[Federal Register Volume 73, Number 110 (Friday, June 6, 2008)]
[Proposed Rules]
[Pages 32417-32421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12558]



  Federal Register / Vol. 73, No. 110 / Friday, June 6, 2008 / Proposed 
Rules  

[[Page 32417]]


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OFFICE OF MANAGEMENT AND BUDGET

2 CFR Part 33


Requirements for Federal Funding Accountability and Transparency 
Act Implementation

AGENCY: Office of Federal Financial Management, Office of Management 
and Budget (OMB).

ACTION: Proposed guidance to agencies.

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SUMMARY: OMB proposes to issue guidance to agencies to establish 
requirements for federal financial assistance applicants, recipients, 
and subrecipients that are necessary for the implementation of the 
Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 
109-282, hereafter referred to as ``the Transparency Act'' or ``the 
Act''). An agency under the proposed guidance would require applicants 
other than individuals, with some specific exceptions, to have Dun and 
Bradstreet Data Universal Numbering System (DUNS) numbers and maintain 
current registrations in the Central Contractor Registration (CCR) 
database. The guidance also provides standard wording for an award term 
that each agency would include in its financial assistance awards. The 
award term would require recipients and subrecipients that are subject 
to the policy to have DUNS numbers, maintain current CCR registrations, 
and report subaward data that the implementation of the Transparency 
Act requires. This proposed implementation of the requirement for 
reporting of subawards under federal financial assistance awards 
parallels the Federal Acquisition Regulation implementation of that 
Transparency Act reporting requirement for subcontracts under federal 
procurement contracts (72 FR 51306, September 6, 2007).

DATES: Comments are due on or before August 5, 2008.

ADDRESSES: Due to potential delays in OMB's receipt and processing of 
mail sent through the U.S. Postal Service, we encourage respondents to 
submit comments electronically to ensure timely receipt. We cannot 
guarantee that comments mailed will be received before the comment 
closing date.
    Electronic mail comments may be submitted to: Marguerite Pridgen at 
[email protected]. Please include ``Transparency Act Guidance'' in 
the subject line and the full body of your comments in the text of the 
electronic message and not as an attachment. Please include your name, 
title, organization, postal address, telephone number, and e-mail 
address in the text of the message. Comments may also be submitted via 
facsimile to 202-395-3952.
    Comments may be mailed to Marguerite Pridgen, Office of Federal 
Financial Management, Office of Management and Budget, Room 6025, New 
Executive Office Building, Washington, DC 20503.
    Comments may also be sent via http://www.regulations.gov--a Federal 
E-Government Web site that allows the public to find, review, and 
submit comments on documents that agencies have published in the 
Federal Register and that are open for comment. Simply type 
``Transparency Act Guidance'' (in quotes) in the Comment or Submission 
search box, click Go, and follow the instructions for submitting 
comments. Comments received by the date specified above will be 
included as part of the official record.
    All responses will be summarized and included in the request for 
OMB approval.

FOR FURTHER INFORMATION CONTACT: Marguerite Pridgen, Office of Federal 
Financial Management, Office of Management and Budget, telephone (202) 
395-7844 (direct) or (202) 395-3993 (main office) and e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the Transparency Act

    The Act requires the Office of Management and Budget (OMB) to 
ensure the existence and operation of a single Web site at which the 
public may access and search data on federal financial assistance 
awards. It:
     Specifies that data on federal agencies' awards to non-
federal entities are to be available at the Web site by January 1, 
2008.
     Specifies that data on subawards under those federal 
awards are to be available by January 1, 2009.
     Exempts awards to individuals and individual transactions 
of less than $25,000.
    The Act identifies sixteen specific data elements that the Web site 
must include for each federal award and authorizes OMB to specify 
additional elements for other relevant information. The sixteen 
elements the Act specifies are:
     The name of the entity receiving the award;
     The amount of the award;
     The transaction type;
     The funding agency;
     The Catalog of Federal Domestic Assistance number;
     The program source;
     The location of the entity receiving the award, including 
four data elements for the city, State, Congressional district, and 
country;
     The location of the primary place of performance under the 
award, including four data elements for the city, State, Congressional 
district, and country;
     A unique identifier of the entity receiving the award; and
     A unique identifier of the parent entity of the recipient, 
should the recipient be owned by another entity.
    Although the Act does not identify specific data elements for 
subaward reporting, it does require that the data about subawards be 
disclosed in the same manner as the data for federal agencies' awards. 
It also requires OMB to conduct a pilot to determine how best to 
implement a reporting system under which the entity issuing a subaward 
is responsible for fulfilling the subaward reporting requirement.

