR 180.1010).

Subpart J [Reserved]

    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, 1986 Comp., p. 235); 15 U.S.C. 634(b)(6).

    Source: 72 FR 39728, July 20, 2007, unless otherwise noted.



Sec. 2700.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the SBA policies and procedures for nonprocurement debarment and 
suspension. It thereby gives regulatory effect for SBA to the OMB 
guidance as supplemented by this part. This part satisfies the 
requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189); Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235); and section 
2455 of the Federal Acquisition Streamlining Act of 1994, Pub. L. 103-
355 (31 U.S.C. 6101 note).



Sec. 2700.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970);
    (b) Respondent in an SBA suspension or debarment action;
    (c) SBA debarment or suspension official; or
    (d) SBA grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.



Sec. 2700.30  What policies and procedures must I follow?

    The SBA policies and procedures you must follow are the policies and 
procedures specified in each applicable section of the OMB guidance in 
subparts A through I of 2 CFR part 180, as that section is supplemented 
by the section in this part with the same section number. The contracts 
that are covered transactions, for example, are specified by section 220 
of the OMB guidance (i.e., 2 CFR 180.220) as supplemented by section 220 
of this part (i.e., Sec. 2700.220). For any section of OMB guidance in 
subparts A through I of 2 CFR 180 that

[[Page 332]]

has no corresponding section in this part, SBA policies and procedures 
are those in the OMB guidance.



                            Subpart A_General



Sec. 2700.137  Who in the Small Business Administration may grant an exception to let an excluded person participate in a covered transaction?

    The Director of the Office of Credit Risk Management may grant an 
exception permitting an excluded person to participate in a particular 
covered transaction under SBA's financial assistance programs. For all 
other Agency programs, the Associate General Counsel for Procurement Law 
may grant such an exception.

[72 FR 39728, July 20, 2007, as amended at 73 FR 43348, July 25, 2008]



                     Subpart B_Covered Transactions



Sec. 2700.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    In addition to the contracts covered under 2 CFR 180.22(b) of the 
OMB guidance, this part applies to any contract, regardless of tier, 
that is awarded by a contractor, subcontractor, supplier, consultant, or 
its agent or representative in any transaction, if the contract is to be 
funded or provided by the SBA under a covered nonprocurement transaction 
and the amount of the contract is expected to equal or exceed $25,000. 
This extends the coverage of the SBA nonprocurement suspension and 
debarment requirements to all lower tiers of subcontracts under covered 
nonprocurement transactions, as permitted under the OMB guidance at 2 
CFR 180.200(c) (see optional lower tier coverage in the figure in the 
appendix to 2 CFR part 180)



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 2700.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You, as a participant, must include a term or condition in lower-
tier transactions requiring lower-tier participants to comply with 
subpart C of the OMB guidance in 2 CFR part 180, as supplemented by this 
part.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 2700.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-F [Reserved]



                          Subpart G_Suspension



Sec. 2700.765  How may I appeal my suspension?

    (a) If the SBA suspending official issues a decision under Sec. 
180.755 to continue your suspension after you present information in 
opposition to that suspension under Sec. 180.720, you may ask for 
review of the suspending official's decision in two ways:
    (1) You may ask the suspending official to reconsider the decision 
for material errors of fact or law that you believe will change the 
outcome of the matter; or
    (2) You may request that the SBA Office of Hearings and Appeals 
(OHA) review the suspending official's decision to continue your 
suspension within 30 days of your receipt of the suspending official's 
decision under Sec. 180.755 or paragraph (a)(1) of this section. 
However, OHA may reverse the suspending official's decision only where 
OHA finds that the decision is based on a clear error of material fact 
or law, or where OHA finds that the suspending official's decision was 
arbitrary, capricious, or an abuse of discretion. You may appeal the 
suspending official's decision without requesting reconsideration, or 
you may appeal the decision

[[Page 333]]

of the suspending official on reconsideration. The procedures governing 
OHA appeals are set forth in 13 CFR part 134.
    (b) A request for review under this section must be in writing; 
state the specific findings you believe to be in error; and include the 
reasons or legal bases for your position.
    (c) OHA, in its discretion, may stay the suspension pending review 
of the suspending official's decision.
    (d) The SBA suspending official and OHA must notify you of their 
decision under this section, in writing, using the notice procedures set 
forth at Sec. Sec. 180.615 and 180.975.



                           Subpart H_Debarment



Sec. 2700.890  How may I appeal my debarment?

    (a) If the SBA debarring official issues a decision under Sec. 
180.870 to debar you after you present information in opposition to a 
proposed debarment under Sec. 180.815, you may ask for review of the 
debarring official's decision in two ways:
    (1) You may ask the debarring official to reconsider the decision 
for material errors of fact or law that you believe will change the 
outcome of the matter; or
    (2) You may request that the SBA Office of Hearings and Appeals 
(OHA) review the debarring official's decision to debar you within 30 
days of your receipt of the debarring official's decision under Sec. 
180.870 or paragraph (a)(1) of this section. However, OHA may reverse 
the debarring official's decision only where OHA finds that the decision 
is based on a clear error of material fact or law, or where OHA finds 
that the debarring official's decision was arbitrary, capricious, or an 
abuse of discretion. You may appeal the debarring official's decision 
without requesting reconsideration, or you may appeal the decision of 
the debarring official on reconsideration. The procedures governing OHA 
appeals are set forth in 13 CFR part 134.
    (b) A request for review under this section must be in writing; 
state the specific findings you believe to be in error; and include the 
reasons or legal bases for your position.
    (c) OHA, in its discretion, may stay the debarment pending review of 
the debarring official's decision.
    (d) The SBA debarring official and OHA must notify you of their 
decision under this section, in writing, using the notice procedures set 
forth at Sec. Sec. 180.615 and 180.975.



                          Subpart I_Definitions



Sec. 2700.930  Debarring official (SBA supplement to government-wide definition at 2 CFR 180.930).

    For SBA, the debarring official for financial assistance programs is 
the Director of the Office of Credit Risk Management; for all other 
programs, the debarring official is the Associate General Counsel for 
Procurement Law.

[72 FR 39728, July 20, 2007, as amended at 73 FR 43348, July 25, 2008]



Sec. 2700.995  Principal (SBA supplement to government-wide definition at 2 CFR 180.995).

    Principal means--
    (a) Other examples of individuals who are principals in SBA covered 
transactions include:
    (1) Principal investigators.
    (2) Securities brokers and dealers under the section 7(a) Loan, 
Certified Development Company (CDC) and Small Business Investment 
Company (SBIC) programs.
    (3) Applicant representatives under the section 7(a) Loan, CDC, 
SBIC, Small Business Development Center (SBDC), and section 7(j) 
programs.
    (4) Providers of professional services under the section 7(a) Loan, 
CDC, SBIC, SBDC, and section 7(j) programs.
    (5) Individuals that certify, authenticate or authorize billings.
    (b) [Reserved]



Sec. 2700.1010  Suspending official (SBA supplement to government-wide definition at 2 CFR 180.1010).

    For SBA, the suspending official for financial assistance programs 
is the Director of the Office of Credit Risk Management; for all other 
programs, the suspending official is the Associate General Counsel for 
Procurement Law.

