[Federal Register Volume 69, Number 144 (Wednesday, July 28, 2004)]
[Proposed Rules]
[Pages 44990-45002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16933]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Parts 21, 22, 25, 32, 33, 34 and 37

RIN 0790-AH75


DoD Grant and Agreement Regulations

AGENCY: Office of the Secretary, DoD.

ACTION: Proposed rule.

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SUMMARY: The Department of Defense (DoD) proposes to amend the DoD 
Grant and Agreement Regulations (DoDGARs) to implement four Office of 
Management and Budget (OMB) policy directives, to conform the DoDGARs 
with several statutory and regulatory revisions, and to make other 
administrative changes. The four OMB directives that are being 
implemented: Require Federal agencies to use a new standard format for 
announcements of funding opportunities; require Federal agencies to 
electronically post synopses of those announcements at a government-
wide Internet site; require government-wide use of the Data Universal 
Numbering System (DUNS) number as the universal identifier for 
recipient organizations; and amend OMB Circular A-133 to raise the 
threshold of Federal funding at which recipients must obtain single 
audits. The statutory and regulatory changes with which the DoDGARs are 
being conformed concern matters such as nonprocurement debarment and 
suspension, drug-free workplace requirements for grants, and campus 
access for military recruiters and Reserve Officer Training Corps.

DATES: Comments are due on or before September 27, 2004.

ADDRESSES: Forward comments to ODUSD (LABS), ATTN: Mark Herbst, 3040 
Defense Pentagon, Washington, DC 20301-3040.

FOR FURTHER INFORMATION CONTACT: Mark Herbst, Office of the Deputy 
Under Secretary of Defense (Laboratories and Basic Sciences), 3040 
Defense Pentagon, Washington, DC 20301-3040.

SUPPLEMENTARY INFORMATION: The Department of Defense (DoD) proposes to 
update the DoD Grant and Agreement Regulations (DoDGARs), the 
regulations that provide uniform policies and procedures for DoD 
Components' award and administration of grants and agreements. The 
updates involve amendments to seven DoDGARs parts--32 CFR parts 21, 22, 
25, 32, 33, 34 and 37. The amendments are needed to conform those parts 
with government-wide and DoD policy changes and with DoD organizational 
and administrative changes. The following paragraphs describe the 
changes addressed by the proposed amendments to the six parts.
    Government-wide standard format for program announcements. OMB 
issued a policy directive, ``Format for Financial Assistance Program 
Announcements'' [68 FR 37370, June 23, 2003], that requires Federal 
agencies to use a standard format for announcements of funding 
opportunities under which discretionary awards of grants or cooperative 
agreements may be made. The policy directive further requires that 
announcements, with a few exceptions, be posted on the Internet. The 
DoD is proposing to revise paragraphs (a), (a)(1) and (2) of 32 CFR 
22.315 to implement this OMB policy directive (see proposed amendment 
number 7 following this preamble).
    Electronic posting of synopses of program announcements. A second 
OMB policy directive, ``Requirement to Post Funding Opportunity 
Announcement Synopses at Grants.gov and Related Data Elements/Format'' 
[68 FR 58146, October 8, 2003], requires Federal agencies to post on 
the Internet a summary of each announcement. The DoD is proposing to 
revise paragraph (a)(3) of 32 CFR 22.315 to implement this policy 
directive (see proposed amendment number 7 following this preamble).
    Use of Data Universal Numbering System (DUNS) numbers. A third OMB 
policy directive, ``Requirement for a DUNS number in Applications for 
Federal Grants and Cooperative Agreements' [68 FR 38402, June 27, 
2003], established the Data Universal Numbering System (DUNS) number as 
the universal identifier for Federal grant and cooperative agreement 
applicants and recipients. It states that applications must include the 
DUNS number and that Federal agency information systems that handle 
data on grants and cooperative agreements must be able to accept the 
DUNS number. The DoD is proposing a new section 32 CFR 21.565 to 
implement the requirement for agency information systems and a revised 
paragraph (a)(4) in 32 CFR 22.315 to address the requirement for 
including DUNS numbers in

[[Page 44991]]

applications (see proposed amendment numbers 2 and 7 following this 
preamble).
    Dollar threshold for single audit requirements. The OMB also 
revised OMB Circular A-133, ``Audits of States, Local Governments, and 
Non-Profit Organizations,'' to increase the threshold at which 
recipients are required to have single audits. The revision to the 
circular [68 FR 38401, June 27, 2003] increased the threshold from 
$300,000 per year to $500,000 per year in expenditures of Federal 
funds. The revision also increased the threshold (from $25 million per 
year to $50 million per year in expenditures of Federal funds) at which 
a recipient would be assigned a cognizant Federal agency for audits and 
made related technical changes. The DoD is proposing to revise two 
sections of the DoDGARs--32 CFR 33.26 for awards to State, local, and 
other governmental organizations and 34.16 for for-profit recipients--
to replace the $300,000 threshold amount with the updated $500,000 
threshold (see proposed amendment numbers 25 and 28 following this 
preamble).
    Nonprocurement debarment and suspension and drug-free workplace 
requirements. The DoD recently joined with thirty-two other Federal 
agencies to publish [68 FR 66534, November 26, 2003] updated 
government-wide common rules on nonprocurement debarment and suspension 
and on drug-free workplace requirements for grants and agreements. The 
updated common rule on nonprocurement debarment and suspension is part 
25 of the DoDGARs (32 CFR part 25) and the common rule on drug-free 
workplace requirements is part 26 (32 CFR part 26). The DoD now is 
proposing to make conforming amendments to DoDGARs parts 21, 22, 32, 
33, 34 and 37, to incorporate changes in policies and procedures due to 
the revisions of parts 25 and 26 and to correct references to sections 
of those two revised parts (see proposed amendment numbers 3, 5, 8, 
9.a, 11.a, 15.a, 17, 18, 22, 23, 26, 29, 31, 32, and 33 following this 
preamble).
    Campus access for military recruiters and Reserve Officer Training 
Corps (ROTC). Section 549 of the National Defense Authorization Act for 
Fiscal Year 2000 (Pub. L. 106-65) recodified and consolidated--in 10 
U.S.C. 983--two separate statutes applicable to institutions of higher 
education that receive DoD grants. The first of the two statutes 
prohibits DoD from providing funds by grant to institutions that deny 
military recruiters entry to campus or access to students or student 
information for recruiting purposes. Before Public Law 106-65 
recodified that requirement in 10 U.S.C. 983, it was in section 558 of 
the National Defense Authorization Act for Fiscal Year 1995 (Pub. L. 
103-337). The DoD implemented that section 558 requirement, as it 
applied to grants, in the DoDGARs at 32 CFR 22.520.
    The second of the two statutes prohibits DoD from providing funds 
by grant to an institution that prevents the establishment and 
operation of a Senior ROTC unit on campus or student enrollment in a 
unit at an alternate institution. That statute was originally codified 
in 10 U.S.C. 983 by the National Defense Authorization Act for Fiscal 
Year 1996 (Pub. L. 104-106).
    With the recodification and consolidation of both requirements in 
10 U.S.C. 983, the DoD proposes to revise section 32 CFR 22.520 of the 
DoDGARs and make conforming changes in sections 32 CFR 22.420 and 32 
CFR 25.425. The proposed revision of 32 CFR 22.520 addresses the 
requirements concerning ROTC, as well as the restrictions concerning 
military recruiters' access that already were addressed in 32 CFR 
22.520. Among the proposed changes in 32 CFR 22.520 are: The inclusion 
of the requirement concerning ROTC in the award term in paragraph 
22.520(f); a clarification in a new paragraph 22.520(e)(2) that the 
prohibition on providing funds by grant extends, by law, to obligations 
of additional funds for pre-existing awards (e.g., incremental funding 
actions); and a revision to paragraph 22.520(d)(1) to apply the 
prohibition on use of DoD funds to an institution of higher education 
as a whole, as 10 U.S.C. 983 requires, when any subordinate element of 
the institution has a policy or practice that denies access for ROTC or 
military recruiters (see proposed amendment number 12 following this 
preamble for the changes to section 32 CFR 22.520 and proposed 
amendment numbers 9.a and 20 for the conforming changes to sections 32 
CFR 22.420 and 32 CFR 25.425).
    Other Proposed Revisions. In addition to the proposed revisions 
described above, the DoD is proposing to make other needed updates to 
the DoDGARs. Those proposed updates are: (1) A deletion of paragraph 
(a)(4) of section 32 CFR 22.715, to conform that section with revised 
procedures for oversight of single audits; (2) changes in Appendices A 
and B to 32 CFR part 22, to reflect revisions in regulations 
implementing national policy requirements; and (3) updates to office 
names, footnote references to sources of OMB and DoD documents, and 
cross references to sections within the DoDGARs (see proposed amendment 
numbers 6, 9.b, 10, 11.b, 13, 14, 15.b, 16, and 18 following this 
preamble).

