[Federal Register Volume 85, Number 161 (Wednesday, August 19, 2020)]
[Rules and Regulations]
[Pages 51223-51229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16410]


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DEPARTMENT OF DEFENSE

Office of the Secretary

2 CFR Part 1122

[DOD-2016-OS-0053]
RIN 0790-AJ48


National Policy Requirements: General Award Terms and Conditions

AGENCY: Office of the Secretary, Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: This rule is the fourth of a sequence of six final rules 
published in this issue of the Federal Register. This final rule adds a 
new Department of Defense Grant and Agreement Regulations (DoDGARs) 
part to establish a consistent way for DoD Components to organize the 
portion of their general terms and conditions covering national policy 
requirements, such as nondiscrimination, environmental protection, and 
live organisms. It also provides standard wording of terms and 
conditions for national policy requirements that apply generally to DoD 
programs and awards.

DATES: This rule is effective October 19, 2020.

FOR FURTHER INFORMATION CONTACT: Barbara Orlando, Basic Research 
Office, telephone 571-372-6413.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Final Rule

    As explained in the Supplementary Information section of the first 
of the sequence of final rules in this section of this issue of the 
Federal Register, these six rules collectively make a major portion of 
needed updates to the Department of Defense Grant and Agreement 
Regulations (DoDGARs). The purpose of this rule, the fourth of the 
sequence, is to maximize uniformity of general terms and conditions 
addressing national policy requirements within DoD grants and 
cooperative agreements.
    As described in the second of the six final rules, 2 CFR part 1120 
of the DoDGARs establishes a standard award format for DoD Components' 
grants and cooperative agreements. National policy requirements are one 
of the four sub elements of an award's general terms and conditions. 
This added part---2 CFR part 1122---provides (1) a standard 
organization for the general terms and conditions addressing national 
policy requirements, and (2) standard wording of terms and conditions 
for the national policy requirements that commonly apply to DoD 
Components' grants and cooperative agreements.
    It should be noted that 2 CFR part 1122 applies to grants and 
cooperative agreements awarded to all types of recipient entities. That 
scope distinguishes part 1122 from the other final rules in 2 CFR parts 
1126 through 1138 published in the Federal Register, which address 
requirements only for Department of Defense (DoD) grants and 
cooperative agreements awarded to institutions of higher education, 
nonprofit organizations, States, local governments, and Indian tribes.

B. Revisions Implemented by This Rule

    This rule supersedes the Appendix of 32 CFR part 21, moving it to 2 
CFR part 1122. It provides an updated version of the National Policies 
that apply to all DoD financial assistance awards.

C. Legal Authorities for the Regulatory Action

    There are two statutory authorities for this final rule:
     10 U.S.C. 113, which establishes the Secretary of Defense 
as the head of the Department of Defense; and
     5 U.S.C. 301, which authorizes the head of an Executive 
department to

[[Page 51224]]

prescribe regulations for the governance of that department and the 
performance of its business.

II. Regulatory History

    In December 2014 (79 FR 76047), DoD established an interim 
implementation of the final guidance, ``Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements for Federal 
Awards,'' published by the Office of Management and Budget (OMB) on 
December 26, 2013, in 2 CFR part 200 (Uniform Guidance--available at 78 
FR 78589). DoD then published a Notice of Proposed Rulemaking (November 
7, 2016 (81 FR 78376)) that proposed to part title 2 part 1122 to 
provide standard wording of terms and conditions for national policy 
requirements that apply generally to DoD programs and awards.