II. Purposes of the Guidance

    The proposed guidance following this preamble has three purposes, 
all of which are related to the implementation of the Transparency Act. 
Those purposes, which are identified in section 33.100 of the guidance, 
are to establish:
     A requirement to use the Data Universal Numbering System 
(DUNS) number as the unique identifier for each entity receiving an 
award or subaward;
     Requirements for applicant, recipient and subrecipient 
registration in the Central Contractor Registration (CCR) as a way to 
maintain a reliable source of standard information about organizations 
for Transparency Act reporting and other purposes; and
     Requirements for recipient and subrecipient reporting of 
obligations of federal funds for subawards.
    The following paragraphs provide further information about these 
three requirements.
    DUNS number. The interagency task force that OMB established to 
help implement the Transparency Act selected the DUNS number as the 
unique identifier that the Act requires to be reported both for the 
recipient and, if applicable, its parent entity. The proposed guidance 
following this preamble therefore includes a Government-wide policy 
under which agencies will require federal financial assistance 
applicants and recipients, with a few exceptions, to have DUNS numbers. 
The proposed guidance thereby would expand a current OMB policy 
requiring use of DUNS numbers in conjunction with grants and 
cooperative agreements, by broadening the policy to loans and other 
types of

[[Page 32418]]

federal financial assistance awards. The current policy, the full text 
of which is in the Federal Register [68 FR 38402, June 27, 2003], was 
established by the July 15, 2003, OMB memorandum M-03-16, ``OMB Issues 
Grants Management Policies'' (available at http://www.whitehouse.gov/omb/memoranda/m03-16.pdf).
    Central Contractor Registration. The proposed guidance also would 
establish a requirement for applicant, recipient, and subrecipient 
registration in the CCR, as a way to help ensure consistent reporting 
of data about each entity and thereby make the data more useful to the 
public. Without the requirement, multiple agencies doing business with 
the same entity may use different variations of the entity's name, 
address, or parent organization when they each report on their awards 
to the entity. Using the DUNS number as the identifier for the entity, 
as described in the preceding paragraph, can partially alleviate that 
problem--each report of an award or subaward then can be linked to 
standard information about the award recipient in data bases of Dun and 
Bradstreet, Inc., which assigns and maintains DUNS numbers and 
associated organizational information. The proposed guidance requiring 
recipient and subrecipient registration in the CCR would further 
improve data quality by allowing a report of an award or subaward to 
also be linked to standard information that federal business partners 
provide about themselves to that Government repository.
    Subaward reporting. The Transparency Act requires reporting of 
information about subawards under federal financial assistance awards. 
The proposed guidance therefore includes a basic policy requiring 
recipients and subrecipients to report on subawards they make. For two 
reasons, however, it does not specify the data elements that must be 
reported about each subaward. One reason is that data elements are best 
maintained separately from the Code of Federal Regulations. The other 
reason is that the data elements may be refined due to lessons learned 
during the subaward pilot that The Transparency Act requires, so they 
need not be formally established until after the pilot. At a later 
date, separately from today's policy proposal, we will publish the data 
elements for subaward reporting in the Federal Register with an 
opportunity for comment before formally establishing them as the 
required set.

III. The Proposed Guidance

    The proposed guidance in 2 CFR part 33 is organized into three 
subparts:
     Subpart A states the purposes of the guidance, as 
described above in Section II of this preamble. It also specifies the 
types of federal financial assistance awards and types of recipient and 
subrecipient entities to which the proposed guidance would apply.
     Subpart B contains five sections that provide authorities 
and specify responsibilities for agencies. Section 33.200 states 
requirements for the content of agencies' program announcements, 
regulations, or other issuances providing instructions for applicants. 
Section 33.205 authorizes agencies to disqualify applicants that do not 
comply with requirements to provide a DUNS er and register in the CCR. 
Section 33.210 permits agencies to add DUNS number fields to 
application forms or formats that OMB cleared previously and section 
33.215 establishes requirements for agencies' information systems. 
Finally, section 33.220 specifies standard wording of an award term for 
federal financial assistance subject to The Transparency Act. The award 
term requires recipients and subrecipients to register in the CCR and 
report on subaward obligations that are subject to the Transparency Act 
reporting requirements.
     Subpart C contains definitions of terms used in 2 CFR part 
33.

IV. Invitation To Comment

    We invite comments from the affected public on all aspects of the 
proposed guidance to agencies, including the proposal to require use of 
the DUNS number, registration in the CCR, and reporting on subawards. 
All comments will be considered in developing the final guidance.