[72 FR 39728, July 20, 2007, as amended at 73 FR 43348, July 25, 2008]

[[Page 334]]

Subpart J [Reserved]

[[Page 335]]



                  CHAPTER XXVIII--DEPARTMENT OF JUSTICE




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[[Page 337]]



PART 2867_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
2867.10 What does this part do?
2867.20 To whom does this part apply?
2867.30 What policies and procedures must be followed?

                            Subpart A_General

2867.137 Who in the Department of Justice may grant an exception to let 
          an excluded person participate in a covered transaction?

                     Subpart B_Covered Transactions

2867.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

2867.332 What method must a participant use to pass requirements down to 
          participants at lower tiers with whom the participant intends 
          to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

2867.437 What method must be used to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-J [Reserved]

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 5 U.S.C. 
301; 28 U.S.C. 509, 510, 515-519.

    Source: 72 FR 11286, Mar. 13, 2007, unless otherwise noted.



Sec. 2867.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Department of Justice policies and procedures for nonprocurement 
debarment and suspension. It thereby gives regulatory effect for the 
Department of Justice to the OMB guidance as supplemented by this part. 
This part satisfies the requirements in section 3 of Executive Order 
12549, ``Debarment and Suspension'' (3 CFR 1986 Comp., p. 189), 
Executive Order 12689, ``Debarment and Suspension'' (3 CFR 1989 Comp., 
p. 235) and 31 U.S.C. 6101 note (Section 2455, Pub. L. 103-355, 108 
Stat. 3327).



Sec. 2867.20  To whom does this part apply?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to any--
    (a) Participant or principal in a ``covered transaction'' (sees 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970 (as supplemented by subpart B of this 
part));
    (b) Respondent in a Department of Justice suspension or debarment 
action;
    (c) Department of Justice debarment or suspension official;
    (d) Department of Justice grants officer, agreements officer, or 
other official authorized to enter into any type of nonprocurement 
transaction that is a covered transaction.



Sec. 2867.30  What policies and procedures must be followed?

    The Department of Justice policies and procedures that must be 
followed are the policies and procedures specified in each applicable 
section of the OMB guidance in subparts A through I of 2 CFR part 180, 
as that section is supplemented by the section in this part with the 
same section number. The contracts that are covered transactions, for 
example, are specified by section 220 of the OMB guidance (i.e., 2 CFR 
180.220) as supplemented by section 220 in this part (i.e., Sec. 
2867.220). For any section of OMB guidance in subparts A through I of 2 
CFR 180 that has no corresponding section in this part, Department of 
Justice policies and procedures are those in the OMB guidance.



                            Subpart A_General



Sec. 2867.137  Who in the Department of Justice may grant an exception to let an excluded person participate in a covered transaction?

    Within the Department of Justice, the Attorney General or designee 
has the authority to grant an exception to let an excluded person 
participate in a

[[Page 338]]

covered transaction, as provided in the OMB guidance at 2 CFR 180.135.



                     Subpart B_Covered Transactions



Sec. 2867.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see optional lower tier coverage in the figure in 
the appendix to 2 CFR part 180), the Department of Justice does not 
extend coverage of nonprocurement suspension and debarment requirements 
beyond first-tier procurement contracts under a covered nonprocurement 
transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 2867.332  What method must a participant use to pass requirements down

to participants at lower tiers with whom the participant intends to do business?

    A participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180, as supplemented by this subpart.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 2867.437  What method must be used to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, the communication must include a term or 
condition in the transaction that requires the participant's compliance 
with subpart C of 2 CFR part 180, as supplemented by subpart C of this 
part, and requires the participant to include a similar term or 
condition in lower-tier covered transactions.

Subparts E-J [Reserved]

[[Page 339]]



              CHAPTER XXX--DEPARTMENT OF HOMELAND SECURITY




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[[Page 341]]



PART 3000_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
3000.10 What does this part do?
3000.20 Does this part apply to me?
3000.30 What policies and procedures must I follow?

                            Subpart A_General

3000.137 Who in the Department of Homeland Security may grant an 
          exception to let an excluded person participate in a covered 
          transaction?

                     Subpart B_Covered Transactions

3000.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

3000.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

Subpart D_Responsibilities of Department of Homeland Security Officials 
                         Regarding Transactions

3000.437 What method do I use to communicate to a participant the 
          requirements described in the Office of Management and Budget 
          guidance at 2 CFR 180.435?

Subpart E-I [Reserved]

    Authority: Sec. 2455, Public Law 103-355, 108 Stat. 3327; E.O. 
12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 
Public Law 107-296, 116 Stat. 2135.

    Source: 74 FR 34497, July 16, 2009, unless otherwise noted.



Sec. 3000.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Department of Homeland Security policies and procedures for 
nonprocurement debarment and suspension. It thereby gives regulatory 
effect for the Department of Homeland Security to the OMB guidance as 
supplemented by this part. This part satisfies the requirements in 
section 3 of Executive Order 12549, ``Debarment and Suspension'' (3 CFR 
1986 Comp., p. 189), Executive Order 12689, ``Debarment and Suspension'' 
(3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Pub. 
L. 103-355, 108 Stat. 3327).



Sec. 3000.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970);
    (b) Respondent in a Department of Homeland Security suspension or 
debarment action;
    (c) Department of Homeland Security debarment or suspension 
official;
    (d) Department of Homeland Security grants officer, agreements 
officer, or other official authorized to enter into any type of 
nonprocurement transaction that is a covered transaction.



Sec. 3000.30  What policies and procedures must I follow?

    The Department of Homeland Security policies and procedures that you 
must follow are the policies and procedures specified in each applicable 
section of the OMB guidance in subparts A through I of 2 CFR part 180, 
as that section is supplemented by the section in this part with the 
same section number. The contracts that are covered transactions, for 
example, are specified by section 220 of the OMB guidance (i.e., 2 CFR 
180.220) as supplemented by section 220 in this part (i.e., Sec. 
3000.220). For any section of OMB guidance in subparts A through I of 2 
CFR part 180 that has no corresponding section in this part, Department 
of Homeland Security policies and procedures are those in the OMB 
guidance.



                            Subpart A_General



Sec. 3000.137  Who in the Department of Homeland Security may grant an exception to let an excluded person participate in a covered transaction?

    Within the Department of Homeland Security, the Secretary of 
Homeland Security has delegated the authority

[[Page 342]]

to grant an exception to let an excluded person participate in a covered 
transaction to the Head of the Contracting Activity for each DHS 
component as provided in the OMB guidance at 2 CFR 180.135.



                     Subpart B_Covered Transactions



Sec. 3000.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Department of Homeland Security extends coverage of nonprocurement 
suspension and debarment requirements beyond first-tier procurement 
contracts under a covered nonprocurement transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 3000.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant in a covered transaction must include a term or 
condition in any lower-tier covered transaction into which you enter, to 
require the participant of that transaction to--
    (a) Comply with subpart C of the OMB guidance in 2 CFR part 180; and
    (b) Include a similar term or condition in any covered transaction 
into which it enters at the next lower tier.