III. Comments and Responses

    DoD received one public comment on the Notice of Proposed 
Rulemaking (NPRM) for 2 CFR part 1122, published on November 7, 2016. 
That comment was from a nonprofit organization representing groundwater 
professionals.
    Comment: The commenter pointed out that paragraph A.4.f of National 
Policy Article II (appendix B to 2 CFR part 1122), Environmental 
national policy requirements addressed only underground sources of 
drinking water that are designated as the sole or principal drinking 
water source (i.e., a ``sole-source aquifer''), thereby understating 
the need for protection of groundwater sources of drinking water and 
not fully reflecting the provisions of the Safe Drinking Water Act 
(SDWA). The commenter pointed out that the SDWA (1) also has provisions 
followed by States and public water systems to designate ``wellhead 
protection areas'' around and supplying groundwater to public water 
system wells (42 U.S.C. 300h-7, also cited as SDWA Section 1428); and 
(2) requires States and communities to delineate the areas to be 
protected from contamination around public water supply wells and to 
have a program to manage potential sources of contamination to minimize 
their threat to underground drinking water sources supplying 
communities' wells.
    Response: DOD agreed with the comment and amended the requirement 
by adding the wording ``. . . and in wellhead protection areas . . .'' 
to the specified paragraph after the words ``Underground sources of 
drinking water in areas that have an aquifer that is the sole or 
principal drinking water source . . .''
    DoD made one other substantive change to this part as follows:
    In National Policy (NP) Article IV, A.7 (appendix D to 2 CFR part 
1122), we added clarifying language to indicate that ``Fly America'' 
requirements apply to transport of persons, as well as personal 
effects. This change was deemed necessary because the language of the 
NPRM dealt only with air travel of property. We also added language to 
refer to both the statute and its implementing regulations. A 
comparable change was made in the third of the final rules published in 
today's Federal Register. The change was made in Appendix C to 2 CFR 
part 1132, specifically in Procurement (PROC) Article III, ``Contract 
provisions for recipient procurements,'' Section B.10.
    In addition, we made an editorial change for clarity and 
consistency with other of the final rules published in today's Federal 
Register. In several places, where the word ``agreement'' was used 
generically (rather than in the term ``cooperative agreement''), we 
changed it to ``award.''

IV. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive Orders (E.O.s) related to rulemaking. Below we summarize our 
analyses based on these statutes or E.O.s.

A. Regulatory Planning and Review

    Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review) direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated as a ``not significant'' 
regulatory action, and not economically significant, under section 3(f) 
of Executive Order 12866. Accordingly, the rule has not been reviewed 
by the Office of Management and Budget (OMB) under the requirements of 
these Executive Orders.
    Executive Order 13771 (Reducing Regulation and Controlling 
Regulatory Costs) directs agencies to reduce regulation and control 
regulatory costs and provides that ``for every one new regulation 
issued, at least two prior regulations be identified for elimination, 
and that the cost of planned regulations be prudently managed and 
controlled through a budgeting process.'' This rule is not subject to 
the requirements of this Executive Order because it is not significant 
under Executive Order 12866.
Costs
    DoD has found that this rule will not impose costs on the public, 
as there are not any costs associated with standardizing general terms 
and conditions addressing national policy requirements.
Benefits
    DoD determined that providing a central location and standard 
language within the DoDGARs for the terms and conditions of the most 
commonly applicable national policy requirements will help maximize 
long-term benefits in relation to costs and burdens for recipients of 
DoD grants and cooperative agreements.
    The principal benefits of this regulatory action are that 
recipients and others who use the content of awards from multiple DoD 
Component awarding offices should:
     Be able to find what they need within different offices' 
awards more quickly and easily due to the standard organization for 
general terms and conditions covering national policy requirements.
     Spend less time evaluating terms and conditions, because 
the standard wording for commonly applicable national policy 
requirements will obviate the need to interpret different wording 
various offices' awards include for the same requirement.
Alternatives
    1. No action--If no action was taken DoD would not be compliance 
with OMB requirements to move all financial assistance regulations to 2 
CFR.
    2. Next Best alternative--The next best alternative would be to add 
additional terms, beyond those found in the DoDGARs, which give 
background explanations for the terms that are in the DoDGARs. While 
the new terms may add additional context to the terms in the DoDGARs, 
it would be more beneficial to expand the definition of the term than 
to direct the public to additional terms.