Executive Order 12866

    OMB has determined this rule to be significant and it has been 
reviewed and approved for publication.

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

    This proposed regulatory action will not have a significant adverse 
impact on a substantial number of small entities.

Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)

    This proposed regulatory action does not contain a Federal mandate 
that will result in the expenditure by State, local, and tribal 
governments, in aggregate, or by the private sector of $100 million or 
more in any one year.

Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)

    This proposed regulatory action will not impose any additional 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act.

Federalism (Executive Order 13132)

    This proposed regulatory action does not have Federalism 
implications, as set forth in Executive Order 13132. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

List of Subjects

32 CFR Part 21

    Grant programs, Reporting and recordkeeping requirements.

32 CFR Part 22

    Accounting, Grant programs, Grant programs--education, Reporting 
and recordkeeping requirements.

32 CFR Part 25

    Accounting, Grant programs, Loan programs, Reporting and 
recordkeeping requirements.

32 CFR Part 32

    Accounting, Colleges and universities, Grant programs, Hospitals, 
Nonprofit organizations, Reporting and recordkeeping requirements.

32 CFR Part 33

    Grant programs, Indians, Intergovernmental relations, Reporting and 
recordkeeping requirements.

[[Page 44992]]

32 CFR Part 34

    Accounting, Government property, Grant programs, Nonprofit 
organizations, Reporting and recordkeeping requirements.

32 CFR Part 37

    Accounting, administrative practice and procedure, Grant programs, 
Grants administration, Reporting and recordkeeping requirements.

    Accordingly, title 32 of the Code of Federal Regulations, chapter 
I, subchapter B is proposed to be amended as follows:

PART 21--[AMENDED]

    1. The authority citation for part 21 continues to read as follows:

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

Subpart E--[Amended]

    2. Subpart E is amended by:
    a. Adding a new Sec.  21.565 to read as set forth below; and
    b. Adding a new footnote 6 to read as set forth below.


Sec.  21.565  Must DoD Components' electronic systems accept Data 
Universal Numbering System (DUNS) numbers?

    The DoD Components must comply with paragraph 5.e of the Office of 
Management and Budget (OMB) policy directive entitled, ``Requirement 
for a DUNS number in Applications for Federal Grants and Cooperative 
Agreements.'' \6\ Paragraph 5.e requires electronic systems that handle 
information about grants and cooperative agreements (which, for the 
DoD, include Technology Investment Agreements) to accept DUNS numbers. 
Each DoD Component that awards or administers grants or cooperative 
agreements must ensure that DUNS numbers are accepted by each such 
system for which the DoD Component controls the system specifications. 
If the specifications of such a system are subject to another 
organization's control and the system can not accept DUNS numbers, the 
DoD Component must alert that organization to the OMB policy 
directive's requirement for use of DUNS numbers with a copy to: 
Director for Basic Sciences, ODDR&E, 3040 Defense Pentagon, Washington, 
DC 20301-3040.
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    \6\ This OMB policy directive is in a Federal Register notice 
published on June 27, 2003 [68 FR 38402], which is also available at 
the Internet site http://www.whitehouse.gov/omb/grants/grants.docs.html.
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    3. Appendix A to part 21 is revised to read as follows:

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

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                               Which addresses . .
        DoDGARs . . .                   .             Applies to . . .
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Part 21 (32 CFR part 21),     The Defense Grant     ``Awards,'' which
 all but Subparts D and E.     Agreement             are grants,
                               Regulatory System     cooperative
                               and the DoD Grant     agreements,
                               and Agreement         technology
                               Regulations.          investment
                                                     agreements (TIAs),
                                                     and other
                                                     nonprocurement
                                                     instruments subject
                                                     to one or more
                                                     parts of the
                                                     DoDGARs.
Part 21 (32 CFR part 21),     Authorities and       Grants, cooperative
 Subpart D.                    responsibilities      agreements, and
                               for assistance        TIAs.
                               award and
                               administration.
Part 21 (32 CFR part 21),     DoD Components'       Grants, cooperative
 Subpart E.                    information           agreements, TIAs,
                               reporting             and other
                               requirements.         nonprocurement
                                                     instruments ubject
                                                     to reporting
                                                     requirements in 31
                                                     U.S.C. chapter 61.
Part 22 (32 CFR part 22)....  DoD grants officers'  Grants and
                               responsibilities      cooperative
                               for award and         agreements other
                               administration of     than TIAs.
                               grants and
                               cooperative
                               agreements.
Part 25 (32 CFR part 25)....  Governmentwide        Nonprocurement
                               debarment and         generally, which
                               suspension            includes grants,
                               requirements.         cooperative
                                                     agreements, TIAs,
                                                     and other
                                                     instruments that
                                                     are covered
                                                     transactions under
                                                     32 CFR 25.210, with
                                                     the exceptions
                                                     identified at 32
                                                     CFR 25.215.
Part 26 (32 CFR part 26)....  Governmentwide drug-  Grants, cooperative
                               free workplace        agreements and
                               requirements.         other financial
                                                     assistance
                                                     instruments,
                                                     including TIAs,
                                                     that are included
                                                     in the definition
                                                     of ``award'' at 32
                                                     CFR 26.605.
Part 28 (32 CFR part 28)....  Governmentwide        Grants, cooperative
                               restrictions on       agreements and
                               lobbying.             other financial
                                                     assistance
                                                     instruments,
                                                     including TIAs,
                                                     that are included
                                                     in the definitions
                                                     of ``Federal
                                                     grant'' and
                                                     ``Federal
                                                     cooperative
                                                     agreement'' at 32
                                                     CFR 28.105.
Part 32 (32 CFR part 32)....  Administrative        Grants, cooperative
                               requirements for      agreements other
                               grants and            than TIAs, and
                               agreements with       other assistance
                               institutions of       included in
                               higher education,     ``award'' as
                               hospitals, and        defined in 32 CFR
                               other non-profit      32.2. Portions of
                               organizations.        this part apply to
                                                     TIAs, but only as
                                                     32 CFR part 37
                                                     refers to them and
                                                     makes them apply.
Part 33 (32 CFR part 33)....  Administrative        Grants, cooperative
                               requirements for      agreements other
                               grants and            than TIAs, and
                               agreements with       other assistance
                               State and local       included in
                               governments.          ``grant,'' as
                                                     defined in 32 CFR
                                                     33.3. Portions of
                                                     this part apply to
                                                     TIAs, but only as
                                                     32 CFR part 37
                                                     refers to them and
                                                     makes them apply.
Part 34 (32 CFR part 34)....  Administrative        Grants and
                               requirements for      cooperative
                               grants and            agreements other
                               agreements with for-  than TIAs
                               profit                (``awards,'' as
                               organizations.        defined in 32 CFR
                                                     34.2). Portions of
                                                     this part apply to
                                                     TIAs, but only as
                                                     32 CFR part 37
                                                     refers to them and
                                                     makes them apply.
Part 37 (32 CFR part 37)....  Agreements officers'  TIAs. Note that this
                               responsibilities      part refers to
                               for award and         portions of DoDGARs
                               administration of     parts 32, 33, and
                               TIAs.                 34 that apply to
                                                     TIAs.
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PART 22--[AMENDED]

    4. The authority citation for part 22 continues to read as follows:

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

    5. Section 22.100 is amended as follows:
    a. Redesignating paragraph (b)(3) as (b)(4);
    b. Redesignating paragraph (b)(2) as (b)(3);

[[Page 44993]]

    c. Amending paragraph (b)(1) by revising ``Governmentwide rules on 
debarment, suspension and drug-free workplace requirements'' to read 
``The Governmentwide rule on nonprocurement debarment and suspension''.
    d. Adding a new paragraph (b)(2) to read as follows:


Sec.  22.100  Purpose, relation to other parts, and organization.