List of Subjects in 2 CFR Part 33

    Business and industry, Colleges and universities, Cooperative 
agreements, Farmers, Federal aid programs, Grant programs, Grants 
administration, Hospitals, Indians, Insurance, International 
organizations, Loan programs, Nonprofit organizations, Reporting and 
recordkeeping requirements, State and local governments, Subsidies.

Danny Werfel,
Deputy Controller.

Authority and Issuance

    For the reasons set forth above, the Office of Management and 
Budget proposes to amend 2 CFR chapter I by adding part 33 to read as 
follows:

PART 33--UNIVERSAL IDENTIFIER, CENTRAL CONTRACTOR REGISTRATION, AND 
SUBAWARD REPORTING

Sec.
Subpart A--General
33.100 Purposes of this part.
33.105 Applicability.
33.110 Deviations.
Subpart B--Policy
33.200 Requirements for program announcements, regulations, and 
application instructions.
33.205 Effect of noncompliance with requirements in Sec.  33.200.
33.210 Authority to modify agency application forms or formats.
33.215 Requirements for agency information systems.
33.220 Award term.
Subpart C--Definitions
33.300 Agency.
33.305 Award.
33.310 Central Contractor Registration (CCR).
33.315 Data Universal Numbering System (DUNS) Number.
33.320 Entity.
33.325 Federal financial assistance subject to the Transparency Act.
33.330 For-profit organization.
33.335 Foreign public entity.
33.340 Indian tribe (or ``federally recognized Indian tribe'').
33.345 Local government.
33.350 Nonprofit organization.
33.355 State.
33.360 Subaward.
33.365 Subrecipient.

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

Subpart A-General


Sec.  33.100  Purposes of this part.

    This part provides guidance to agencies to establish:
    (a) The Dun and Bradstreet (D&B) Data Universal Numbering System 
(DUNS) number as a universal identifier for federal financial 
assistance applicants, recipients, and subrecipients.
    (b) The Central Contractor Registration (CCR) as the repository for 
standard information about federal financial assistance applicants, 
recipients, and subrecipients.
    (c) Requirements for recipients' and subrecipients' reporting of 
information on subawards, as required by the Federal Funding 
Accountability and Transparency Act of 2006 (Pub. L. 109-282, hereafter 
referred to as ``the Transparency Act'').


Sec.  33.105  Applicability.

    (a) Types of awards. This part applies to an agency's grants, 
cooperative

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agreements, loans, and other federal financial assistance subject to 
the Transparency Act, as defined in Sec.  33.325.
    (b) Types of recipient and subrecipient entities. (1) General. 
Through an agency's implementation of the guidance in this part, this 
part applies to all entities, other than those excepted in paragraph 
(b)(2) of this section, that--
    (i) Apply for or receive agency awards; or
    (ii) Receive subawards under those awards.
    (2) Exceptions. (i) None of the requirements in this part apply to 
an individual who applies for or receives federal financial assistance 
as a natural person (i.e., unrelated to any business or non-profit 
organization he or she may own or operate in his or her name).
    (ii) The requirement in this part to maintain a current 
registration in the CCR does not apply to:
    (A) An agency of the Federal Government that receives an award from 
another agency.
    (B) A foreign entity applying for or receiving an award or subaward 
for a project or program performed outside the United States, if an 
agency deems it to be impractical for the entity to register in the 
CCR.
    (C) An entity to which an agency grants an exception based on a 
need to protect information about the entity from disclosure, to avoid 
compromising classified information or national security or 
jeopardizing the personal safety of the entity's clients.


Sec.  33.110  Deviations.

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

Subpart B--Policy


Sec.  33.200  Requirements for program announcements, regulations, and 
application instructions.

    (a) Each agency that awards grants, cooperative agreements, loans, 
or other Federal financial assistance subject to the Transparency Act 
must include the requirements described in paragraph (b) of this 
section in each program announcement, regulation, or other issuance 
containing instructions for applicants:
    (1) Under which awards may be made that are subject to Transparency 
Act reporting requirements; and
    (2) That either:
    (i) Is issued on or after the effective date of this part; or
    (ii) Has application or plan due dates or anticipated award dates 
after October 1, 2008.
    (b) The program announcement, regulation, or other issuance must 
require each entity that applies and does not have an exception under 
Sec.  33.105(b)(2) to:
    (1) Be registered in the CCR prior to submitting an application or 
plan;
    (2) Maintain a current CCR registration at all times during which 
it has an active federal award or an application or plan under 
consideration by an agency; and
    (3) Provide its DUNS number in each application or plan it submits 
to the agency.
    (c) For purposes of this policy:
    (1) The applicant is the entity that meets the agency's or 
program's eligibility criteria and has the legal authority to apply and 
to receive the award. For example, if a consortium applies for an award 
to be made to the consortium as the recipient, the consortium must have 
a DUNS number. If a consortium is eligible to receive funding under an 
agency program but the agency's policy is to make the award to a lead 
entity for the consortium, the DUNS number of the lead entity will be 
used.
    (2) A ``program announcement'' is any paper or electronic issuance 
that an agency uses to announce a funding opportunity, whether it is 
called a ``program announcement,'' ``notice of funding availability,'' 
``broad agency announcement,'' ``research announcement,'' 
``solicitation,'' or something else.