B. Congressional Review Act (5 U.S.C. 801, et seq.)

    Under the Congressional Review Act, a major rule may not take 
effect until at least 60 days after submission to Congress of a report 
regarding the rule. A major rule is one that would have an annual 
effect on the economy of $100

[[Page 51225]]

million or more or have certain other impacts. This rule is not a major 
rule under the Congressional Review Act.

C. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. This rule will not impose any impacts on any entities. This 
means that there will be no economic impacts on any entities. 
Therefore, the Department of Defense under 5 U.S.C. 601 et seq. 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities.

D. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121, we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact the person in the FOR FURTHER 
INFORMATION CONTACT section of this rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any 1 year. Although this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Collection of Information

    The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3520) applies to 
collections of information using identical questions posed to, or 
reporting or recordkeeping requirements imposed on, ten or more members 
of the public. This rule does not call for a new collection of 
information under the PRA.

Federalism

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This proposed rule does not have federalism implications 
that warrant the preparation of a federalism assessment in accordance 
with Executive Order 13132.

List of Subjects in 2 CFR Part 1122

    Business and industry, Colleges and universities, Cooperative 
agreements, Grants administration, Hospitals, Human research subjects, 
Indians, Nonprofit organizations, Research misconduct, Small business, 
State and local governments.

0
Accordingly, 2 CFR chapter XI is amended by adding part 1122 to read as 
follows:

PART 1122--NATIONAL POLICY REQUIREMENTS: GENERAL AWARD TERMS AND 
CONDITIONS

Sec.
A--General
1122.1 Purpose of this part.
1122.2 Definition of ``national policy requirement.''
1122.3 Definitions of other terms as they are used in this part.
Subpart B--Terms and Conditions
1122.100 Purpose of this subpart.
1122.105 Where to find the terms and conditions.
1122.110 Organization of each article of national policy 
requirements.
1122.115 Cross-cutting national policy requirements.
1122.120 Other national policy requirements.
Appendix A Terms and condition for NP Article I, ``Nondiscrimination 
National Policy Requirements.''
Appendix B Terms and condition for NP Article II, ``Environmental 
National Policy Requirements.''
Appendix C Terms and conditions for NP Article III, ``National 
Policy Requirements Concerning Live Organisms.''
Appendix D Terms and conditions for NP Article IV, ``Other National 
Policy Requirements.''

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

Subpart A--General


Sec.  1122.1   Purpose of this part.

    (a) This part specifies a standard format and standard wording of 
general terms and conditions for Subdivision B of the general terms and 
conditions of DoD grants and cooperative agreements, which concerns 
national policy requirements.
    (b) It thereby implements:
    (1) Office of Management and Budget (OMB) guidance in 2 CFR 
200.210(b)(ii) and 200.300, as those paragraphs of 2 CFR part 200 
relate to national policy requirements for general terms and conditions 
of DoD grants and cooperative agreements to institutions of higher 
education and other nonprofit organizations, States, local governments, 
and Indian tribes.
    (2) National policy requirements, to the extent they apply, for 
general terms and conditions of DoD awards to for-profit firms, foreign 
organizations, and foreign public entities.


Sec.  1122.2   Definition of ``national policy requirement.''

    For the purposes of this chapter, a national policy requirement is 
a requirement:
    (a) That is prescribed by a statute, Executive order, policy 
guidance issued by the Executive Office of the President, or regulation 
that specifically refers to grants, cooperative agreements, or 
financial assistance in general;
    (b) With which a recipient of a grant or cooperative agreement must 
comply during the period of performance; and
    (c) That is outside subject matter areas covered by administrative 
requirements in subchapters D or E of this chapter.


Sec.  1122.3   Definition of other terms as they are used in this part.