Subpart D_Responsibilities of Department of Homeland Security Officials 
                         Regarding Transactions



Sec. 3000.437  What method do I use to communicate to a participant the

requirements described in the Office of Management and Budget guidance at 2 CFR 
          180.435?

    You as a DHS component official must include a term or condition in 
each covered transaction into which you enter, to communicate to the 
participant the requirements to--
    (a) Comply with subpart C of the OMB guidance in 2 CFR part 180; and
    (b) Include a similar term or condition in any lower-tier covered 
transactions into which the participant enters.

Subparts E-I [Reserved]

[[Page 343]]



         CHAPTER XXXI--INSTITUTE OF MUSEUM AND LIBRARY SERVICES




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3186            Requirements for drug-free workplace 
                    (financial assistance)..................         346

[[Page 345]]



PART 3185_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
3185.10 What does this part do?
3185.20 Does this part apply to me?
3185.30 What policies and procedures must I follow?

                            Subpart A_General

3185.137 Who in IMLS may grant an exception to let an excluded person 
          participate in a covered transaction?

                     Subpart B_Covered Transactions

3185.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

3185.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

3185.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-I [Reserved]

    Authority: 20 U.S.C. 9103(f); Sec. 2455, Pub. L. 103-355, 108 Stat. 
3327; E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 
Comp., p. 235.

    Source: 73 FR 46529, Aug. 11, 2008, unless otherwise noted.



Sec. 3185.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Institute of Museum and Library Services (IMLS) policies and 
procedures for nonprocurement debarment and suspension. It thereby gives 
regulatory effect for IMLS to the OMB guidance as supplemented by this 
part. This part satisfies the requirements in section 3 of Executive 
Order 12549, ``Debarment and Suspension'' (3 CFR 1986 Comp., p. 189), 
Executive Order 12689, ``Debarment and Suspension'' (3 CFR 1989 Comp., 
p. 235) and 31 U.S.C. 6101 note (Section 2455, Pub. L. 103-355, 108 
Stat. 3327).



Sec. 3185.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970.
    (b) Respondent in an IMLS suspension or debarment action.
    (c) IMLS debarment or suspension official;
    (d) IMLS grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.



Sec. 3185.30  What policies and procedures must I follow?

    The IMLS policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, as that section is 
supplemented by the section in this part with the same section number. 
The contracts that are covered transactions, for example, are specified 
by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented 
by section 220 in this part (i.e., Sec. 3185.220). For any section of 
OMB guidance in subparts A through I of 2 CFR 180 that has no 
corresponding section in this part, IMLS policies and procedures are 
those in the OMB guidance.



                            Subpart A_General



Sec. 3185.137  Who in the IMLS may grant an exception to let an excluded person participate in a covered transaction?

    The IMLS Director has the authority to grant an exception to let an 
excluded person participate in a covered transaction, as provided in the 
OMB guidance at 2 CFR 180.135.

[[Page 346]]



                     Subpart B_Covered Transactions



Sec. 3185.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see optional lower-tier coverage in the figure in 
the appendix to 2 CFR part 180), IMLS does not extend coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts under a covered nonprocurement transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 3185.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180, as supplemented by this subpart.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 3185.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-I [Reserved]



PART 3186_REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE)--Table of Contents



Sec.
3186.10 What does this part do?
3186.20 Does this part apply to me?
3186.30 What policies and procedures must I follow?

Subpart A--Purpose and Coverage [Reserved]

      Subpart B_Requirements for Recipients Other Than Individuals

3186.225 Whom in the IMLS does a recipient other than an individual 
          notify about a criminal drug conviction?

        Subpart C_Requirements for Recipients Who Are Individuals

3186.300 Whom in the IMLS does a recipient who is an individual notify 
          about a criminal drug conviction?

         Subpart D_Responsibilities of Agency Awarding Officials

3186.400 What method do I use as an agency awarding official to obtain a 
          recipient's agreement to comply with the OMB guidance?

           Subpart E_Violations of this Part and Consequences

3186.500 Who in the IMLS determines that a recipient other than an 
          individual violated the requirements of this part?
3186.505 Who in the IMLS determines that a recipient who is an 
          individual violated the requirements of this part?

    Authority: 41 U.S.C. 701-707.

    Source: 75 FR 39134, July 8, 2010, unless otherwise noted.



Sec. 3186.10  What does this part do?

    This part requires that the award and administration of IMLS grants 
and cooperative agreements comply with Office of Management and Budget 
(OMB) guidance implementing the portion of the Drug-Free Workplace Act 
of 1988 (41 U.S.C. 701-707, as amended, hereafter referred to as ``the 
Act'') that applies to grants. It thereby--
    (a) Gives regulatory effect to the OMB guidance (subparts A through 
F of 2 CFR part 182) for the IMLS's grants and cooperative agreements; 
and

[[Page 347]]

    (b) Establishes IMLS policies and procedures for compliance with the 
Act that are the same as those of other Federal agencies, in conformance 
with the requirement in 41 U.S.C. 705 for Governmentwide implementing 
regulations.



Sec. 3186.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through F of 2 CFR part 182 (see table at 2 CFR 
182.115(b)) apply to you if you are a--
    (a) Recipient of an IMLS grant or cooperative agreement; or
    (b) IMLS awarding official.



Sec. 3186.30  What policies and procedures must I follow?

    (a) General. You must follow the policies and procedures specified 
in applicable sections of the OMB guidance in subparts A through F of 2 
CFR part 182, as implemented by this part.
    (b) Specific sections of OMB guidance that this part supplements. In 
implementing the OMB guidance in 2 CFR part 182, this part supplements 
four sections of the guidance, as shown in the following table. For each 
of those sections, you must follow the policies and procedures in the 
OMB guidance, as supplemented by this part.

----------------------------------------------------------------------------------------------------------------
                                                Section in this
            Section of OMB guidance                part where           What the supplementation clarifies
                                                  supplemented
----------------------------------------------------------------------------------------------------------------
(1) 2 CFR 182.225(a)..........................  Sec.  3186.225  Whom in the IMLS a recipient other than an
                                                                  individual must notify if an employee is
                                                                  convicted for a violation of a criminal drug
                                                                  statute in the workplace.
(2) 2 CFR 182.300(b)..........................  Sec.  3186.300  Whom in the IMLS a recipient who is an
                                                                  individual must notify if he or she is
                                                                  convicted of a criminal drug offense resulting
                                                                  from a violation occurring during the conduct
                                                                  of any award activity.
(3) 2 CFR 182.500.............................  Sec.  3186.500  Who in the IMLS is authorized to determine that
                                                                  a recipient other than an individual is in
                                                                  violation of the requirements of 2 CFR part
                                                                  182, as implemented by this part.
(4) 2 CFR 182.505.............................  Sec.  3186.505  Who in the IMLS is authorized to determine that
                                                                  a recipient who is an individual is in
                                                                  violation of the requirements of 2 CFR part
                                                                  182, as implemented by this part.
----------------------------------------------------------------------------------------------------------------

    (c) Sections of the OMB guidance that this part does not supplement. 
For any section of OMB guidance in subparts A through F of 2 CFR part 
182 that is not listed in paragraph (b) of this section, IMLS policies 
and procedures are the same as those in the OMB guidance.