* * * * *
    (b) * * *
    (2) The Governmentwide rule on drug-free workplace requirements, in 
32 CFR part 26.
* * * * *


Sec.  22.220  [Amended]

    6. Section 22.220, paragraph (a) is amended as follows:
    a. Paragraph (a)(1) by revising ``Director of Defense Procurement 
(DDP)'' to read ``Director of Defense Procurement and Acquisition 
Policy (DDP&AP)''.
    b. Paragraph (a)(2) by revising ``DDP'' to read ``DDP&AP''.
    7. Section 22.315 is amended by:
    a. Revising paragraph (a) to read as set forth below; and
    b. Adding new footnotes 2, 3, and 4 to read as set forth below.


Sec.  22.315  Merit-based, competitive procedures.

* * * * *
    (a) Notice to prospective proposers. The notice may be a notice of 
funding availability or Broad Agency Announcement that is publicly 
disseminated, with unlimited distribution, or a specific notice that is 
distributed to eligible proposers (a specific notice must be 
distributed to at least two eligible proposers to be considered as part 
of a competitive procedure). Requirements for notices are as follows:
    (1) The format and content of each notice must conform with the 
government-wide format for announcements of funding opportunities 
established by the Office of Management and Budget (OMB) in a policy 
directive entitled, ``Format for Financial Assistance Program 
Announcements.'' \2\
    (2) In accordance with that OMB policy directive, DoD Components 
also must post on the Internet any notice under which domestic entities 
may submit proposals, if the distribution of the notice is unlimited. 
DoD Components are encouraged to simultaneously publish the notice in 
other media (e.g., the Federal Register), if doing so would increase 
the likelihood of its being seen by potential proposers. If a DoD 
Component issues a specific notice with limited distribution (e.g., for 
national security considerations), the notice need not be posted on the 
Internet.
    (3) To comply with an OMB policy directive entitled, ``Requirement 
to Post Funding Opportunity Announcement Synopses at Grants.gov and 
Related Data Elements/Format,'' \3\ DoD Components must post on the 
Internet a synopsis for each notice that, in accordance with paragraph 
(a)(2) of this section, is posted on the Internet. The synopsis must be 
posted at the government-wide site designated by the OMB (currently 
http://www.FedGrants.gov). The synopsis for each notice must provide 
complete instructions on where to obtain the notice and should have an 
electronic link to the Internet location at which the notice is posted.
    (4) In accordance with an OMB policy directive entitled, 
``Requirement for a DUNS number in Applications for Federal Grants and 
Cooperative Agreements,'' \4\ each notice must include a requirement 
for proposers to include Data Universal Numbering System (DUNS) numbers 
in their proposals. If a notice provides for submission of application 
forms, the forms must incorporate the DUNS number. To the extent that 
unincorporated consortia of separate organizations may submit 
proposals, the notice should explain that an unincorporated consortium 
would use the DUNS number of the entity proposed to receive DoD 
payments under the award (usually, a lead organization that consortium 
members identify for administrative matters).
* * * * *
    \2\ This OMB policy directive is in a Federal Register notice 
published on June 23, 2003 [68 FR 37370], which is also available at 
the Internet site http://www.whitehouse.gov/omb/grants/grants.docs.html.
    \3\ This OMB policy directive is in a Federal Register notice 
published on October 8, 2003 [68 FR 58146], which is also available 
at the Internet site http://www.whitehouse.gov/omb/grants/grants.docs.html.
    \4\ This OMB policy directive is in a Federal Register notice 
published on June 27, 2003 [68 FR 38402], which is also available at 
the Internet site http://www.whitehouse.gov/omb/grants/grants.docs.html.


Sec.  22.405  [Amended]

    8. Section 22.405, paragraph (a) is amended by revising ``32 CFR 
25.115(a)'' to read ``32 CFR 25.110(a)''.
    9. Section 22.420 is amended as follows:
    a. Revising paragraph (c)(1) to read as set forth below; and
    b. Redesignating the current footnote 2 in paragraph (b)(1) of 
section 22.420 as footnote 5 and revising it to read as set forth 
below.

Sec.  22.420  Pre-award procedures.

* * * * *
    (c) * * *
    (1) Is not identified in the government-wide Excluded Parties List 
System (EPLS) as being debarred, suspended, or otherwise ineligible to 
receive the award. (In addition to being a requirement for every new 
award, note that checking the EPLS also is a requirement for subsequent 
obligations of additional funds, such as incremental funding actions, 
for pre-existing awards to institutions of higher education, as 
described at 32 CFR 22.520(e)(2).) The grants officer's 
responsibilities include (see 32 CFR 25.425 and 25.430) checking the 
EPLS for:
    (i) Potential recipients of prime awards; and
    (ii) A recipient's principals (as defined at 32 CFR 25.995), 
potential recipients of subawards, and principals of those potential 
subaward recipients, if DoD Component approval of those principals or 
lower-tier recipients is required under the terms of the award (e.g., 
if a subsequent change in a recipient's principal investigator or other 
key person would be subject to the DoD Component's prior approval under 
32 CFR 32.25(c)(2), 33.30(d)(3), or 34.15(c)(2)(i)).
* * * * *
    \5\ Electronic copies may be obtained at Internet site http://www.whitehouse.gov/OMB. For paper copies, contact the Office of 
Management and Budget, EOP Publications, 725 17th St. NW., New 
Executive Office Building, Washington, DC 20503.


Sec.  22.505  [Amended]

    10. Section 22.505 is amended by redesignating the existing 
footnotes 3 and 4 in paragraph (a) of section 22.505 as footnotes 6 and 
7, respectively, and by revising them to read as follows:

    \6\ See footnote 5 to Sec.  22.420(b)(1).
    \7\ See footnote 5 to Sec.  22.420(b)(1).

    11. Section 22.510 is amended by:
    a. Revising paragraphs (a)(2)(ii)(A), (a)(2)(ii)(B), and 
(a)(2)(ii)(C) to read as set forth below; and
    b. Redesignating the current footnote 5 in paragraph (b) of Sec.  
22.510 as footnote 8 and revising it to read as set forth below:


Sec.  22.510  Certifications, representations, and assurances.

* * * * *

[[Page 44994]]

    (a) * * *
    (2) * * *
    (ii) * * *
    (A) If a grants officer elects to have proposers incorporate 
certifications by reference into their proposals, he or she must do so 
in one of the two following ways. When required by statute or codified 
regulation, the solicitation must include the full text of the 
certifications that proposers are to provide by reference. In other 
cases, the grants officer may include language in the solicitation that 
informs the proposers where the full text may be found (e.g., in 
documents or computer network sites that are readily available to the 
public) and offers to provide it to proposers upon request.
    (B) Appendix A to this part provides language that may be used for 
incorporating by reference the certification on lobbying, which 
currently is the only certification requirement that commonly applies 
to DoD grants and agreements. Because that certification is required by 
law to be submitted at the time of proposal, rather than at the time of 
award, Appendix A includes language to incorporate the certification by 
reference into a proposal.
    (C) Grants officers may incorporate certifications by reference in 
award documents when doing so is consistent with statute and codified 
regulation (that is not the case for the lobbying certification 
addressed in paragraph (a)(2)(ii)(B) of this section). The provision 
that a grants officer would use to incorporate certifications in award 
documents, when consistent with statute and codified regulation, would 
be similar to the provision in Appendix A to this part, except that it 
would be modified to state that the recipient is providing the required 
certifications by signing the award document or by accepting funds 
under the award.
* * * * *

    \8\ For copies of Standard Forms listed in this part, contact 
regional grants administration offices of the Office of Naval 
Research. Addresses for the offices are listed in the ``Federal 
Directory of Contract Administration Services (CAS) Components,'' 
which may be accessed through the Defense Contract Management Agency 
homepage at: http://www.dcma.mil.

    12. Section 22.520 is revised to read as follows:


Sec.  22.520  Campus access for military recruiting and Reserve Officer 
Training Corps (ROTC).