    Because the meaning of some terms used in this part derive from 
their definitions in the statutes, Executive orders, or other sources 
of national policy requirements that this part implements, the meanings 
of those terms may vary from their meanings in other parts of the DoD 
Grant and Agreement Regulations. For example, some statutes define 
``State'' in ways that differ from each other and from the definition 
provided in 2 CFR part B. In each case, the definition in the source of 
the pertinent national policy requirement takes precedence over the 
definition in 2 CFR part B for the purposes of complying with that 
requirement.

[[Page 51226]]

Subpart B--Terms and Conditions


Sec.  1122.100   Purpose of this subpart.

    This subpart provides:
    (a) Direction to DoD Components on how to construct the four 
articles of national policy requirements for inclusion in the general 
terms and conditions of grants and cooperative agreements.
    (b) Standard wording for national policy requirements that are more 
commonly applicable to DoD Components' grants and cooperative 
agreements.


Sec.  1122.105   Where to find the terms and conditions.

    (a) Appendices A through D of this part provide standard wording of 
terms and conditions for the four articles of national policy 
requirements. The articles address the rights and responsibilities of 
the Government and the recipient related to those national policy 
requirements.
    (b) The following table shows which national policy terms and 
conditions may be found in each appendix to this part:

------------------------------------------------------------------------
                                  You will find terms
                                    and conditions         That would
                                specifying recipients'    appear in an
           In . . .                   rights and         award within NP
                                   responsibilities       Article . . .
                                   related to . . .
------------------------------------------------------------------------
Appendix A....................  Non[dash]discriminatio  I.
                                 n national policy
                                 requirements.
Appendix B....................  Environmental national  II.
                                 policy requirements.
Appendix C....................  National policy         III.
                                 requirements
                                 concerning live
                                 organisms.
Appendix D....................  Other national policy   IV.
                                 requirements.
------------------------------------------------------------------------

Sec.  1122.110   Organization of each article of national policy 
requirements.

    Each of NP Articles I through IV includes two sections.
    (a) Section A of each article includes national policy requirements 
that are cross-cutting in that their applicability extends to many or 
all DoD awards. Appendices A through D to this part provide standard 
wording for each of those requirements.
    (b) Section B of each article is the location in the award for 
program-specific national policy requirements. Section B is reserved in 
the standard wording of the articles provided in appendices A through D 
to this part.


Sec.  1122.115   Cross-cutting national policy requirements.

    (a) General requirement to include applicable cross-cutting 
requirements. A DoD Component's general terms and conditions must 
include the standard wording provided in appendices A through D to this 
part for each national policy requirement addressed in Section A of NP 
Articles I, II, III, and IV, respectively, that may apply either to:
    (1) A recipient of an award using those general terms and 
conditions; or
    (2) A subrecipient of a subaward under an award using those general 
terms and conditions.
    (b) Authority to reserve or omit inapplicable paragraphs. A DoD 
Component may reserve or omit any paragraph appendices A through D to 
this part provide for Section A of NP Articles I, II, III, and IV of 
its general terms and conditions if it determines that the national 
policy requirement addressed in that paragraph will not apply to any 
awards using those terms and conditions nor to any subawards under 
them.
    (c) Authority to use alternate wording. (1) A DoD Component may use 
different wording for a national policy requirement than is provided in 
appendices A through D to this part if it is authorized or required to 
do so by a statute or a regulation published in the Code of Federal 
Regulations after opportunity for public comment.
    (2) A DoD Component in that case:
    (i) Must include the wording required by the statute or regulation 
in Section B of the appropriate article. This will help a recipient 
recognize the wording as a variation of the usual DoD wording for the 
requirement.
    (ii) May either reserve the paragraph of Section A of the article 
in which that national policy requirement otherwise would appear or 
insert in that paragraph wording to refer the recipient to the 
paragraph in Section B of the article in which the requirement does 
appear.


Sec.  1122.120   Other national policy requirements.

