[Federal Register Volume 70, Number 162 (Tuesday, August 23, 2005)]
[Rules and Regulations]
[Pages 49460-49478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16417]



[[Page 49459]]

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

Part III





Department of Defense





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



Office of the Secretary



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



32 CFR Parts 21, 22, 25, etc.



DoD Grants and Agreement Regulations; Final Rule

  Federal Register / Vol. 70, No. 162 / Tuesday, August 23, 2005 / 
Rules and Regulations  

[[Page 49460]]


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

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: Final rule.

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

SUMMARY: The Department of Defense (DoD) is revising 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 Governmentwide Internet site; 
require Governmentwide use of the Data Universal Numbering System 
(DUNS) number as the universal identifier for recipient organizations; 
and amend OMB Circular A-B3 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: These final rules are effective on September 22, 2005.

FOR FURTHER INFORMATION CONTACT: Mark Herbst, (703) 696-0372.

SUPPLEMENTARY INFORMATION:

A. Background

    On July 28, 2004 (69 FR 44990), DoD proposed to update the DoDGARs, 
the regulations that provide uniform policies and procedures for DoD 
Components' award and administration of grants and agreements. The 
proposed updates involved amendments to seven DoDGARs parts--32 CFR 
parts 21, 22, 25, 32, 33, 34 and 37--that are needed to conform those 
parts with Governmentwide and DoD policy changes and with DoD 
organizational and administrative changes.
    DoD received one substantive and one editorial comment on the 
proposed updates, both from DoD Components. The final rule largely is 
the same as proposed, with a few changes to: respond to the two 
comments; correct typographical errors and one omission in the July 28, 
2004, Federal Register document; and conform the characterization of 
the statutory requirement concerning military recruiters with a recent 
amendment to that statute. The changes are described at the end of this 
Supplementary Information section.

B. Summary of the Regulatory Updates

    The following paragraphs describe the changes to the DoDGARs and 
the reasons for them.
    Governmentwide standard format for program announcements. OMB 
issued a policy directive. ``Format for Financial Assistant 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 
those announcements, with a few exceptions, be posted on the Internet. 
The DoD is revising paragraphs (a), (a)(1) and (2) of 32 CFR 22.315 to 
implement this OMB policy directive (see 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 revising 
paragraph (a)(3) of 32 CFR 22.315 to implement this policy directive 
(see 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 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 electronic systems that handle data on grants and cooperative 
agreements must be able to accept the DUNS number. The DoD is adding a 
new section 32 CFR 21.565 to implement the requirement for agency 
electronic systems and a revised paragraph (a)(4) in 32 CFR 22.315 to 
address the requirement for including DUNS numbers in applications (see 
amendment numbers 2 and 7 following this preamble).
    Dollar threshold for single audit requirements. The OMB also 
revised OMB Circular A-33, ``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 $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 revising two sections of the 
DoDGARs--32 CFR 33.26 for awards to State, local, and other 
governmental organizations and 34.16 for awards to for-profit 
organizations--to replace the $300,000 threshold amount with the 
updated $500,000 threshold (see amendment numbers 25 and 28 following 
this preamble).
    Nonprocurement debarment and suspension and drug-free workplace 
requirements. The DoD joined thirty-two other Federal agencies to 
publish [68 FR 66534, November 26, 2003] updated Governmentwide 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 is making 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 amendment numbers 3, 5, 8, 9.a, 11.a, 15, 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 access to campuses, 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 (Public Law 
103-

[[Page 49461]]

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 (Public Law 104-106).
    With the recodification and consolidation of both requirements in 
10 U.S.C. 983, the DoD is revising section 32 CFR 22.520 of the DoDGARs 
and making conforming changes in sections 32 CFR 22.420 and 32 CFR 
25.425. The 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 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 amendment number 12 following this preamble for the 
changes to section 32 CFR 22.520 and amendment numbers 9.a and 20 for 
the conforming changes to section 32 CFR 22.420 and 32 CFR 25.425).
    Other Revisions. In addition to the revisions described above, the 
DoD is making other needed updates to the DoDGARs. Those updates are: 
(1) A revision of paragraphs (a)(3) and (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 
amendment numbers 6, 9.b, 11.b, 13, 14, 15, 16, and 18 following this 
preamble).