    (a) Purpose. (1) The purpose of this section is to implement 10 
U.S.C. 983 as it applies to grants. Under that statute, DoD Components 
are prohibited from providing funds to institutions of higher education 
that have policies or practices, as described in paragraph (c) of this 
section, restricting campus access of military recruiters or the 
Reserve Officer Training Corps (ROTC).
    (2) By addressing the effect of 10 U.S.C. 983 on grants and 
cooperative agreements, this section supplements the DoD's primary 
implementation of that statute in 32 CFR part 216, ``Military 
Recruiting and Reserve Officer Training Corps Program Access to 
Institutions of Higher Education.'' Part 216 establishes procedures by 
which the Department of Defense identifies institutions of higher 
education that have a policy or practice described in paragraph (c) of 
this section.
    (b) Definition specific to this section. ``Institution of higher 
education'' in this section has the meaning given at 32 CFR 216.3, 
which is different than the meaning given at Sec.  22.105 for other 
sections of this part.
    (c) Statutory requirement of 10 U.S.C. 983. No funds made available 
to the Department of Defense may be provided by grant to an institution 
of higher education (including any subelement of such institution) if 
the Secretary of Defense determines that the institution (or any 
subelement of that institution) has a policy or practice that either 
prohibits, or in effect prevents:
    (1) The Secretary of a military department from maintaining, 
establishing, or operating a unit of the Senior ROTC (in accordance 
with 10 U.S.C. 654 and other applicable Federal laws) at that 
institution (or any subelement of that institution);
    (2) A student at that institution (or any subelement of that 
institution) from enrolling in a unit of the Senior ROTC at another 
institution of higher education;
    (3) The Secretary of a Military Department or Secretary of Homeland 
Security from gaining entry to campuses, or access to students (who are 
17 years of age or older) on campuses, for purposes of military 
recruiting; or
    (4) Access by military recruiters for purposes of military 
recruiting to the following information pertaining to students (who are 
17 years of age or older) enrolled at that institution (or any 
subelement of that institution):
    (i) Names, addresses, and telephone listings.
    (ii) Date and place of birth, levels of education, academic majors, 
degrees received, and the most recent educational institution enrolled 
in by the student.
    (d) Policy. (1) Applicability to cooperative agreements. As a 
matter of DoD policy, the restrictions of 10 U.S.C. 983, as implemented 
by 32 CFR part 216, apply to cooperative agreements, as well as grants.
    (2) Deviations. Grants officers may not deviate from any provision 
of this section without obtaining the prior approval of the Director of 
Defense Research and Engineering. Requests for deviations shall be 
submitted, through appropriate channels, to: Director for Basic 
Sciences, ODUSD (LABS), 3040 Defense Pentagon, Washington, DC 20301-
3040.
    (e) Grants officers' responsibilities. (1) A grants officer shall 
not award any grant or cooperative agreement to an institution of 
higher education that has been identified pursuant to the procedures of 
32 CFR part 216. Such institutions are identified as being ineligible 
on the Governmentwide Excluded Parties List System (EPLS). The cause 
and treatment code on the EPLS indicates the reason for an 
institution's ineligibility, as well as the effect of the exclusion. 
Note that 32 CFR 25.425 and 25.430 require a grants officer to check 
the EPLS prior to determining that a recipient is qualified to receive 
an award.
    (2) A grants officer shall not consent to a subaward of DoD funds 
to such an institution, under a grant or cooperative agreement to any 
recipient, if the subaward requires the grants officer's consent.
    (3) A grants officer shall include the following award term in each 
grant or cooperative agreement with an institution of higher education 
(note that this requirement does not flow down and that recipients are 
not required to include the award term in subawards):

    As a condition for receipt of funds available to the Department 
of Defense (DoD) under this award, the recipient agrees that it is 
not an institution of higher education (as defined in 32 CFR part 
216) that has a policy or practice that either prohibits, or in 
effect prevents:
    (A) The Secretary of a Military Department from maintaining, 
establishing, or operating a unit of the Senior Reserve Officers 
Training Corps (in accordance with 10 U.S.C. 654 and other 
applicable Federal laws) at that institution (or any subelement of 
that institution);
    (B) Any student at that institution (or any subelement of that 
institution) from enrolling in a unit of the Senior ROTC at another 
institution of higher education;
    (C) The Secretary of a Military Department or Secretary of 
Homeland Security from gaining entry to campuses, or access to 
students (who are 17 years of age or older) on campuses, for 
purposes of military recruiting; or
    (D) Access by military recruiters for purposes of military 
recruiting to the names

[[Page 44995]]

of students (who are 17 years of age or older and enrolled at that 
institution or any subelement of that institution); their addresses, 
telephone listings, dates and places of birth, levels of education, 
academic majors, and degrees received; and the most recent 
educational institutions in which they were enrolled.
    If the recipient is determined, using the procedures in 32 CFR 
part 216, to be such an institution of higher education during the 
period of performance of this agreement, the Government will cease 
all payments of DoD funds under this agreement and all other DoD 
grants and cooperative agreements to the recipient, and it may 
suspend or terminate such grants and agreements unilaterally for 
material failure to comply with the terms and conditions of award.

    (4) If an institution of higher education refuses to accept the 
award term in paragraph (e)(3) of this section, the grants officer 
shall:
    (i) Determine that the institution is not qualified with respect to 
the award. The grants officer may award to an alternative recipient.
    (ii) Transmit the name of the institution, through appropriate 
channels, to the Director for Accession Policy, Office of the Deputy 
Under Secretary of Defense for Military Personnel Policy (ODUSD(MPP)), 
4000 Defense Pentagon, Washington, DC 20301-4000. This will allow ODUSD 
(MPP) to decide whether to initiate an evaluation of the institution 
under 32 CFR part 216, to determine whether it is an institution that 
has a policy or practice described in paragraph (c) of this section.
    (5) With respect to any pre-existing award to an institution of 
higher education that currently is listed on the EPLS pursuant to a 
determination under 32 CFR part 216, a grants officer:
    (i) Shall not obligate additional funds available to the DoD for 
the award. A grants officer therefore must check the EPLS before 
approving an incremental funding action or other additional funding for 
any pre-existing award to an institution of higher education. The 
grants officer may not obligate the additional funds if the cause and 
treatment code indicates that the reason for an institution's EPLS 
listing is a determination under 32 CFR part 216 that institutional 
policies or practices restrict campus access of military recruiters or 
ROTC.
    (ii) Shall not approve any request for payment submitted by such an 
institution (including payments for costs already incurred).
    (iii) Shall:
    (A) Terminate the award unless he or she has a reason to believe, 
after consulting with the ODUSD (MPP), 4000 Defense Pentagon, 
Washington, DC. 20301-4000, that the institution may be removed from 
the EPLS in the near term and have its eligibility restored; and
    (B) Suspend any award that is not immediately terminated, as well 
as all payments under it.
    (f) Post-award administration responsibilities of the Office of 
Naval Research (ONR). As the DoD office assigned responsibility for 
performing field administration services for grants and cooperative 
agreements with institutions of higher education, the ONR shall 
disseminate the list it receives from the ODUSD(MPP) of institutions of 
higher education identified pursuant to the procedures of 32 CFR part 
216 to:
    (1) ONR field administration offices, with instructions to:
    (i) Disapprove any payment requests under awards to such 
institutions for which post-award payment administration was delegated 
to the ONR; and
    (ii) Alert the DoD offices that made the awards to their 
responsibilities under paragraphs (e)(5)(i) and (e)(5)(i) (iii) of this 
section.
    (2) Awarding offices in DoD Components that may be identified from 
data in the Defense Assistance Awards Data System (see 32 CFR 21.520 
through 21.555) as having awards with such institutions for which post-
award payment administration was not delegated to ONR. The ONR is to 
alert those offices to their responsibilities under paragraph (e)(5) of 
this section.


Sec.  22.605  [Amended]

    13. Section 22.605 is amended by redesignating the current footnote 
6 in paragraph (c)(2) as footnote 9 and revising it to read as follows:

    \9\ See footnote 8 to Sec.  22.510(b).
    14. Section 22.710 is amended as follows:
    a. Revising the introductory text to read as set forth below; 
and
    b. Redesignating the current footnotes 7 through 9 in the 
introductory text and paragraphs (a)(1) and (2) respectively as 
footnotes 10 through 12 and revising them to read as set forth 
below.


Sec.  22.710  Assignment of grants administration offices.

    In accordance with the policy stated in Sec.  22.705(b), the DoD 
offices (referred to in this part as ``grants administration offices'') 
that are assigned responsibility for performing field administration 
services for grants and cooperative agreements are (see the ``Federal 
Directory of Contract Administration Services (CAS) Components''\10\ 
for specific addresses of administration offices):
* * * * *
    \10\ The ``Federal Directory of Contract Administration Services 
(CAS) Components'' may be accessed through the Defense Contract 
Management Agency homepage at http://www.dcma.mil.
    \11\ See footnote 5 to Sec.  22.420(b)(1).
    \12\ See footnote 5 to Sec.  22.420(b)(1).