    If a DoD Component determines that awards using its general terms 
and conditions, or subawards under them, are subject to a national 
policy requirement that is not addressed in the standard wording 
appendices A through D to this part provide for cross-cutting 
requirements, the DoD Component must include the requirement in its 
general terms and conditions. It should add the requirement in Section 
B of NP Article I, II, III, or IV, as most appropriate to the subject 
matter of the requirement.

Appendix A to Part 1122--Terms and Conditions for NP Article I, 
``Nondiscrimination National Policy Requirements''

    A DoD Component must use the following wording for NP Article I 
of its general terms and conditions in accordance with the 
provisions of Subpart B of this part.

NP Article I. Nondiscrimination national policy requirements. (December 
2014)

    Section A. Cross-cutting nondiscrimination requirements. By 
signing this award or accepting funds under this award, you assure 
that you will comply with applicable provisions of the national 
policies prohibiting discrimination:
    1. 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.), as 
implemented by Department of Defense (DoD) regulations at 32 CFR 
part 195.
    2. On the basis of gender, blindness, or visual impairment, in 
Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et 
seq.), as implemented by DoD regulations at 32 CFR part 196.
    3. On the basis of age, in the Age Discrimination Act of 1975 
(42 U.S.C. 6101 et seq.), as implemented by Department of Health and 
Human Services regulations at 45 CFR part 90.
    4. On the basis of disability, in the Rehabilitation Act of 1973 
(29 U.S.C. 794), as implemented by Department of Justice regulations 
at 28 CFR part 41 and DoD regulations at 32 CFR part 56.
    5. On the basis of disability in the Architectural Barriers Act 
of 1968 (42 U.S.C. 4151 et seq.) related to physically handicapped 
persons' ready access to, and use of, buildings and facilities for 
which Federal funds are used in design, construction, or alteration.
    Section B. [Reserved]

Appendix B to Part 1122--Terms and Conditions for NP Article II, 
``Environmental National Policy Requirements''

    A DoD Component must use the following wording for NP Article II 
of its general terms and conditions in accordance with the 
provisions of Subpart B of this part.

NP Article II. Environmental national policy requirements. (December 
2014)

    Section A. Cross-cutting environmental requirements. You must:
    1. You must comply with all applicable Federal environmental 
laws and regulations. The laws and regulations identified in this 
section are not intended to be a complete list.
    2. Comply with applicable provisions of the Clean Air Act (42 
U.S.C. 7401, et seq.) and Clean Water Act (33 U.S.C. 1251, et seq.).
    3. Comply with applicable provisions of the Lead-Based Paint 
Poisoning Prevention Act (42 U.S.C. 4821-4846), as implemented

[[Page 51227]]