Subpart A--Purpose and Coverage [Reserved]



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 3186.225  Whom in the IMLS does a recipient other than an individual notify about a criminal drug conviction?

    A recipient other than an individual that is required under 2 CFR 
182.225(a) to notify Federal agencies about an employee's conviction for 
a criminal drug offense must notify each IMLS office from which it 
currently has an award.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 3186.300  Whom in the IMLS does a recipient who is an individual notify about a criminal drug conviction?

    A recipient who is an individual and is required under 2 CFR 
182.300(b) to notify Federal agencies about a conviction for a criminal 
drug offense must notify each IMLS office from which it currently has an 
award.



         Subpart D_Responsibilities of Agency Awarding Officials



Sec. 3186.400  What method do I use as an agency awarding official to obtain a recipient's agreement to comply with the OMB guidance?

    To obtain a recipient's agreement to comply with applicable 
requirements in the OMB guidance at 2 CFR part 182, you must include the 
following term or condition in the award:

[[Page 348]]

    Drug-free workplace. You as the recipient must comply with drug-free 
workplace requirements in Subpart B (or Subpart C, if the recipient is 
an individual) of 2 CFR part 3186, which adopts the Governmentwide 
implementation (2 CFR part 182) of sec. 5152-5158 of the Drug-Free 
Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 
701-707).



           Subpart E_Violations of this Part and Consequences



Sec. 3186.500  Who in the IMLS determines that a recipient other than an individual violated the requirements of this part?

    The IMLS Chief Financial Officer is the official authorized to make 
the determination under 2 CFR 182.500.



Sec. 3186.505  Who in the IMLS determines that a recipient who is an individual violated the requirements of this part?

    The IMLS Chief Financial Officer is the official authorized to make 
the determination under 2 CFR 182.505.

[[Page 349]]



             CHAPTER XXXII--NATIONAL ENDOWMENT FOR THE ARTS




  --------------------------------------------------------------------
Part                                                                Page
3254            Nonprocurement debarment and suspension.....         351

[[Page 351]]



PART 3254_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
3254.10 What does this part do?
3254.20 Does this part apply to me?
3254.30 What policies and procedures must I follow?

                            Subpart A_General

3254.137 Who in the NEA may grant an exception to let an excluded person 
          participate in a covered transaction?

                     Subpart B_Covered Transactions

3254.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

3254.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

3254.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-I [Reserved]

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235.

    Source: 72 FR 6141, Feb. 9, 2007, unless otherwise noted.



Sec. 3254.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the National Endowment for the Arts (NEA) policies and procedures for 
nonprocurement debarment and suspension. It thereby gives regulatory 
effect for the NEA to the OMB guidance as supplemented by this part. 
This part satisfies the requirements in section 3 of Executive Order 
12549, ``Debarment and Suspension'' (3 CFR 1986 Comp., p. 189), 
Executive Order 12689, ``Debarment and Suspension'' (3 CFR 1989 Comp., 
p. 235) and 31 U.S.C. 6101 note (Section 2455, Public Law 103-355, 108 
Stat. 3327).



Sec. 3254.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970.
    (b) Respondent in a NEA suspension or debarment action.
    (c) NEA debarment or suspension official;
    (d) NEA grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction;



Sec. 3254.30  What policies and procedures must I follow?

    The NEA policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, as that section is 
supplemented by the section in this part with the same section number. 
The contracts that are covered transactions, for example, are specified 
by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented 
by section 220 in this part (i.e., Sec. 3254.220). For any section of 
OMB guidance in subparts A through I of 2 CFR 180 that has no 
corresponding section in this part, NEA policies and procedures are 
those in the OMB guidance.



                            Subpart A_General



Sec. 3254.137  Who in the NEA may grant an exception to let an excluded person participate in a covered transaction?

    The NEA Chairman has the authority to grant an exception to let an 
excluded person participate in a covered transaction, as provided in the 
OMB guidance at 2 CFR 180.135.

[[Page 352]]



                     Subpart B_Covered Transactions



Sec. 3254.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see options lower tier coverage in the figure in 
the appendix to 2 CFR part 180), NEA does not extend coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts under a covered nonprocurement transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 3254.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180, as supplemented by this subpart.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 3254.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-I [Reserved]

[[Page 353]]



          CHAPTER XXXIII--NATIONAL ENDOWMENT FOR THE HUMANITIES




  --------------------------------------------------------------------
Part                                                                Page
3369            Nonprocurement debarment and suspension.....         355
3373            Requirements for drug-free workplace 
                    (financial assistance)..................         356

[[Page 355]]



PART 3369_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
3369.10 What does this part do?
3369.20 Does this part apply to me?
3369.30 What policies and procedures must I follow?

                            Subpart A_General

3369.137 Who in the NEH may grant an exception to let an excluded person 
          participate in a covered transaction?

                     Subpart B_Covered Transactions

3369.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

3369.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

3369.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-I [Reserved]

    Authority: 20 U.S.C. 959(a)(1); Sec. 2455, Pub. L. 103-355, 108 
Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 
1989 Comp., p. 235.

    Source: 72 FR 9236, Mar. 1, 2007, unless otherwise noted.



Sec. 3369.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the National Endowment for the Humanities (NEH) policies and 
procedures for nonprocurement debarment and suspension. It thereby gives 
regulatory effect for the NEH to the OMB guidance as supplemented by 
this part. This part satisfies the requirements in section 3 of 
Executive Order 12549, ``Debarment and Suspension'' (3 CFR 1986 Comp., 
p. 189), Executive Order 12689, ``Debarment and Suspension'' (3 CFR 1989 
Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Public Law 103-
355, 108 Stat. 3327).



Sec. 3369.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970).
    (b) Respondent in a NEH suspension or debarment action.
    (c) NEH debarment or suspension official;
    (d) NEH grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction;



Sec. 3369.30  What policies and procedures must I follow?

    The NEH policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, as that section is 
supplemented by the section in this part with the same section number. 
The contracts that are covered transactions, for example, are specified 
by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented 
by section 220 in this part (i.e., Sec. 3369.220). For any section of 
OMB guidance in subparts A through I of 2 CFR 180 that has no 
corresponding section in this part, NEH policies and procedures are 
those in the OMB guidance.



                            Subpart A_General



Sec. 3369.137  Who in the NEH may grant an exception to let an excluded person participate in a covered transaction?

    The NEH Chairman has the authority to grant an exception to let an 
excluded person participate in a covered transaction, as provided in the 
OMB guidance at 2 CFR 180.135.

[[Page 356]]



                     Subpart B_Covered Transactions



Sec. 3369.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see optional lower tier coverage in the figure in 
the appendix to 2 CFR part 180), NEH does not extend coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts under a covered nonprocurement transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 3369.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180, as supplemented by this subpart.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 3369.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-I [Reserved]



PART 3373_REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE)--Table of Contents



Sec.
3373.10 What does this part do?
3373.20 Does this part apply to me?
3373.30 What policies and procedures must I follow?