Sec.  22.715  [Amended]

    15. Section 22.715 is amended as follows:
    a. In paragraph (a)(3)(ii) by revising ``32 CFR part 25'' to read 
``32 CFR part 26''.
    b. Removing paragraph (a)(4).


Sec.  22.810  [Amended]

    16. Section 22.810 is amended by redesignating footnote 10 to 
paragraph (c)(3)(i) as footnote 13 and revising it to read as follows:

    \13\ Electronic copies may be obtained at the Washington 
Headquarters Services Internet site http://www.dtic.mil/whs/directives. Paper copies may be obtained, at cost, from the National 
Technical Information Service, 5285 Port Royal Road, Springfield, VA 
22161.

    17. Appendix A to Part 22 is revised to read as follows:

Appendix A to Part 22--Proposal Provision for Required Certification

[[Page 44996]]



----------------------------------------------------------------------------------------------------------------
                                                           Used for
   Provision in proposal (or,    ------------------------------------------------------------      Source of
  suitably modified, in award)       Type of award     Type of recipient  Specific situation      requirement
----------------------------------------------------------------------------------------------------------------
By signing and submitting this    Any financial       All but Indian      Any...............  32 CFR 28, which
 proposal, the recipient is        assistance [see     tribe or tribal                         implements 31
 providing the certification at    32 CFR 28.105(b)    organization with                       U.S.C. 1352.
 Appendix A to 32 CFR part 28      and definitions     respect to
 regarding lobbying.               of ``Federal        expenditures
                                   grant,''            specifically
                                   ``Federal           permitted by
                                   cooperative         other Federal law
                                   agreement,'' and    [see 32 CFR
                                   ``Federal loan''    28.105(l)].
                                   in 32 CFR
                                   28.105(c), (d),
                                   and (e)].
----------------------------------------------------------------------------------------------------------------

    18. Revise Appendix B to Part 22 to read as follows:

Appendix B to Part 22--Suggested Award Provisions for National Policy 
Requirements That Often Apply

----------------------------------------------------------------------------------------------------------------
                                                         Used for
                                ---------------------------------------------------------   Some requirement(s)
   Suggested award provision                                                Specific        the grants officer
                                   Type of award    Type of recipient      situation            should note
----------------------------------------------------------------------------------------------------------------
Nondiscrimination--By signing
 this agreement or accepting
 funds under this agreement,
 the recipient assures that it
 will comply with applicable
 provisions of the following,
 national policies prohibiting
 discrimination:
    a. On the basis of race,     Grants,            Any..............  Any..............  32 CFR part 195.6
     color, or national origin,   cooperative                                              requires grants
     in Title VI of the Civil     agreements, and                                          officer to obtain
     Rights Act of 1964 (42       other financial                                          recipient's assurance
     U.S.C. 2000d, et seq.), as   assistance                                               of compliance. It
     implemented by DoD           included at 32                                           also requires the
     regulations at 32 CFR part   CFR 195.2(d).                                            recipient to flow
     195.                                                                                  down requirements to
                                                                                           subrecipients.
    b. On the basis of race,     Grants,            Any..............  Awards under       The grants officer
     color, religion, sex, or     cooperative                           which              should inform
     national origin, in          agreements, and                       construction       recipients that 41
     Executive Order 11246 [3     other prime                           work is to be      CFR 60-1.4(b)
     CFR, 1964-1965 Comp., p.     awards defined                        done.              prescribes a clause
     339], as implemented by      at 40 CFR 60-1.3                                         that recipients must
     Department of Labor          as ``Federally                                           include in federally
     regulations at 41 CFR part   assisted                                                 assisted construction
     60.                          construction                                             awards and subawards
                                  contract''.                                              [60-1.4(d) allows
                                                                                           incorporation by
                                                                                           reference]. This
                                                                                           requirement also is
                                                                                           at 32 CFR 33.36(I)(3)
                                                                                           and in Appendices A
                                                                                           to 32 CFR part 32 and
                                                                                           32 CFR part 34.
    c. On the basis of sex or    Grants,            Any [for sex       Any educational    32 CFR 196.115
     blindness, in Title IX of    cooperative        discrimination,    program or         requires assurance of
     the Education Amendments     agreements, and    32 CFR 196.235     activity           compliance. The
     of 1972 (20 U.S.C. 1681,     other financial    excepts an         receiving          inclusion of
     et seq.), as implemented     assistance         entity             Federal            subrecipients in the
     by DoD regulations at 32     included at 20     controlled by a    financial          definition of
     CFR part 196.                U.S.C. 1682.       religious          assistance.        ``recipient'' at 32
                                                     organization, if                      CFR 196.105 requires
                                                     not consistent                        recipient to flow
                                                     with the                              down requirements to
                                                     organization's                        subrecipients.
                                                     religious
                                                     tenets].
    d. On the basis of age, in   Grants,            Any..............  Any..............  45 CFR 90.4 requires
     the Age Discrimination Act   cooperative                                              that recipient flow
     of 1975 (42 U.S.C. 6101,     agreements, and                                          down requirements to
     et seq.), as implemented     other awards                                             subrecipients
     by Department of Health      defined at 45                                            [definition of
     and Human Services           CFR 90.4 as                                              ``recipient'' at 45
     regulations at 45 CFR part   ``Federal                                                CFR 90.4 includes
     90.                          financial                                                entities to which
                                  assistance''.                                            assistance is
                                                                                           extended indirectly,
                                                                                           through another
                                                                                           recipient].
    e. On the basis of
     handicap, in:
        1. Section 504 of the    Grants,            Any..............  Any..............  32 CFR 56.9(b)
         Rehabilitation Act of    cooperative                                              requires grants
         1973 (29 U.S.C. 794),    agreements, and                                          officer to obtain
         as implemented by        other awards                                             recipient's written
         Department of Justice    included in                                              assurance of
         regulations at 28 CFR    ``Federal                                                compliance and
         part 41 and DoD          financial                                                specifies what the
         regulations at 32 CFR    assistance''                                             assurance includes.
         part 56.                 definition at 32                                         Note that
                                  CFR 56.3(b).                                             requirements flow
                                                                                           down to subawards
                                                                                           [``recipient,''
                                                                                           defined at 32 CFR
                                                                                           56.3(g), includes
                                                                                           entities receiving
                                                                                           assistance indirectly
                                                                                           through other
                                                                                           recipients].

[[Page 44997]]

 
        2. The Architectural     Grant or loan....  Any..............  Construction or    ......................
         Barriers Act of 1968                                           alteration of
         (42 U.S.C. 4151, et                                            buildings or
         seq.).                                                         facilities,
                                                                        except those
                                                                        restricted to
                                                                        use only by able-
                                                                        bodied uniformed
                                                                        personnel.
Live Organisms--By signing this
 agreement or accepting funds
 under this agreement, the
 recipient assures that it will
 comply with applicable
 provisions of the following
 national policies concerning
 live organisms:
    a. For human subjects, the   Any..............  Any..............  Research,          32 CFR 219.103
     Common Federal Policy for                                          development,       requires each
     the Protection of Human                                            test, or           recipient to have a
     Subjects, codified by the                                          evaluation         Federally approved,
     Department of Health and                                           involving live     written assurance of
     Human Services at 45 CFR                                           human subjects,    compliance [it may be
     part 46 and implemented by                                         with some          HHS-approved, on file
     the Department of Defense                                          exceptions [see    with HHS; DoD-
     at 32 CFR part 219.                                                32 CFR part 219].  approved, on file
                                                                                           with a DoD Component;
                                                                                           or may need to be
                                                                                           obtained by the
                                                                                           grants officer for
                                                                                           the specific award].
    b. For animals:
        1. Rules on animal       Any..............  Any..............  Research,          Prior to making an
         acquisition,                                                   experimentation,   award under which
         transport, care,                                               or testing         animal-based
         handling, and use in 9                                         involving the      research, testing, or
         CFR parts 1-4,                                                 use of animals.    training is to be
         Department of                                                                     performed, DoD
         Agriculture rules                                                                 Directive 3216.1 \1\
         implementing the                                                                  requires
         Laboratory Animal                                                                 administrative review
         Welfare Act of 1966 (7                                                            of the proposal by a
         U.S.C. 2131-2156), and                                                            DoD veterinarian
         guidelines in the                                                                 trained or
         National Academy of                                                               experienced in
         Sciences (NAS) ``Guide                                                            laboratory animal
         for the Care and Use                                                              science and medicine,
         of Laboratory                                                                     as well as a review
         Animals'' (1996),                                                                 by the recipient's
         including the Public                                                              Institutional Animal
         Health Service Policy                                                             Care and Use
         and Government                                                                    Committee.
         Principles Regarding
         the Care and Use of
         Animals in Appendix D
         to the guide.
        2. Prohibitions on the   Any..............  Any..............  Use of DoD
         purchase or use of                                             appropriations
         dogs or cats for                                               for training on
         certain medical                                                treatment of
         training purposes, in                                          wounds.
         Section 8019 (10
         U.S.C. 2241 note) of
         the Department of
         Defense Appropriations
         Act, 1991 (Pub. Law
         101-511).
        3. Rules of the          Any..............  Any..............  Activities that
         Departments of                                                 may involve or
         Interior (50 CFR parts                                         impact wildlife
         10-24) and Commerce                                            and plants.
         (50 CFR parts 217-227)
         implementing laws and
         conventions on the
         taking, possession,
         transport, purchase,
         sale, export, or
         import of wildlife and
         plants, including the:
         Endangered Species Act
         of 1973 (16 U.S.C.
         1531-1543); Marine
         Mammal Protection Act
         (16 U.S.C. 1361-1384);
         Lacey Act (18 U.S.C.
         42); and Convention on
         International Trade in
         Endangered Species of
         Wild Fauna and Flora.