by the Department of Housing and Urban Development at 24 CFR part 
35. The requirements concern lead-based paint in buildings owned by 
the Federal Government or housing receiving Federal assistance.
    4. Immediately identify to us, as the Federal awarding agency, 
any potential impact that you find this award may have on:
    a. The quality of the ``human environment'', as defined in 40 
CFR 1508.14, including wetlands; and provide any help we may need to 
comply with the National Environmental Policy Act (NEPA, at 42 
U.S.C. 4321 et seq.), the regulations at 40 CFR 1500-1508, and E.O. 
12114, if applicable; and assist us to prepare Environmental Impact 
Statements or other environmental documentation. In such cases, you 
may take no action that will have an environmental impact (e.g., 
physical disturbance of a site such as breaking of ground) or limit 
the choice of reasonable alternatives to the proposed action until 
we provide written notification of Federal compliance with NEPA or 
E.O. 12114.
    b. Flood-prone areas and provide any help we may need to comply 
with the National Flood Insurance Act of 1968, as amended by the 
Flood Disaster Protection Act of 1973 (42 U.S.C. 4001 et seq.), 
which require flood insurance, when available, for federally 
assisted construction or acquisition in flood-prone areas.
    c. A land or water use or natural resource of a coastal zone 
that is part of a federally approved State coastal zone management 
plan and provide any help we may need to comply with the Coastal 
Zone Management Act of 1972 (16 U.S.C. 1451, et seq.) including 
preparation of a Federal agency Coastal Consistency Determination.
    d. Coastal barriers along the Atlantic and Gulf coasts and Great 
Lakes' shores and provide help we may need to comply with the 
Coastal Barrier Resources Act (16 U.S.C. 3501 et seq.), concerning 
preservation of barrier resources.
    e. Any existing or proposed component of the National Wild and 
Scenic Rivers system and provide any help we may need to comply with 
the Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et seq.).
    f. Underground sources of drinking water in areas that have an 
aquifer that is the sole or principal drinking water source and in 
wellhead protection areas, and provide any help we may need to 
comply with the Safe Drinking Water Act (42 U.S.C. 300f et seq.).
    5. You must comply fully with the Endangered Species Act of 
1973, as amended (ESA, at 16 U.S.C. 1531 et seq.), and implementing 
regulations of the Departments of the Interior (50 CFR parts 10-24) 
and Commerce (50 CFR parts 217-227). You also must provide any help 
we may need in complying with the consultation requirements of ESA 
section 7 (16 U.S.C. 1536) applicable to Federal agencies or any 
regulatory authorization we may need based on the award of this 
grant. This is not in lieu of responsibilities you have to comply 
with provisions of the Act that apply directly to you as a U.S. 
entity, independent of receiving this award.
    6. You must fully comply with the Marine Mammal Protection Act 
of 1972, as amended (MMPA, at 16 U.S.C. 1361 et seq.) and provide 
any assistance we may need in obtaining any required MMPA permit 
based on an award of this grant.
    Section B. [Reserved]

Appendix C to Part 1122--Terms and Conditions for NP Article III, 
``National Policy Requirements Concerning Live Organisms''

    A DoD Component must use the following wording for NP Article 
III of its general terms and conditions in accordance with the 
provisions of Subpart B of this part.

NP Article III. National policy requirements concerning live organisms. 
(December 2014)