C. Changes From the Proposed Rulemaking Notice

    These final amendments include one change made in response to a 
comment from a DoD Component. The commenter pointed out the need for 32 
CFR 22.715, which lists functions of grants administration offices, to 
identify each office's responsibilities to: (1) Take appropriate action 
when a governmental, university, or nonprofit recipient has not 
complied with requirements to have a single audit and submit its audit 
report; and (2) issue timely management decisions on single audit 
findings that the Office of the Inspector General, DoD, refers to the 
office. Accordingly, we are adding a new paragraph 32 CFR 
22.715(a)(3)(iii) and revising paragraph 32 CFR 22.715(a)(4), rather 
than deleting it as proposed in July 2004 (see amendment number 15 
following this preamble).
    Another change in the final rule responds to an amendment to 10 
U.S.C. 983 that was made by Section 552 of the Ronald W. Reagan 
National Defense Authorization Act for Fiscal Year 2005 (Public Law 
108-375), after the rule was proposed for public comment. The amendment 
specifies that military recruiters' access to campuses and students 
must be at least equal in quality and scope to the access provided to 
any other employer. The final rule includes language to conform with 
that statutory change in two places: paragraph 22.520(c)(3), which 
describes the requirements of 10 U.S.C. 983, and the corresponding 
paragraph (C) of the award term under 22.520(e)(3) (see amendment 
number 12 following this preamble).
    We corrected in these final amendments two typographical errors 
that appeared in the proposed rulemaking notice. First, a reference in 
32 CFR 22.520(f)(1)(ii) to ``paragraphs (e)(5)(i) and (e)(5)(i)(iii) of 
this section'' is corrected to read ``paragraphs (e)(5)(i) and 
(e)(5)(iii) of this section''. Second, a reference in Appendix B to 
Part 22 to ``40 CFR 32.110'', a section in the Environmental Protection 
Agency's implementation of the Clean Air Act and Clean Water Act, is 
corrected to read ``40 CFR 32.1110'' (see amendment numbers 12 and 18 
following this preamble).
    These final amendments also include one amendment that was 
erroneously omitted in the proposed rulemaking notice. The additional 
amendment updates a reference in 32 CFR 22.605 to what is now Subpart E 
of 32 CFR part 21 (see amendment number 13.a 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 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 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 regulatory action will not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

Federalism (Executive Order 13132)

    This 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

    Administrative practice and procedure; 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.

32 CFR Part 34

    Accounting, Government property, Grant programs, Nonprofit

[[Page 49462]]

organizations, Reporting and recordkeeping requirements.

32 CFR Part 37

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


0
Accordingly, Title 32 of the Code of Federal Regulations, Chapter I, 
Subchapter B is amended as follows:

PART 21--[AMENDED]

0
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]

0
2. Subpart E is amended by adding a new section Sec.  21.565 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 the 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 for administers grants or 
cooperative agreements must ensure that DUNS numbers are accepted by 
each such system for which the DoD Component controls the system 
specifications. If the specifications of such a system are subject to 
another organization's control and the system can not accept DUNS 
numbers, the DoD Component must alert that organization to the OMB 
policy directive's requirement for use of DUNS numbers with a copy to: 
Director for Basic Sciences, ODDR&E, 3040 Defense Pentagon, Washington, 
DC 20301-3040.

    \6\ This OMB policy directive is available at the Internet site 
http://www.whitehouse.gov/omb/grants/grants.docs.html.
BILLING CODE 5001-06-M

[[Page 49463]]


0
3. Appendix A to part 21 is revised to read as follows:

Appendix A to Part 21--Instruments to Which DoDGARs Portions Apply
[GRAPHIC] [TIFF OMITTED] TR23AU05.027


[[Page 49464]]



PART 22--[AMENDED]

0
4. The authority citation for part 22 continues to read as follows:

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


0
5. Section 22.100 is amended as follows:
0
A. In paragraph (b)(1) by revising the phrase ``Governmentwide rules on 
debarment, suspension and drug-free workplace requirements'' to read 
``The Governmentwide rule on nonprocurement debarment and suspension'';
0
B. Redesignate paragraphs (b) (2) and (3) as paragraphs (b)(3) and (4) 
respectively; and
0
C. Add 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]

0
6. In Sec.  22.220, amend paragraph (a)(1) by revising ``Director of 
Defense Procurement (DDP)'' to read ``Director of Defense Procurement 
and Acquisition Policy (DDP&AP)'', and amend paragraph (a)(2) by 
revising ``DDP'' to read ``DDP&AP''.