[[Page 44998]]

 
Debarment and Suspension--The    Any                All but foreign    Any..............
 recipient agrees to comply       nonprocurement     governments,
 with the requirements            transaction [see   foreign
 regarding debarment and          ``covered          governmental
 suspension in Subpart C of 32    transaction'' as   entities, and
 CFR part 25, which implements    specified in       others excluded
 E.O. 12549 [3 CFR, 1986 Comp.,   Subpart B of 32    at 32 CFR
 p. 189]; E.O. 12689 [3 CFR,      CFR part 25,       25.215(a).
 1989 Comp., p. 235]; and Sec.    especially
 2455 of Federal Acquisition      sections 25.210
 and Streamlining Act of 1994     and 25.215].
 (Pub. L. 103-355). The
 recipient also agrees to
 communicate the requirement to
 comply with Subpart C to
 persons at the next lower tier
 with whom the recipient enters
 into transactions that are
 ``covered transactions'' under
 Subpart B of 32 CFR part 25.
Hatch Act--The recipient agrees  Grants or loans..  State and local    All but employees
 to comply with the Hatch Act                        governments.       of educational
 (5 U.S.C. 1501-1508 and 7324-                                          or research
 7328), as implemented by the                                           institutions
 Office of Personnel Management                                         supported by
 at 5 CFR part 151, which                                               State; political
 limits political activity of                                           subdivision
 employees or officers of State                                         thereof; or
 or local governments whose                                             religious,
 employment is connected to an                                          philanthrop, or
 activity financed in whole or                                          cultural
 part with Federal funds.                                               organization.
Environmental Standards--By
 signing this agreement or
 accepting funds under this
 agreement, the recipient
 assures that it will:
    a. Comply with applicable    Any                Any..............  Any..............  Executive Order 11738
     provisions of the Clean      nonprocurement                                           establishes
     Air Act (42 U.S.C. 7401,     transaction [see                                         additional
     et seq.) and Clean Water     40 CFR 32.110].                                          responsibilities for
     Act (33 U.S.C. 1251, et                                                               grants officers.
     seq.), as implemented by
     Executive Order 11738 [3
     CFR, 1971-1975 Comp., p.
     799] and Environmental
     Protection Agency (EPA)
     rules at Subpart J of 40
     CFR part 32.
    b. Identify to the awarding
     agency any impact this
     award may have on:
        1. The quality of the    Any..............  Any..............  Any actions that   The Council on
         human environment, and                                         may affect the     Environmental
         provide help the                                               environment.       Quality's regulations
         agency may need to                                                                for implementing NEPA
         comply with the                                                                   are at 40 C.F.R.
         National Environmental                                                            parts 1500-1508.
         Policy Act (NEPA, at                                                              Executive Order 11514
         42 U.S.C. 4321, et                                                                [3 CFR, 1966-1970
         seq.) and to prepare                                                              Comp., p. 902], as
         Environmental Impact                                                              amended by Executive
         Statements or other                                                               Order 11991, sets
         required environmental                                                            policies and
         documentation. In such                                                            procedures for
         cases, the recipient                                                              considering actions
         agrees to take no                                                                 in the U.S. Executive
         action that will have                                                             Orders 11988 [3 CFR,
         an adverse                                                                        1977 Comp., p. 117]
         environmental impact                                                              and 11990 [3 CFR,
         (e.g., physical                                                                   1977 Comp., p. 121]
         disturbance of a site                                                             specify additional
         such as breaking of                                                               considerations, when
         ground) until the                                                                 actions involve
         agency provides                                                                   floodplains or
         written notification                                                              wetlands,
         of compliance with the                                                            respectively.
         environmental impact
         analysis process.

[[Page 44999]]

 
        2. Flood-prone areas,    Grants,            Any..............  Awards involving   The grants officer
         and provide help the     cooperative                           construction,      should inform the
         agency may need to       agreements, and                       land acquisition   recipient that 42
         comply with the          other                                 or development,    U.S.C.4012a prohibits
         National Flood           ``financial                           with some          awards for
         Insurance Act of 1968    assistance''                          exceptions [see    acquisition or
         and Flood Disaster       (see 42 U.S.C.                        42 U.S.C. 4001,    construction in flood-
         Protection Act of 1973   4003).                                et. seq.].         prone areas (Federal
         (42 U.S.C. 4001, et                                                               Emergency Management
         seq.), which require                                                              Agency publishes
         flood insurance, when                                                             lists of such areas
         available, for                                                                    in the Federal
         Federally assisted                                                                Register), unless
         construction or                                                                   recipient has
         acquisition in flood-                                                             required insurance.
         prone areas.                                                                      If action is in a
                                                                                           floodplain, Executive
                                                                                           Order 11988 [3 CFR,
                                                                                           1977 Comp., p. 117]
                                                                                           specifies additional
                                                                                           pre-award procedures
                                                                                           for Federal agencies.
                                                                                           Recipients are to
                                                                                           apply requirements to
                                                                                           subawards
                                                                                           (``financial
                                                                                           assistance,'' defined
                                                                                           at 42 U.S.C. 4003,
                                                                                           includes indirect
                                                                                           Federal assistance).
        3. Coastal zones, and    Grants,            State and local    Awards that may    16 U.S.C. 1456(d)
         provide help the         cooperative        governments,       affect the         prohibits approval of
         agency may need to       agreements, and    interstate and     coastal zone.      projects inconsistent
         comply with the          other ``Federal    other regional                        with a coastal
         Coastal Zone             assistance''       agencies.                             State's approved
         Management Act of 1972   [see 16 U.S.C.                                           management program
         (16 U.S.C. 1451, et      1456(d)].                                                for the coastal zone.
         seq.), concerning
         protection of U.S.
         coastal resources.
        4. Coastal barriers,     Grants,            Any..............  Awards that may    16 U.S.C. 3504-3505
         and provide help the     cooperative                           affect barriers    prohibit new awards
         agency may need to       agreements, and                       along the          for actions within
         comply with the          other                                 Atlantic and       Coastal Barrier
         Coastal Barriers         ``financial                           Gulf coasts and    System, except for
         Resource Act (16         assistance''                          Great Lakes'       certain purposes.
         U.S.C. 3501, et seq.),   (see 16 U.S.C.                        shores.            Requirements flow to
         concerning               3502).                                                   subawards (16 U.S.C.
         preservation of                                                                   3502 includes
         barrier resources.                                                                indirect assistance
                                                                                           as ``financial
                                                                                           assistance'').
        5. Any existing or       Any..............  Any..............  Awards that may
         proposed component of                                          affect existing
         the National Wild and                                          or proposed
         Scenic Rivers system,                                          element of
         and provide help the                                           National Wild
         agency may need to                                             and Scenic
         comply with the Wild                                           Rivers system.
         and Scenic Rivers Act
         of 1968 (16 U.S.C.
         1271, et seq)..
        6. Underground sources   Any..............  Any..............  Construction in    42 U.S.C. 300h-3(e)
         of drinking water in                                           any area with      precludes awards of
         areas that have an                                             aquifer that the   Federal financial
         aquifer that is the                                            EPA finds would    assistance for any
         sole or principal                                              create public      project that the EPA
         drinking water source,                                         health hazard,     administrator
         and provide help the                                           if contaminated.   determines may
         agency may need to                                                                contaminate a sole-
         comply with the Safe                                                              source aquifer so as
         Drinking Water Act (42                                                            to threaten public
         U.S.C. 300h-3).                                                                   health.
Drug-Free Workplace--The         Any financial      Any..............  Any, except where
 recipient agrees to comply       assistance,                           inconsistent
 with the requirements            including any                         with
 regarding drug-free workplace    grant or                              international
 in Subpart B (or Subpart C, if   cooperative                           obligations of
 the recipient is an              agreement [see                        the U.S. or the
 individual) of 32 CFR part 26,   ``award'' as                          laws or
 which implements sec. 5151-      broadly defined                       regulations of a
 5160 of the Drug-Free            at 32 CFR part                        foreign
 Workplace Act of 1988 (Pub. L.   26.605].                              government [see
 100-690, Title V, Subtitle D;                                          32 CFR 26.110].
 41 U.S.C. 701, et seq.).