    Section A. Cross-cutting requirements concerning live organisms.
    1. Human subjects.
    a. You must protect the rights and welfare of individuals who 
participate as human subjects in research under this award and 
comply with the requirements at 32 CFR part 219, DoD Instruction 
(DoDI) 3216.02, 10 U.S.C. 980, and when applicable, Food and Drug 
Administration (FDA) regulations.
    b. You must not begin performance of research involving human 
subjects, also known as human subjects research (HSR), that is 
covered under 32 CFR part 219, or that meets exemption criteria 
under 32 CFR 219.101(b), until you receive a formal notification of 
approval from a DoD Human Research Protection Official (HRPO). 
Approval to perform HSR under this award is received after the HRPO 
has performed a review of your documentation of planned HSR 
activities and has officially furnished a concurrence with your 
determination as presented in the documentation.
    c. In order for the HRPO to accomplish this concurrence review, 
you must provide sufficient documentation to enable his or her 
assessment as follows:
    i. If the HSR meets an exemption criterion under 32 CFR 
219.101(b), the documentation must include a citation of the 
exemption category under 32 CFR 219.101(b) and a rationale 
statement.
    ii. If your activity is determined as ``non-exempt research 
involving human subjects'', the documentation must include:
    (A) Assurance of Compliance (i.e., Department of Health and 
Human Services Office for Human Research Protections (OHRP) 
Federalwide Assurance (FWA)) appropriate for the scope of work or 
program plan; and
    (B) Institutional Review Board (IRB) approval, as well as all 
documentation reviewed by the IRB to make their determination.
    d. The HRPO retains final judgment on what activities constitute 
HSR, whether an exempt category applies, whether the risk 
determination is appropriate, and whether the planned HSR activities 
comply with the requirements in paragraph 1.a of this section.
    e. You must notify the HRPO immediately of any suspensions or 
terminations of the Assurance of Compliance.
    f. DoD staff, consultants, and advisory groups may independently 
review and inspect your research and research procedures involving 
human subjects and, based on such findings, DoD may prohibit 
research that presents unacceptable hazards or otherwise fails to 
comply with DoD requirements.
    g. Definitions for terms used in paragraph 1 of this article are 
found in DoDI 3216.02.
    2. Animals.
    a. Prior to initiating any animal work under the award, you 
must:
    i. Register your research, development, test, and evaluation or 
training facility with the Secretary of Agriculture in accordance 
with 7 U.S.C. 2136 and 9 CFR 2.30, unless otherwise exempt from this 
requirement by meeting the conditions in 7 U.S.C. 2136 and 9 CFR 
parts 1-4 for the duration of the activity.
    ii. Have your proposed animal use approved in accordance with 
Department of Defense Instruction (DoDI) 3216.01, Use of Animals in 
DoD Programs by a DoD Component Headquarters Oversight Office.
    iii. Furnish evidence of such registration and approval to the 
grants officer.
    b. You must make the animals on which the research is being 
conducted, and all premises, facilities, vehicles, equipment, and 
records that support animal care and use available during business 
hours and at other times mutually agreeable to you, the United 
States Department of Agriculture Office of Animal and Plant Health 
Inspection Service (USDA/APHIS) representative, personnel 
representing the DoD component oversight offices, as well as the 
grants officer, to ascertain that you are compliant with 7 U.S.C. 
2131 et seq., 9 CFR parts 1-4, and DoDI 3216.01.
    c. Your care and use of animals must conform with the pertinent 
laws of the United States, regulations of the Department of 
Agriculture, and regulations, policies, and procedures of the 
Department of Defense (see 7 U.S.C. 2131 et seq., 9 CFR parts 1-4, 
and DoDI 3216.01).
    d. You must acquire animals in accordance with DoDI 3216.01.
    3. Use of Remedies.
    Failure to comply with the applicable requirements in paragraphs 
1-2 of this section may result in the DoD Component's use of 
remedies, e.g., wholly or partially terminating or suspending the 
award, temporarily withholding payment under the award pending 
correction of the deficiency, or disallowing all or part of the cost 
of the activity or action (including the federal share and any 
required cost sharing or matching) that is not in compliance. See 
OAR Article III.
    Section B. [Reserved]

Appendix D to Part 1122--Terms and Conditions for NP Article IV, 
``Other National Policy Requirements''

    A DoD Component must use the following wording for NP Article IV 
of its general terms and conditions in accordance with the 
provisions of Subpart B of this part.

NP Article IV. Other National Policy Requirements. (December 2014)

    Section A. Cross-cutting requirements.
    1. Debarment and suspension. You must comply with requirements 
regarding debarment and suspension in Subpart C of 2

[[Page 51228]]