Subpart A--Purpose and Coverage [Reserved]

      Subpart B_Requirements for Recipients Other Than Individuals

3373.225 Whom in the NEH does a recipient other than an individual 
          notify about a criminal drug conviction?

        Subpart C_Requirements for Recipients Who Are Individuals

3373.300 Whom in the NEH does a recipient who is an individual notify 
          about a criminal drug conviction?

         Subpart D_Responsibilities of Agency Awarding Officials

3373.400 What method do I use as an agency awarding official to obtain a 
          recipient's agreement to comply with the OMB guidance?

           Subpart E_Violations of This Part and Consequences

3373.500 Who in the NEH determines that a recipient other than an 
          individual violated the requirements of this part?
3373.505 Who in the NEH determines that a recipient who is an individual 
          violated the requirements of this part?

Subpart F--Definitions [Reserved]

    Authority: 41 U.S.C. 701-707.

    Source: 75 FR 52858, Aug. 30, 2010, unless otherwise noted.



Sec. 3373.10  What does this part do?

    This part requires that the award and administration of NEH grants 
and cooperative agreements comply with Office of Management and Budget 
(OMB) guidance implementing the portion of the Drug-Free Workplace Act 
of 1988 (41 U.S.C. 701-707, as amended, hereafter referred to as ``the 
Act'') that applies to grants. It thereby--
    (a) Gives regulatory effect to the OMB guidance (subparts A through 
F

[[Page 357]]

of 2 CFR part 182) for the NEH's grants and cooperative agreements; and
    (b) Establishes NEH policies and procedures for compliance with the 
Act that are the same as those of other Federal agencies, in conformance 
with the requirement in 41 U.S.C. 705 for Governmentwide implementing 
regulations.



Sec. 3373.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through F of 2 CFR part 182 (see table at 2 CFR 
182.115(b)) apply to you if you are a--
    (a) Recipient of a NEH grant or cooperative agreement; or
    (b) NEH awarding official.



Sec. 3373.30  What policies and procedures must I follow?

    (a) General. You must follow the policies and procedures specified 
in applicable sections of the OMB guidance in subparts A through F of 2 
CFR part 182, as implemented by this part.
    (b) Specific sections of OMB guidance that this part supplements. In 
implementing the OMB guidance in 2 CFR part 182, this part supplements 
four sections of the guidance, as shown in the following table. For each 
of those sections, you must follow the policies and procedures in the 
OMB guidance, as supplemented by this part.

----------------------------------------------------------------------------------------------------------------
                                                Section in this
           Section of OMB guidance                part where            What the supplementation clarifies
                                                 supplemented
----------------------------------------------------------------------------------------------------------------
(1) 2 CFR 182.225(a).........................   Sec.  3373.225  Whom in the NEH a recipient other than an
                                                                  individual must notify if an employee is
                                                                  convicted for a violation of a criminal drug
                                                                  statute in the workplace.
(2) 2 CFR 182.300(b).........................   Sec.  3373.300  Whom in the NEH a recipient who is an
                                                                  individual must notify if he or she is
                                                                  convicted of a criminal drug offense resulting
                                                                  from a violation occurring during the conduct
                                                                  of any award activity.
(3) 2 CFR 182.500............................   Sec.  3373.500  Who in the NEH is authorized to determine that
                                                                  a recipient other than an individual is in
                                                                  violation of the requirements of 2 CFR part
                                                                  182, as implemented by this part.
(4) 2 CFR 182.505............................   Sec.  3373.505  Who in the NEH is authorized to determine that
                                                                  a recipient who is an individual is in
                                                                  violation of the requirements of 2 CFR part
                                                                  182, as implemented by this part.
----------------------------------------------------------------------------------------------------------------

    (c) Sections of the OMB guidance that this part does not supplement. 
For any section of OMB guidance in subparts A through F of 2 CFR part 
182 that is not listed in paragraph (b) of this section, NEH policies 
and procedures are the same as those in the OMB guidance.

Subpart A--Purpose and Coverage [Reserved]



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 3373.225  Whom in the NEH does a recipient other than an individual notify about a criminal drug conviction?

    A recipient other than an individual that is required under 2 CFR 
182.225(a) to notify Federal agencies about an employee's conviction for 
a criminal drug offense must notify the Director, Office of Grant 
Management, NEH.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 3373.300  Whom in the NEH does a recipient who is an individual notify about a criminal drug conviction?

    A recipient who is an individual and is required under 2 CFR 
182.300(b) to notify Federal agencies about a conviction for a criminal 
drug offense must notify the Director, Office of Grant Management, NEH.



         Subpart D_Responsibilities of Agency Awarding Officials



Sec. 3373.400  What method do I use as an agency awarding official to obtain a recipient's agreement to comply with the OMB guidance?

    To obtain a recipient's agreement to comply with applicable 
requirements in the OMB guidance at 2 CFR part 182,

[[Page 358]]

you must include the following term or condition in the award:

    Drug-free workplace. You as the recipient must comply with drug-free 
workplace requirements in Subpart B (or Subpart C, if the recipient is 
an individual) of 2 CFR Part 3373, which adopts the Governmentwide 
implementation (2 CFR part 182) of sec. 5152-5158 of the Drug-Free 
Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 
701-707).



           Subpart E_Violations of This Part and Consequences



Sec. 3373.500  Who in the NEH determines that a recipient other than an individual violated the requirements of this part?

    The NEH General Counsel is the agency official authorized to make 
the determination under 2 CFR 182.500.



Sec. 3373.505  Who in the NEH determines that a recipient who is an individual violated the requirements of this part?

    The NEH General Counsel is the agency official authorized to make 
the determination under 2 CFR 182.505.

Subpart F--Definitions [Reserved]

[[Page 359]]



          CHAPTER XXXV--EXPORT-IMPORT BANK OF THE UNITED STATES




  --------------------------------------------------------------------
Part                                                                Page
3513            Nonprocurement debarment and suspension.....         361

[[Page 361]]



PART 3513_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
3513.10 What does this part do?
3513.20 Does this part apply to me?
3513.30 What policies and procedures must I follow?

                            Subpart A_General

3513.137 Who at Ex-Im Bank may grant an exception to let an excluded 
          person participate in a covered transaction?

                     Subpart B_Covered Transactions

3513.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

3513.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

3513.437 What method do I use to communicate to a participate the 
          requirements described in the OMB guidance at 2 CFR 180.435?

Subparts E-J [Reserved]

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235.

    Source: 72 FR 30244, May 31, 2007, unless otherwise noted.



Sec. 3513.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Export Import Bank of the United States (Ex-Im Bank) policies and 
procedures for nonprocurement debarment and suspension. It thereby gives 
regulatory effect for Ex-Im Bank to the OMB guidance as supplemented by 
this part. This part satisfies the requirements in section 3 of 
Executive Order 12549, ``Debarment and Suspension'' (3 CFR 1986 Comp., 
p. 189), Executive Order 12689, ``Debarment and Suspension'' (3 CFR 1989 
Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Pub. L. 103-355, 
108 Stat. 3327).



Sec. 3513.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970, as supplemented by subpart B of this 
part).
    (b) Respondent in an Ex-Im Bank suspension or debarment action.
    (c) Ex-Im Bank debarment or suspension official;
    (d) Ex-Im Bank grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction;



Sec. 3513.30  What policies and procedures must I follow?