[[Page 45000]]

 
National Historic Preservation-- Any..............  Any..............  Any construction,  36 CFR part 800
 The recipient agrees to                                                acquisition,       requires grants
 identify to the awarding                                               modernization,     officers to get
 agency any property listed or                                          or other           comments from the
 eligible for listing on the                                            activity that      Advisory Council on
 National Register of Historic                                          may impact a       Historic Preservation
 Places that will be affected                                           historic           before proceeding
 by this award, and to provide                                          property.          with Federally
 any help the awarding agency                                                              assisted projects
 may need, with respect to this                                                            that may affect
 award, to comply with Section                                                             properties listed on
 106 of the National Historic                                                              or eligible for
 Preservation Act of 1966 (16                                                              listing on the
 U.S.C. 470, et seq.), as                                                                  National Register of
 implemented by the Advisory                                                               Historic Places.
 Council on Historic
 Preservation regulations at 36
 CFR part 800 and Executive
 Order 11593 [3 CFR, 1971-1975
 Comp., p. 559].
Officials Not to Benefit--No     Grants,            Any..............  Any.               ......................
 member of or delegate to         cooperative
 Congress, or resident            agreements, and
 commissioner, shall be           other
 admitted to any share or part    ``agreements''.
 of this agreement, or to any
 benefit arising from it, in
 accordance with 41 U.S.C. 22.
Preference for U.S. Flag         Any..............  Any..............  Any agreement      ......................
 Carriers--Travel supported by                                          under which
 U.S. Government funds under                                            international
 this agreement shall use U.S.-                                         air travel may
 flag air carriers (air                                                 be supported by
 carriers holding certificates                                          U.S. Government
 under 49 U.S.C. 41102) for                                             funds.
 international air
 transportation of people and
 property to the extent that
 such service is available, in
 accordance with the
 International Air
 Transportation Fair
 Competitive Practices Act of
 1974 (49 U.S.C. 40118) and the
 interpretative guidelines
 issued by the Comptroller
 General of the United States
 in the March 31, 1981,
 amendment to Comptroller
 General Decision B138942.
Cargo Preference--The recipient  Grants,            Any..............  Any award where    46 CFR 381.7 requires
 agrees that it will comply       cooperative                           possibility        grants officers to
 with the Cargo Preference Act    agreements, and                       exists for ocean   include appropriate
 of 1954 (46 U.S.C. 1241), as     other awards                          transport of       clauses in award
 implemented by Department of     included in 46                        items procured     documents. It also
 Transportation regulations at    CFR 381.7.                            or obtained by     requires recipients
 46 CFR 381.7, which require                                            or on behalf of    to include
 that at least 50 percent of                                            the recipient,     appropriate clauses
 equipment, materials or                                                or any of the      in contracts using
 commodities procured or                                                recipient's        U.S. Government funds
 otherwise obtained with U.S.                                           contractors or     under agreements,
 Government funds under this                                            subcontractors.    where ocean transport
 agreement, and which may be                                                               of procured goods is
 transported by ocean vessel,                                                              possible [e.g., see
 shall be transported on                                                                   clause at 46 CFR
 privately owned U.S.-flag                                                                 381.7(b)].
 commercial vessels, if
 available.
Military Recruiters--[Grants     Grants and         Domestic           Any.               ......................
 officers shall include the       cooperative        institution of
 exact award provision            agreements.        higher education
 specified at 32 CFR 22.520].                        (see 32 CFR
                                                     22.520).
Relocation and Real Property     Grants,            ``State agency''   Any project that   42 U.S.C. 4630 and 49
 Acquisition--The recipient       cooperative        as defined in 49   may result in      CFR 24.4, as
 assures that it will comply      agreements, and    CFR part 24 to     real property      implemented by DoD at
 with 49 CFR part 24, which       other ``Federal    include persons    acquisition or     32 CFR part 259,
 implements the Uniform           financial          with authority     displacement       requires grants
 Relocation Assistance and Real   assistance''       to acquire         where State        officers to obtain
 Property Acquisition Policies    [see 49 CFR        property by        agency hasn't      recipients' assurance
 Act of 1970 (42 U.S.C. 4601,     24.2(j)].          eminent domain     opted to certify   of compliance.
 et seq.) and provides for fair                      under State law.   to Dept. of
 and equitable treatment of                                             Transportation
 persons displaced by Federally                                         in lieu of
 assisted programs or persons                                           providing
 whose property is acquired as                                          assurance.
 a result of such programs.
----------------------------------------------------------------------------------------------------------------
\1\ Electronic copies may be obtained at the Washington Headquarters Services Internet Site http://www.dtic.mil/whs/directives whs/directives. Paper copies may be obtained, at cost, from the National Technical Information Service, 5285
  Port Royal Road, Springfield, VA 22161.


[[Page 45001]]

PART 25--[AMENDED]

    19. The authority citation for part 25 continues to read as 
follows:

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 
6101 note); E.O. 12549 [3 CFR, 1986 Comp., p. 189]; E.O. 12689 [3 
CFR, 1989 Comp., p. 235].

    20. Section 25.425 is amended by revising paragraphs (c) and (d) 
and adding a paragraph (e) to read as follows:


Sec.  25.425  When do I check to see if a person is excluded or 
disqualified?

* * * * *
    (c) Approve a lower tier participant if agency approval of the 
lower tier participant is required;
    (d) Approve a principal in connection with a lower tier transaction 
if agency approval of the principal is required; or
    (e) Obligate additional funding (e.g., through an incremental 
funding action) for a pre-existing covered transaction with an 
institution of higher education, as provided in 32 CFR 22.520(e)(2).

PART 32--[AMENDED]

    21. The authority citation for part 32 continues to read as 
follows:

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


Sec.  32.2  [Amended]

    22. Section 32.2 introductory text is amended by revising ``32 CFR 
25.105'' to read ``32 CFR 25.1015.''

Appendix A to Part 32 [Amended]

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

Appendix A to Part 32--Contract Provisions

* * * * *
    8. Debarment and Suspension (E.O.s 12549 and 12689)--A contract 
award with an amount expected to equal or exceed $25,000 and certain 
other contract awards (see 32 CFR 25.220) shall not be made to 
parties listed on the government-wide Excluded Parties List System, 
in accordance with the DoD adoption at 32 CFR part 25 of the 
government-wide rule implementing E.O.s 12549 (3 CFR, 1986 Comp., p. 
189) and 12689 (3 CFR, 1989 Comp., p. 235), ``Debarment and 
Suspension.'' The Excluded Parties List System contains the names of 
parties debarred, suspended, or otherwise excluded by agencies, as 
well as parties declared ineligible under statutory or regulatory 
authority other than E.O. 12549.

PART 33--[AMENDED]

    24. The authority citation for part 33 continues to read as 
follows:

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


Sec.  33.26  [Amended]

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


Sec.  33.35  [Amended]

    26. Section 33.35 is amended by revising ``not make any award or 
permit any award (subgrant or contract) at any tier to'' to read 
``comply with the requirements of subpart C, 32 CFR part 25, including 
the restrictions on entering into a covered transaction with''.