0
7. Section 22.315 is amended by revising paragraph (a) 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 
Governmentwide 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 entitles 
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 Governmentwide 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.
    \3\ This OMB policy directive is available at the Internet site 
http://www.whitehouse.gov/omb/grants/grants.docs.html.
    (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 available at the Internet site 
http://www.whitehouse.gov/omb/grants/grants.docs.html.
    \3\ This OMB policy directive is available at the Internet site 
http://www.whitehouse.gov/omb/grants/grants.docs.html.
    \4\ This OMB policy directive is available at the Internet site 
http://www.whitehouse.gov/omb/grants/grants.docs.html.


Sec.  22.405  [Amended]

0
8. Section 22.405, paragraph (a) is amended by revising ``32 CFR 
22.115(a)'' to read ``32 CFR 25.110(a)''.

0
9. Section 22.420 is amended as follows:
0
a. Revision paragraph (c)(1) to read as set forth below; and
0
b. Redesignating the current footnote 2 in paragraph (b)(1) 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 Governmentwide 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 of 
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)(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.


0
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:


Sec.  22.505  Purpose.

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


0
11. Section 22.510 is amended by:
0
a. Revising paragraphs (a)(2)(ii)(A), (a)(2)(ii)(B), and (a)(2)(ii)(C) 
to read as set forth below; and
0
b. Redesignating the current footnote 5 in paragraph (b) as footnote 8 
and revising it to read as set forth below:

[[Page 49465]]

Sec.  22.510  Certifications, representations, and assurances.

* * * * *
    (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.


0
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 of Secretary of Homeland 
Security from gaining access to campuses, or access to student (who are 
17 years of age or older) or campuses, for purposes of military 
recruiting in a manner that is at least equal in quality and scope of 
the access to campuses and to students that is provided to any other 
employer; 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) Name, address, and telephone listings.
    (ii) Date and place of birth, levels of education, academic majors, 
degrees received, and the most recent education institution enrolled in 
by the student.
    (d) Policy. (1) Applicability to cooperative agreements. As a 
matter of DoD policy, the restriction 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, D.C. 20301-
3040.
    (e) Grants officers' responsibility. (1) A grants officers shall 
not award any grant or cooperative agreements 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 Parts 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 officers 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 officers shall include the following award term in 
each grant or cooperative agreements 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 for 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);

[[Page 49466]]

    (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 of Secretary of 
Homeland Security from gaining access to campuses, or access to 
students (who are 17 years of age or older) on campuses, for 
purposes of military recruiting in a manner that is at least equal 
in quality and scope to the access to campuses and to students that 
is provide to any other employer; or
    (D) Access by military recruiters for purposes of military 
recruiter to the name of students (who are 17 years of age or older 
and enrolled at that institution or any subelement of that 
institution); their address, telephone listing, date and places of 
birth, levels of education, academic majors, and degrees received; 
and the most recent education 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 agreements 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 
awards.''

    (4) If an institution of higher education refuses to accept the 
award of 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. This grants officer may award to an alternative recipient.
    (ii) Transmit the name of the institution, through appropriate 
channels, to the Director of Access Policy, Office of the Deputy Under 
Secretary of defense of 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 instition under 32 
CER 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 additoinal 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 of 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)(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 institution s for which 
post-award payment administration was not delegated to ONR. The ONR is 
to alert those offices to their responsibilities under paragraph (c)(5) 
of this section.

0
13. Section 22.605 is amended by:
0
a. Revising ``(see 32 CFR part 21, subpart C)'' to read ``(see 32 CFR 
part 21, subpart E)'' in paragraph (b); and
0
b. Redesignating the current footnote 6 in paragraph (c)(2) as footnote 
9 and revising it to read as follows:


Sec.  22.605  Grants officers' responsibilities.

* * * * *
    \9\ See footnote 8 to Sec.  22.510(b).


0
14. Section 22.710 is amended as follows:
0
a. Revising the introductory text to read as set forth below; and
0
b. Redesignating the current footnotes 7 through 9 in the introductory 
text and in 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 Contact 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).

0
15. Section 22.715 is amended by revising paragraphs (a)(3) and (4) to 
read as set forth below:


Sec.  22.715  Grants administration office functions.