    Ex-Im Bank policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, as that section is 
supplemented by the section in this part with the same section number. 
The contracts that are covered transactions, for example, are specified 
by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented 
by section 220 in this pat (i.e., Sec. 3513.220). For any section of 
OMB guidance in subparts A through I of 2 CFR 180 that has no 
corresponding section in this part, Ex-Im Bank policies and procedures 
are those in the OMB guidance.



                            Subpart A_General



Sec. 3513.137  Who in Ex-Im Bank may grant an exception to let an excluded person participate in a covered transaction?

    (a) The Ex-Im Bank agency head or designee may grant an exception 
permitting an excluded person to participate in a particular covered 
transacting. If the Ex-Im Bank agency head or designee grants an 
exception, the exception must be in writing and

[[Page 362]]

state the reason(s) for deviating from the government wide policy in 
Executive Order 12549.
    (b) An exception granted by one agency for an excluded person does 
not extend to the covered transactions of another agency.



                     Subpart B_Covered Transactions



Sec. 3513.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see optional lower tier coverage in the figure in 
the appendix to 2 CFR part 180), Ex-Im Bank does not extend coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement under a covered nonprocurement transaction.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 3513.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    To communicate the requirements, you must include a term or 
condition in the transaction requiring the participants' compliance with 
subpart C of this part and requiring them to include a similar term or 
condition in lower-tiered covered transactions.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 3513.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you must include a term or condition in the 
transaction that requires the participant's compliance with subpart C of 
2 CFR part 180, as supplemented by subpart C of this part, and requires 
the participant to include a similar term or condition in lower-tier 
covered transactions.

Subparts E-J [Reserved]

[[Page 363]]



                       CHAPTER XXXVII--PEACE CORPS




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Part                                                                Page
3700            Nonprocurement debarment and suspension.....         365

[[Page 365]]



PART 3700_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
3700.10 What does this part do?
3700.20 Does this part apply to me?
3700.30 What policies and procedures must I follow?
3700.137 Who in the Peace Corps may grant an exception to let an 
          excluded person participate in a covered transaction?
3700.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?
3700.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?
3700.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 
CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235; 22 
U.S.C. 2503(b).

    Source: 71 FR 64731, Nov. 22, 2006, unless otherwise noted.



Sec. 3700.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the Peace Corps policies and procedures for nonprocurement debarment 
and suspension. It thereby gives regulatory effect for the Peace Corps 
to the OMB guidance as supplemented by this part. This part satisfies 
the requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' (3 CFR 1986 Comp., p. 189), Executive Order 12689, 
``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 
6101 note (Section 2455, Pub. L. 103-355, 108 Stat. 3327).



Sec. 3700.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970);
    (b) Respondent in a Peace Corps suspension or debarment action;
    (c) Peace Corps debarment or suspension official; or
    (d) Peace Corps grants officer, agreements officer, or other 
official authorized to enter into any type of nonprocurement transaction 
that is a covered transaction.



Sec. 3700.30  What policies and procedures must I follow?

    The Peace Corps policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, as that section is 
supplemented by the section in this part with the same section number. 
The contracts that are covered transactions, for example, are specified 
by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented 
by section 220 in this part (i.e., Sec. 3700.220). For any section of 
OMB guidance in subparts A through I of 2 CFR 180 that has no 
corresponding section in this part, Peace Corps policies and procedures 
are those in the OMB guidance.



Sec. 3700.137  Who in the Peace Corps may grant an exception to let an excluded person participate in a covered transaction?

    The Director of the Peace Corps has the authority to grant an 
exception to let an excluded person participate in a covered 
transaction, as provided in the OMB guidance at 2 CFR 180.135.



Sec. 3700.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Although the OMB guidance at 2 CFR 180.220(c) allows a Federal 
agency to do so (also see optional lower tier coverage in the figure in 
the appendix to 2 CFR part 180), Peace Corps does not extend coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts under a covered nonprocurement transaction.

[[Page 366]]



Sec. 3700.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    You as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180.



Sec. 3700.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you as an agency official must include a 
term or condition in the transaction that requires the participant's 
compliance with subpart C of 2 CFR part 180, and requires the 
participant to include a similar term or condition in lower-tier covered 
transactions.

[[Page 367]]



              CHAPTER LVIII--ELECTION ASSISTANCE COMMISSION




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Part                                                                Page
5800            Nonprocurement debarment and suspension.....         369

[[Page 369]]



PART 5800_NONPROCUREMENT DEBARMENT AND SUSPENSION--Table of Contents



Sec.
5800.10 What does this part do?
5800.20 Does this part apply to me?
5800.30 What policies and procedures must I follow?

                            Subpart A_General

5800.137 Who at the Commission may grant an exception to let an excluded 
          person participate in a covered transaction?

                     Subpart B_Covered Transactions

5800.220 What contracts and subcontracts, in addition to those listed in 
          2 CFR 180.220, are covered transactions?

    Subpart C_Responsibilities of Participants Regarding Transactions

5800.332 What methods must I use to pass requirements down to 
          participants at lower tiers with whom I intend to do business?

    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions

5800.437 What method do I use to communicate to a participant the 
          requirements described in the OMB guidance at 2 CFR 180.435?
5800.765 May I ask the suspending official to reconsider a decision to 
          suspend me?
5800.875 May I ask the debarring official to reconsider a decision to 
          debar me?
5800.880 What factors may influence the debarring official during 
          reconsideration?
5800.890 How may I appeal my debarment?

Subpart E--H [Reserved]

                          Subpart I_Definitions

5800.930 Debarring official.
5800.970 Nonprocurement transaction.
5800.1010 Suspending official.

Subpart J [Reserved]

    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).

    Source: 75 FR 41692, July 19, 2010, unless otherwise noted.



Sec. 5800.10  What does this part do?

    This part adopts the Office of Management and Budget (OMB) guidance 
in subparts A through I of 2 CFR part 180, as supplemented by this part, 
as the U.S. Election Assistance Commission (``the Commission'' or 
``EAC'') policies and procedures for nonprocurement debarment and 
suspension. It thereby gives regulatory effect for the Commission to the 
OMB guidance as supplemented by this part. This part satisfies the 
requirements in section 3 of Executive Order 12549, ``Debarment and 
Suspension'' and 31 U.S.C. 6101 note.



Sec. 5800.20  Does this part apply to me?

    This part and, through this part, pertinent portions of the OMB 
guidance in subparts A through I of 2 CFR part (see table at 2 CFR 
180.100(b)) apply to you if you are a--
    (a) Participant or principal in a ``covered transaction'' (see 
subpart B of 2 CFR part 180 and the definition of ``nonprocurement 
transaction'' at 2 CFR 180.970);
    (b) Respondent in a Commission suspension or debarment action;
    (c) Commission debarment or suspension official; or
    (d) Commission grants officer, agreements officer, or other official 
authorized to enter into any type of nonprocurement transaction that is 
a covered transaction.



Sec. 5800.30  What policies and procedures must I follow?

    The Commission policies and procedures that you must follow are the 
policies and procedures specified in each applicable section of the OMB 
guidance in subparts A through I of 2 CFR part 180, as that section is 
supplemented by the section in this part with the same section number. 
The contracts that are covered transactions, for example, are specified 
by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented 
by section 220 in this part (i.e., Sec. ------.220). For any section of 
OMB guidance in subparts A through I of 2 CFR 180 that has no 
corresponding section in this part, Commission policies and procedures 
are those in the OMB guidance.