PART 34--[AMENDED]

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

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


Sec.  34.16  [Amended]

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

Appendix A to Part 34 [Amended]

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

Appendix A to Part 34--Contract Provisions

* * * * *
    7. Debarment and Suspension (E.O.s 12549 and 12689)--A contract 
award with an amount expected to equal or exceed $25,000 and certain 
other contract awards (see 32 CFR 25.220) shall not be made to 
parties listed on the government-wide Excluded Parties List System, 
in accordance with the DoD adoption at 32 CFR part 25 of the 
government-wide rule implementing E.O.s 12549 (3 CFR, 1986 Comp., p. 
189) and 12689 (3 CFR, 1989 Comp., p. 235), ``Debarment and 
Suspension.'' The Excluded Parties List System contains the names of 
parties debarred, suspended, or otherwise excluded by agencies, as 
well as parties declared ineligible under statutory or regulatory 
authority other than E.O. 12549.

PART 37--[AMENDED]

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

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

    31. Section 37.130 is amended by:
    a. Redesignating paragraph (b)(2) as (b)(3);
    b. Revising paragraph (b)(1) and adding a new (b)(2) to read as 
follows:


Sec.  37.130  Which other parts of the DoD Grant and Agreement 
Regulations apply to TIAs?

* * * * *
    (b) * * *
    (1) Part 25 (32 CFR part 25) on nonprocurement debarment and 
suspension, which applies because it covers nonprocurement instruments 
in general;
    (2) Part 26 (32 CFR part 26), on drug-free workplace requirements, 
which applies because it covers financial assistance in general; and
* * * * *
    32. Appendix D to part 37 is revised to read as follows:

Appendix D to Part 37--What Common National Policy Requirements May 
Apply and Need To Be Included in TIAs?

    Whether your TIA is a cooperative agreement or another type of 
assistance transaction, as discussed in Appendix B to this part, the 
terms and conditions of the agreement must provide for recipients' 
compliance with applicable Federal statutes and regulations. This 
appendix lists some of the more common requirements to aid you in 
identifying ones that apply to your TIA. The list is not intended to 
be all-inclusive, however, and you may need to consult legal counsel 
to verify whether there are others that apply in your situation 
(e.g., due to a provision in the appropriations act for the specific 
funds that you are using or due to a statute or rule that applies to 
a particular program or type of activity).

A. Certifications

    One requirement that applies to all TIAs currently requires you 
to obtain a certification at the time of proposal. That requirement 
is in a Governmentwide common rule about lobbying prohibitions, 
which is implemented by the DoD at 32 CFR part 28. The prohibitions 
apply to all financial assistance. Appendix A to 32 CFR part 22 
includes a sample provision that you may use, to have proposers 
incorporate the certification by reference into their proposals.

B. Assurances That Apply to all TIAs

    DoD policy is to use certifications, as described in the 
preceding paragraphs, only for national policy requirements that 
specifically require them. The usual approach to communicating other 
national policy requirements to recipients is to incorporate them as 
award terms or conditions, or assurances. Appendix B to 32 CFR part 
22 lists national policy requirements that commonly apply to grants 
and cooperative agreements. It also has suggested language for 
assurances to incorporate the requirements in award documents. Of 
those requirements, the following six apply to all TIAs:
    1. Requirements concerning debarment and suspension in the 
Governmentwide common rule that the DoD has codified at 32 CFR part 
25. The requirements apply to all nonprocurement transactions.
    2. Requirements concerning drug-free workplace in the 
Governmentwide common rule that the DoD has codified at 32 CFR part 
26. The requirements apply to all financial assistance.
    3. Prohibitions on discrimination on the basis of race, color, 
or national origin in Title VI of the Civil Rights Act of 1964 (42 
U.S.C. 2000d, et seq.). These apply to all financial assistance. 
They require recipients to flow down the prohibitions to any 
subrecipients

[[Page 45002]]

performing a part of the substantive research program (as opposed to 
suppliers from whom recipients purchase goods or services). For 
further information, see item a. under the heading 
``Nondiscrimination'' in Appendix B to 32 CFR part 22.
    4. Prohibitions on discrimination on the basis of age, in the 
Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.). They apply 
to all financial assistance and require flow down to subrecipients. 
For further information, see item d. under the heading 
``Nondiscrimination'' in Appendix B to 32 CFR part 22.
    5. Prohibitions on discrimination on the basis of handicap, in 
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). They 
apply to all financial assistance and require flow down to 
subrecipients. For further information, see item e.1. under the 
heading ``Nondiscrimination'' in Appendix B to 32 CFR part 22.
    6. Preferences for use of U.S.-flag air carriers in the 
International Air Transportation Fair Competitive Practices Act of 
1974 (49 U.S.C. 40118), which apply to uses of U.S. Government 
funds.

C. Other Assurances

    Additional requirements listed in Appendix B to 32 CFR part 22 
may apply in certain circumstances, as follows:
    1. If construction work is to be done under a TIA or its 
subawards, it is subject to the prohibitions in Executive Order 
11246 on discrimination on the basis of race, color, religion, sex, 
or national origin. For further information, see item b. under the 
heading ``Nondiscrimination'' in Appendix B to 32 CFR part 22.
    2. If the research involves human subjects or animals, it is 
subject to the requirements in item a. or b., respectively, under 
the heading ``Live organisms'' in Appendix B to 32 CFR part 22.
    3. If the research involves actions that may affect the 
environment, it is subject to the National Environmental Policy Act, 
which is item b.1. under the heading ``Environmental Standards'' in 
Appendix B to 32 CFR part 22. It also may be subject to one or more 
of the other requirements in items b.2 through b.6. under that 
heading, which concern flood-prone areas, coastal zones, coastal 
barriers, wild and scenic rivers, and underground sources of 
drinking water.
    4. If the project may impact a historic property, it is subject 
to the National Historic Preservation Act of 1966 (16 U.S.C. 470, et 
seq.), as described under the heading ``National Historic 
Preservation'' in Appendix B to 32 CFR part 22.
    33. Appendix E to part 37 is revised to read as follows:

Appendix E to Part 37--What Provisions May a Participant Need To 
Include when Purchasing Goods or Services Under a TIA?

    A. As discussed in Sec.  37.705, you must inform recipients of 
any national policy requirements that flow down to their purchases 
of goods or services (e.g., supplies or equipment) under their TIAs. 
Note that purchases of goods or services differ from subawards, 
which are for substantive research program performance.
    B. Appendix A to 32 CFR part 34 lists seven national policy 
requirements that commonly apply to firms' purchases under grants or 
cooperative agreements. Of those seven, two that apply to all 
recipients' purchases under TIAs are:
    1. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). A contractor 
submitting a bid to the recipient for a contract award of $100,000 
or more must file a certification with the recipient that it has not 
and will not use Federal appropriations for certain lobbying 
purposes. The contractor also must disclose any lobbying with non-
Federal funds that takes place in connection with obtaining any 
Federal award. For further details, see 32 CFR part 28, the DoD's 
codification of the Governmentwide common rule implementing this 
amendment.
    2. Debarment and suspension. A contract award with an amount 
expected to equal or exceed $25,000 and certain other contract 
awards (see 32 CFR 25.220) shall not be made to parties listed on 
the government-wide Excluded Parties List System, in accordance with 
the DoD adoption at 32 CFR part 25 of the government-wide rule 
implementing E.O.s 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 
CFR, 1989 Comp., p. 235), ``Debarment and Suspension.'' The Excluded 
Parties List System contains the names of parties debarred, 
suspended, or otherwise excluded by agencies, as well as parties 
declared ineligible under statutory or regulatory authority other 
than E.O. 12549.
    C. One other requirement applies only in cases where 
construction work is to be performed under the TIA with Federal 
funds or recipient funds counted toward required cost sharing:
    1. Equal Employment Opportunity. Although construction work 
should happen rarely under a TIA, the agreements officer in that 
case should inform the recipient that Department of Labor 
regulations at 41 CFR 60-1.4(b) prescribe a clause that must be 
incorporated into construction awards and subawards. Further details 
are provided in Appendix B to Part 22 of the DoDGARs (32 CFR part 
22), in section b. under the heading ``Nondiscrimination.''

L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 04-16933 Filed 7-27-04; 8:45 am]
BILLING CODE 5001-06-P