* * * * *
    (a) * * *
    (3) Reviewing recipients' systems and compliance with Federal 
requirements, in coordination with any reviews and compliance audits 
performed by independent auditors under OMB Circular A-133, or in 
accordance with the terms and conditions of the award. This includes:
    (i) Reviewing recipients' financial management, property 
management, and purchasing systems, to determine the adequacy of such 
systems.
    (ii) Determining that recipients have drug-free workplace programs, 
as required under 32 CFR part 26.
    (iii) Determining that governmental, university and nonprofit 
recipients have complied with requirements in OMB Circular A-133, as 
implemented at 32 CFR 32.26 and 33.26, to have single audits and submit 
audit reports to the Federal Audit Clearinghouse. If a recipient has 
not had a required audit, appropriate action must be taken (e.g., 
contacting the recipient and coordinating with the Office of the 
Assistant Inspector General for Audit Policy and Oversight (OAIG(P&O)), 
Office of the Deputy Inspector General for Inspections and Policy, 
Office of the Inspector General of the Department of Defense (OIG, 
DoD), 400 Army-Navy Drive, Arlington, VA 22202).
    (4) Issuing timely management decisions, in accordance with DoD 
Directive 7640.2, ``Policy for Follow-up

[[Page 49467]]

on Contract Audit Reports,'' \13\ on single audit findings referred by 
the OIG, DoD, Directive 7600.10, ``Audits of States, Local Governments, 
and Non-Profit Organizations''.\14\

    \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.
    \14\ See footnote 13 to Sec.  22.715(a)(4).

0
16. Section 22.810 is amended by redesignating footnote 10 to paragraph 
(c)(3)(i) as footnote 15 and revising it to read as follows:


Sec.  22.810  Payments.

* * * * *

    \15\ See footnote 13 to Sec.  22.715(a)(4).

BILLING CODE 5001-06-M

[[Page 49468]]


0
17. Appendix A to Part 22 is revised to read as follows:

Appendix A to Part 22--Proposal Provision for Required Certification
[GRAPHIC] [TIFF OMITTED] TR23AU05.028


[[Page 49469]]


0
18. Appendix B to Part 22 is revised to read as follows:

Appendix B to Part 22--Suggested Award Provisions for National Policy 
Requirements That Often Apply
[GRAPHIC] [TIFF OMITTED] TR23AU05.029


[[Page 49470]]


[GRAPHIC] [TIFF OMITTED] TR23AU05.030


[[Page 49471]]


[GRAPHIC] [TIFF OMITTED] TR23AU05.031


[[Page 49472]]


[GRAPHIC] [TIFF OMITTED] TR23AU05.032


[[Page 49473]]


[GRAPHIC] [TIFF OMITTED] TR23AU05.033


[[Page 49474]]


[GRAPHIC] [TIFF OMITTED] TR23AU05.034


[[Page 49475]]


[GRAPHIC] [TIFF OMITTED] TR23AU05.035


[[Page 49476]]


[GRAPHIC] [TIFF OMITTED] TR23AU05.036


[[Page 49477]]



PART 25--[AMENDED]

0
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].


0
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]

0
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]

0
22. Section 32.2 introductory text is amended by revising ``32 CFR 
25.105'' to read ``32 CFR 25.1015''.

0
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 Governmentwide Excluded Parties List System, 
in accordance with the DoD adoption at 32 CFR part 25 of the 
Governmentwide 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]

0
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]

0
25. Section 33.26, paragraph (b) is amended by revising ``$300,000'' to 
read ``$500,000''.


Sec.  33.35  [Amended]

0
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]

0
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]

0
28. Section 34.16, paragraph (a) is amended by revising ``$300,000'' to 
read ``$500,000''.

0
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 Governmentwide Excluded Parties List System, 
in accordance with the DoD adoption at 32 CFR part 25 of the 
Governmentwide 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]

0
30. The authority citation for part 37 continues to read as follows:

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


0
31. Section 37.130 is amended by:
0
a. Revising paragraph (b)(1); and
0
b. Redesignating paragraph (b)(2) as (b)(3), 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
* * * * *

0
32. Appendix D to part 37 is revised to read as follows:

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

    What 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 statues and regulations. This 
appendix lists some of the more common requirements to aid you in 
identifying one 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 other 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 TIA's 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. Assurance That Apply to All TIAs

    DoD policy is to use certification, as described in the 
preceding paragraph, only for national policy requirement that 
specifically require them. The usual approach to a communicating 
other national policy requirements to recipients is to incorporate 
them as award terms of 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 in 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 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 performing a part of the substantive research program 
(as opposed to supplies from whom recipients purchase goods or 
services). For further information, see item 1. 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

[[Page 49478]]

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. Prohibition 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.


0
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 Governmentwide Excluded Parties List System, in accordance with 
the DoD adoption at 32 CFR part 25 of the Governmentwide 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.''

    Dated: August 15, 2005.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 05-16417 Filed 8-19-05; 9:53 am]
BILLING CODE 5001-06-M