[[Page 370]]



                            Subpart A_General



Sec. 5800.137  Who at the Commission may grant an exception to let an excluded person participate in a covered transaction?

    The Commission's Contracting Officer has the authority to grant an 
exception to let an excluded person participate in a covered 
transaction, as provided in the OMB guidance at 2 CFR 180.135.



                     Subpart B_Covered Transactions



Sec. 5800.220  What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions?

    Pursuant to 2 CFR 180.220(c), the Commission extends coverage of 
nonprocurement suspension and debarment requirements beyond first-tier 
procurement contracts to include any subcontract to be funded by the 
Commission, the value of which is expected to equal to or exceed $25,000 
or 30 percent of the value of first-tier transaction, whichever is 
lesser.



    Subpart C_Responsibilities of Participants Regarding Transactions



Sec. 5800.332  What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business?

    If a lower-tier transaction is covered pursuant to Sec. 5800.220, 
you as a participant must include a term or condition in lower-tier 
transactions requiring lower-tier participants to comply with subpart C 
of the OMB guidance in 2 CFR part 180.



    Subpart D_Responsibilities of Federal Agency Officials Regarding 
                              Transactions



Sec. 5800.437  What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435?

    To communicate to a participant the requirements described in 2 CFR 
180.435 of the OMB guidance, you as an agency official must include a 
term or condition in the transaction that requires the participant's 
compliance with subpart C of 2 CFR part 180, and requires the 
participant to include a similar term or condition in lower-tier covered 
transactions.



Sec. 5800.765  May I ask the suspending official to reconsider a decision to suspend me?

    Yes. Within 30 days of receiving a final notice of suspension, you 
may make a written request for the suspending official to reconsider 
your suspension.



Sec. 5800.875  May I ask the debarring official to reconsider a decision to debar me?

    Yes. Within 30 days of receiving a final notice of debarment, you 
may make a written request for the debarring official to reconsider your 
debarment pursuant to Sec. 5800.880. The disposition of your request 
for reconsideration; or the result of your appeal; shall be considered a 
final agency action.



Sec. 5800.880  What factors may influence the debarring official during reconsideration?

    The debarring official may reduce or terminate your debarment based 
on:
    (a) Newly discovered material evidence;
    (b) A reversal of the conviction or civil judgment upon which your 
debarment was based;
    (c) A bona fide change in ownership or management;
    (d) Elimination of other causes for which the debarment was imposed; 
or
    (e) Other reasons the debarring official finds appropriate.



Sec. 5800.890  How may I appeal my debarment?

    (a) If the Commission debarring official issues a decision under 2 
CFR 180.870 to debar you after you present information in opposition to 
a proposed debarment under Sec. 180.815, you may ask for review of the 
debarring official's decision in two ways:
    (1) You may ask the debarring official under Sec. 875 to reconsider 
the decision for material errors of fact or law that you believe will 
change the outcome of the matter; or

[[Page 371]]

    (2) You may request a review by the EAC's debarment appeals body 
(DAP), which is composed of the Executive Director, Chief Financial 
Officer, and Chief Operating Officer. The DAP will review your appeal 
and make a determination on whether to sustain or reverse the decision 
of the debarring official. The DAP will then make a recommendation to 
the EAC Commissioners who will vote by circulation on whether to accept 
or reject the recommendation of the DAP. A request to review the 
debarring official's decision to debar you must be made within 30 days 
of your receipt of the debarring official's decision under Sec. 180.870 
or paragraph (a)(1) of this section. However, the DAP may recommend to 
the EAC Commissioners that the debarring official's decision be 
reversed, based on a majority vote of the DAP, only where the DAP finds 
that the decision is based on a clear error of material fact or law, or 
where DAP finds that the debarring official's decision was arbitrary, 
capricious, or an abuse of discretion. You may appeal the debarring 
official's decision without requesting reconsideration, or you may 
appeal the decision of the debarring official on reconsideration.
    (b) A request for review under this section must be in writing; 
prominently state on the envelope or other cover and at the top of the 
first page ``Debarment Appeal;'' state the specific findings you believe 
to be in error; and include the reasons or legal bases for your 
position. The appeal request should be delivered or addressed to the 
U.S. Election Assistance Commission, 1201 New York Avenue, NW., Suite 
300, Washington, DC 20005.
    (c) After the circulation vote of the EAC Commissioners has been 
certified, either the Commission debarring official or the DAP must 
notify you of their decision under this section, in writing, using the 
notice procedures set forth at Sec. Sec. 180.615 and 180.975.
    (d) [Reserved]
    (e) Nothing in this part prohibits the EAC from delegating the 
appeal review process to another Federal agency through a memorandum of 
understanding or interagency agreement.

Subparts E--H [Reserved]



                          Subpart I_Definitions



Sec. 5800.930  Debarring official.

    For the Commission, the debarring official for all nonprocurement 
transactions is the Commission's Contracting Officer. In the case of a 
vacancy in the position of the Contracting Officer, the alternate 
debarring official is the Chief Financial Officer.



Sec. 5800.970  Nonprocurement transaction.

    While the Commission treats all payments made to states under 42 
U.S.C. 15301, 15302 and 15401 as grants, this part does not apply to 
grants made to states and political subdivisions therein.



Sec. 5800.1010  Suspending official.

    For the Commission, the debarring official for all nonprocurement 
transactions is the Commission's Contracting Officer. In the case of a 
vacancy in the position of the Contracting Officer, the alternate 
debarring official is the Chief Financial Officer.

Subpart J [Reserved]

[[Page 373]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 375]]



                    Table of CFR Titles and Chapters




                     (Revised as of January 1, 2011)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
       XXX  Department of Homeland Security (Parts 3000--3099)

[[Page 376]]

      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)
        II  Recovery Accountability and Transparency Board (Parts 
                200--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)

[[Page 377]]

      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
     LXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 8200--8299)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 8700--8799)
    LXXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 9200--9299)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)

[[Page 378]]

      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)

[[Page 379]]

      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         L  Rural Business-Cooperative Service, Rurual Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

[[Page 380]]

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

[[Page 381]]

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

[[Page 382]]

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

[[Page 383]]

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                HousingCommissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)

[[Page 384]]

         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

[[Page 385]]

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 386]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Ocean Energy Management, Regulation, and 
                Enforcement, Department of the Interior (Parts 
                200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Departmnent of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)

[[Page 387]]

      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)

[[Page 388]]

         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)
        II  Armed Forces Retirement Home

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)

[[Page 389]]

        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)

[[Page 390]]

       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899) 
                [Reserved]
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

[[Page 391]]

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Health and Human Services (Parts 300--399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)

[[Page 392]]

        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

[[Page 393]]

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 395]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of January 1, 2011)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture.     7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 396]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Bureau of Ocean Energy Management, Regulation,    30, II
     and Enforcement
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 397]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Human Resources Management and Labor Relations  5, XCIX
       Systems
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99

[[Page 398]]

  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II

[[Page 399]]

General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII

[[Page 400]]

Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  MBureau of Ocean Energy Management,             30, II
       Regulation, and Enforcement
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                2, XXVII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V

[[Page 401]]

  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Office of Workers' Compensation Programs        20, VII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture.       7, XXXIV
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III

[[Page 402]]

National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Office of Workers' Compensation Programs          20, VII
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Human Resources Management and Labor Relations  5, XCIX
       Systems, Department of Defense
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Recovery Accountability and Transparency Board    4, II
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L

[[Page 403]]

Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
Special Inspector General for Iraq                5, LXXXVII
     Reconstruction
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
   Commission
[[Page 404]]

United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 405]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since Jan. 1, 2004, 
are enumerated in the following list. Entries indicate the nature of the 
changes effected. Page numbers refer to Federal Register pages. The user 
should consult the entries for chapters and parts as well as sections 
for revisions.