Sec.  33.205  Effect of noncompliance with requirements in Sec.  
33.200.

    (a) An agency may not make an award to an entity until the entity 
has complied with all applicable requirements to provide a valid DUNS 
number and register in the CCR.
    (b) If an entity does not comply with an applicable requirement to 
provide a DUNS number or register in the CCR, as specified in the 
program announcement or other instructions, the agency:
    (1) May determine that the applicant is not qualified to receive an 
award; and
    (2) May use that determination as a basis for making an award to an 
alternative applicant.


Sec.  33.210  Authority to modify agency application forms or formats.

    To implement the policies in Sec. Sec.  33.200 and 33.205, an 
agency may add a DUNS number field to application forms or formats 
previously approved by OMB, without having to obtain further approval 
to add the field.


Sec.  33.215  Requirements for agency information systems.

    Each agency that awards or administers grants, cooperative 
agreements, loans, or other federal financial assistance subject to the 
Transparency Act must ensure that systems processing information 
related to the awards, and other systems as appropriate, are able to 
accept and use the DUNS number as the universal identifier for 
financial assistance applicants and recipients.


Sec.  33.220  Award term.

    (a) To accomplish the purposes described in Sec.  33.100, an agency 
must include the following award term in each award to a non-federal 
entity of federal financial assistance subject to the Transparency Act:

    I. Central Contractor Registration and subaward reporting.
    a. Central Contractor Registration.
    1. Unless you are excepted from this requirement under 2 CFR 
33.105(b)(2), you as the recipient must maintain the currency of your 
information in the Central Contractor Registration (CCR) until you 
submit the final financial report required under this award or receive 
the final payment, whichever is later.
    2. If you are authorized to make subawards under this award and it 
is possible that you will make a subaward to an entity (see definition 
in paragraph d of this award term) with a total value of $25,000 or 
more in federal funds over the life of the subaward, you:
    i. Must notify potential subrecipients that no entity may receive 
funds for a subaward with a total value in that range unless the entity 
is registered in the CCR, which also requires that the subrecipient 
have a Data Universal Numbering System (DUNS) number.
    ii. May not make a subaward to an entity with a total value in that 
range, or obligate additional funds for the subaward, unless the entity 
is registered in the CCR.
    b. Reporting of first-tier subawards.
    1. Applicability. Unless you have a current exception from this 
requirement under paragraph (e) of the Federal Funding Accountability 
and Transparency Act of 2006 (Pub. L. 109-282), you must report each 
action that obligates $25,000 or more in federal funds under any 
subaward to an entity (see definitions in paragraph d of this award 
term).
    2. Where and when to report. You must report each action described 
in paragraph b.1 of this award term:
    i. To the http://WWW.USASpending.gov at [email protected].