                                  2004

2 CFR
                                                                   69 FR
                                                                    Page
Title 2 Established................................................26280
Subtitle A Established.............................................26280
1 Added............................................................26280
Chapter II Established.............................................26280
215 Added..........................................................26281
Subtitle B Established.............................................26280

                                  2005

2 CFR
                                                                   70 FR
                                                                    Page
Subtitle A
1.205 Revised......................................................51863
1.215 Revised......................................................51863
Chapter I
100--199 (Chapter I) Established; heading added; interim...........51865
180 Added; interim.................................................51865
Chapter II
215.5 Amended......................................................51880
215.13 Revised; interim............................................51879
215.25 (c)(6) and (e) amended......................................51880
215.27 Revised.....................................................51881
215.29 (b) revised; (c) amended....................................51881
215.36 (c) amended; (d) redesignated as (e); new (d) added.........51881
215.72 (b) amended.................................................51881
215 Appendix A amended; interim....................................51879
220 Added..........................................................51881
225 Added..........................................................51910
230 Added..........................................................51927

                                  2006

2 CFR
                                                                   71 FR
                                                                    Page
Subtitle A--Office of Management and Budget Guidance for Grants and 
Agreements
Chapter I--Office of Management and Budget Governmentwide Guidance for 
Grants and Agreements (Parts 100--199)
180.25 (b)(4) removed; (b)(5) redesignated as new (b)(4); (c)(2) 
        revised; (c)(7) added......................................66432
180.220 (c)(1) and (2) revised.....................................66432
180.300 (b) revised................................................66432
Subtitle B--Federal Agency Regulations for Grants and Agreements
Chapter IX--Department of Energy (Part 901)
Chapter IX Established.............................................70459
901 Added..........................................................70459
Chapter XIII--Department of Commerce (Part 1326)
Chapter XIII Established; eff. 1-22-07.............................76574
1326 Added; eff. 1-22-07...........................................76574
Chapter XXXVII--Peace Corps (Part 3700)
Chapter XXXVII Established; eff. 1-8-07............................67431
3700 Added; eff. 1-8-07............................................67431

                                  2007

2 CFR
                                                                   72 FR
                                                                    Page
Subtitle B
Chapter I
175 Added; interim.................................................63783
Chapter III
Chapter III Established; interim....................................9234

[[Page 406]]

    Regulation at 72 FR 9234 confirmed.............................35349
376 Added; interim..................................................9234
    Regulation at 72 FR 9234 confirmed.............................35349
Chapter VI
Chapter VI Established.............................................10034
601 Added..........................................................10034
Chapter VIII
Chapter VIII Established...........................................30240
801 Added..........................................................30240
Chapter XI
Chapter XI Established.............................................34984
1125 Added.........................................................34984
Chapter XIV
Chapter XIV Established; interim...................................33384
1400 Added; interim................................................33384
Chaper XV
Chapter XV Established..............................................2422
1532 Added..........................................................2422
Chapter XVIII
Chapter XVIII Established..........................................19783
1880 Added.........................................................19783
Chapter XXII--Corporation for National and Community Service (Part 2200)
Chapter XXII Established...........................................28826
2200 Added.........................................................28826
Chapter XXIII
Chapter XXIII Established..........................................46140
2336 Added.........................................................46140
Chapter XXIV
Chapter XXIV Established; eff. 1-28-08.............................73487
2424 Added; eff. 1-28-08...........................................73487
Chapter XXV
Chapter XXV Established.............................................4944
2520 Added..........................................................4944
Chapter XXVI
Chapter XXVI Established............................................2768
2600 Added..........................................................2768
Chapter XXVII
Chapter XXVII Established..........................................39728
2700 Added.........................................................39728
Chapter XXVIII
Chapter XXVIII Established.........................................11286
2867 Added.........................................................11286
Chapter XXXII
Chapter XXXII Established...........................................6141
3254 Added..........................................................6141
Chapter XXXIII
Chapter XXXIII Established..........................................9236
3369 Added..........................................................9236
Chapter XXXV
Chapter XXXV Established...........................................30244
3513 Added.........................................................30244

                                  2008

2 CFR
                                                                   73 FR
                                                                    Page
Subtitle B
Chapter XII
Chapter XII Established............................................24140
1200 Added.........................................................24140
Chapter XXVII
2700.137 Amended...................................................43348
2700.930 Amended...................................................43348
2700.1010 Amended..................................................43348
Chapter XXXI
Chapter XXXI Established...........................................46529
3185 Added.........................................................46529

                                  2009

2 CFR
                                                                   74 FR
                                                                    Page
Subtitle A
1.215 Revised......................................................28149
Chapter I
176 Added; interim.................................................18450
182 Added..........................................................28150
Subtitle B
Chapter III
382 Added; eff. 1-11-10............................................58190
Chapter XXX
Chapter XXX Established; interim...................................34497
3000 Added; interim................................................34497

                                  2010

2 CFR
                                                                   75 FR
                                                                    Page
Subtitle A
2--99 Transferred to Chapter I.....................................55673
Chapter I
2--19 (Subchapter A) Established...................................55673
20--39 (Subchapter B) Established..................................55673
25 Added...........................................................55673
40--59 (Subchapter C) Established..................................55676
60--79 (Subchapter D) Established..................................55676

[[Page 407]]

80--99 (Subchapter E) Established..................................55676
100--119 (Subchapter F) Established................................55676
120--199 (Subchapter G) Established................................55676
170 Added; interim.................................................55669
176.90 Heading, introductory text, (a), (b) introductory text, (1) 
        and (3) revised; (b)(4) added; interim.....................14323
176.160 (a) amended; (b)(1)(ii) revised; interim...................14323
176.60--176.170 (Subpart B) Appendix revised; interim..............14324
Chapter IV
Chapter IV Established; interim....................................29185
417 Added; interim.................................................29185
Chapter IX
902 Added..........................................................39444
Chapter XIV
1401 Added; eff. 1-21-11...........................................71008
Chapter XV
1536 Added.........................................................80288
Chapter XX
Chapter XX Established.............................................27924
2000 Added.........................................................27924
Chapter XXII
2245 Added.........................................................22206
Chapter XXIII
2339 Added.........................................................31274
Chapter XXXI
3186 Added.........................................................39134
Chapter XXXIII
3373 Added.........................................................52858
Chapter LVIII
Chapter LVIII Established..........................................41692
5800 Added.........................................................41692


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