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    ii. No later than 30 days after the date of the obligation.
    3. What to report. You must report the information about each 
action that the http://WWW.USASpending.gov specifies.
    c. Requirements for lower-tier subawards and obligating actions.
    1. Subawards. In any subaward that you make to an entity under this 
award that you expect to have a total value of $25,000 or more in 
federal funds over the life of the subaward, you must include an award 
term that:
    i. Provides the subrecipient with the federal award number or other 
unique federal identifying number for this award.
    ii. Requires the subrecipient to maintain a current registration in 
the CCR during the period of performance under the subaward; and
    iii. Requires the subrecipient, if it makes any obligating action 
to which paragraph b.1 of this award term applies, to:
    A. Report the action to either:
    (1) The http://WWW.USASpending.gov within 30 days of the date of 
obligation, providing the information about the action that the system 
specifies; or
    (2) You, if you prefer to have your subrecipient report each 
obligating action to you, in which case you must report the action to 
the http://WWW.USASpending.gov within 30 days of the subrecipient's 
obligation; and
    B. Ensure that the lower-tier subaward includes a term requiring 
the lower-tier subrecipient to comply with the requirements in 
paragraph c of this award term.
    2. Obligating actions. For each action that you take to obligate 
funding under a subaward described in paragraph c.1 of this award term, 
you must provide the subrecipient with the amount of federal funding 
that is included in the amount of funding obligated by the action.
    d. Definitions. For purposes of this award term:
    1. Central Contractor Registration (CCR) means the federal 
repository into which an entity must provide information required for 
the conduct of business as an award recipient or subrecipient. 
Additional information about registration procedures may be found at 
the CCR Internet site (currently at http://www.ccr.gov).
    2. Data Universal Numbering System (DUNS) number means the nine-
digit number established and assigned by Dun and Bradstreet, Inc. (D&B) 
to uniquely identify business entities. A DUNS number may be obtained 
from D&B by telephone or the Internet (currently at http://www.dunandbradstreet.com).
    3. Entity means all of the following, as defined at 2 CFR part 33, 
subpart C:
    i. A Governmental organization, which is a State, local government, 
or Indian tribe;
    ii. A foreign public entity;
    iii. A domestic or foreign nonprofit organization; and
    iv. A domestic or foreign for-profit organization.
    4. Subaward:
    i. This term means a legal instrument to provide support for the 
performance of any portion of the substantive project or program for 
which you received this award and that:
    A. You as the recipient awards to an eligible subrecipient; or
    B. A subrecipient at one tier awards to a subrecipient at the next 
lower tier.
    ii. The term does not include your procurement of property and 
services needed to carry out the project or program (for further 
explanation, see Sec.  --.210 of the attachment to OMB Circular A-133, 
``Audits of States, Local Governments, and Non-Profit Organizations'').
    iii. A subaward may be provided through any legal agreement, 
including an agreement that you or a subrecipient considers a contract.
    5. Subrecipient means an entity that:
    i. Receives a subaward from you or from another subrecipient under 
this award; and
    ii. Is accountable to you or the other subrecipient for the use of 
the federal funds provided by the subaward.

    (b) An agency may--
    (1) Reserve paragraphs b and c of the award term in paragraph (a) 
of this section if there is no possibility of a subaward with a total 
value of $25,000 or more in federal funds over the life of the 
subaward; and
    (2) Use different letters and numbers to designate the paragraphs 
of the award term, if necessary, to conform the system of paragraph 
designations with the one used in other terms and conditions in the 
agency's awards.

Subpart C--Definitions


Sec.  33.300  Agency.

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


Sec.  33.305  Award.

    Award means an award of Federal financial assistance subject to the 
Transparency Act, as defined in Sec.  33.325.


Sec.  33.310  Central Contractor Registration (CCR).

    Central Contractor Registration (CCR) has the meaning given in 
paragraph d.1 of the award term in Sec.  33.220.


Sec.  33.315  Data Universal Numbering System (DUNS) Number.

    Data Universal Numbering System (DUNS) Number has the meaning given 
in paragraph d.2 of the award term in Sec.  33.220.


Sec.  33.320  Entity.

    Entity has the meaning given in paragraph d.3 of the award term in 
Sec.  33.220.


Sec.  33.325  Federal financial assistance subject to the Transparency 
Act.

    Federal financial assistance subject to the Transparency Act means 
assistance that non-federal entities described in Sec.  33.105(b) 
receive or administer in the form of--
    (a) Grants;
    (b) Cooperative agreements;
    (c) Loans;
    (d) Loan guarantees;
    (e) Subsidies;
    (f) Insurance;
    (g) Food commodities;
    (h) Direct appropriations; and
    (i) Other financial assistance transactions that authorize the non-
federal entities' expenditure of federal funds.


Sec.  33.330  For-profit organization.

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


Sec.  33.335  Foreign public entity.

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

[[Page 32421]]

Sec.  33.340  Indian tribe (or ``federally recognized Indian tribe'').

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


Sec.  33.345  Local government.

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


Sec.  33.350  Nonprofit organization.

Nonprofit organization--

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


Sec.  33.355  State.

    State means--
    (a) Any State of the United States;
    (b) The District of Columbia;
    (c) Any agency or instrumentality of a State other than a local 
government or State-controlled institution of higher education;
    (d) The Commonwealths of Puerto Rico and the Northern Mariana 
Islands; and
    (e) The United States Virgin Islands, Guam, American Samoa, and a 
territory or possession of the United States.


Sec.  33.360  Subaward.

    Subaward has the meaning given in paragraph d.4 of the award term 
in Sec.  33.220.


Sec.  33.365  Subrecipient.

    Subrecipient has the meaning given in paragraph d.5 of the award 
term in Sec.  33.220.

[FR Doc. E8-12558 Filed 6-5-08; 8:45 am]
BILLING CODE 3110-01-P