CFR part 180, as adopted by DoD at 2 CFR part 1125. This includes 
requirements concerning your principals under this award, as well as 
requirements concerning your procurement transactions and subawards 
that are implemented in PROC Articles I through III and SUB Article 
II.
    2. Drug-free workplace. You must comply with drug-free workplace 
requirements in Subpart B of 2 CFR part 26, which is the DoD 
implementation of 41 U.S.C. chapter 81, ``Drug-Free Workplace.''
    3. Lobbying.
    a. You must comply with the restrictions on lobbying in 31 
U.S.C. 1352, as implemented by DoD at 32 CFR part 28, and submit all 
disclosures required by that statute and regulation.
    b. You must comply with the prohibition in 18 U.S.C. 1913 on the 
use of Federal funds, absent express Congressional authorization, to 
pay directly or indirectly for any service, advertisement or other 
written matter, telephone communication, or other device intended to 
influence at any time a Member of Congress or official of any 
government concerning any legislation, law, policy, appropriation, 
or ratification.
    c. If you are a nonprofit organization described in section 
501(c)(4) of title 26, United States Code (the Internal Revenue Code 
of 1968), you may not engage in lobbying activities as defined in 
the Lobbying Disclosure Act of 1995 (2 U.S.C., chapter 26). If we 
determine that you have engaged in lobbying activities, we will 
cease all payments to you under this and other awards and terminate 
the awards unilaterally for material failure to comply with the 
award terms and conditions.
    4. Officials not to benefit. You must comply with the 
requirement that no member of Congress shall be admitted to any 
share or part of this award, or to any benefit arising from it, in 
accordance with 41 U.S.C. 6306.
    5. Hatch Act. If applicable, you must comply with the provisions 
of the Hatch Act (5 U.S.C. 1501-1508) concerning political 
activities of certain State and local government employees, as 
implemented by the Office of Personnel Management at 5 CFR part 151, 
which limits political activity of employees or officers of State or 
local governments whose employment is connected to an activity 
financed in whole or part with Federal funds.
    6. Native American graves protection and repatriation. If you 
control or possess Native American remains and associated funerary 
objects, you must comply with the requirements of 43 CFR part 10, 
the Department of the Interior implementation of the Native American 
Graves Protection and Repatriation Act of 1990 (25 U.S.C., chapter 
32).
    7. Fly America Act. You must comply with the International Air 
Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 
40118), commonly referred to as the ``Fly America Act,'' and 
implementing regulations at 41 CFR 301-10.131 through 301-10.143. 
The law and regulations require that U.S. Government financed 
international air travel of passengers and transportation of 
personal effects or property must use a U.S. Flag air carrier or be 
performed under a cost sharing arrangement with a U.S. carrier, if 
such service is available.
    8. Use of United States-flag vessels. You must comply with the 
following requirements of the Department of Transportation at 46 CFR 
381.7, in regulations implementing the Cargo Preference Act of 1954:
    a. Pursuant to Public Law 83-664 (46 U.S.C. 55305), at least 50 
percent of any equipment, materials or commodities procured, 
contracted for or otherwise obtained with funds under this award, 
and which may be transported by ocean vessel, must be transported on 
privately owned United States-flag commercial vessels, if available.
    b. Within 20 days following the date of loading for shipments 
originating within the United States or within 30 working days 
following the date of loading for shipments originating outside the 
United States, a legible copy of a rated, ``on-board'' commercial 
ocean bill-of-lading in English for each shipment of cargo described 
in paragraph 8.a of this section must be furnished to both our award 
administrator (through you in the case of your contractor's bill-of-
lading) and to the Division of National Cargo, Office of Market 
Development, Maritime Administration, Washington, DC 20590.
    9. Research misconduct. You must comply with requirements 
concerning research misconduct in Enclosure 4 to DoD Instruction 
3210.7, ``Research Integrity and Misconduct.'' The Instruction 
implements the Governmentwide research misconduct policy that the 
Office of Science and Technology Policy published in the Federal 
Register (65 FR 76260, December 6, 2000, available through the U.S. 
Government Printing Office website: https://www.federalregister.gov/documents/2000/12/06/00-30852/executive-office-of-the-president-federal-policy-on-research-misconduct-preamble-for-research).
    10. Requirements for an Institution of Higher Education 
Concerning Military Recruiters and Reserve Officers Training Corps 
(ROTC).
    a. As a condition for receiving funds available to the DoD under 
this award, you agree that you are 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:
    i. The Secretary of a Military Department from maintaining, 
establishing, or operating a unit of the Senior Reserve Officers 
Training Corps (ROTC)--in accordance with 10 U.S.C. 654 and other 
applicable Federal laws--at that institution (or any subelement of 
that institution);
    ii. 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.
    iii. The Secretary of a Military Department or 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 provided to any other employer; or
    iv. Access by military recruiters for purposes of military 
recruiting to the names 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.
    b. If you are determined, using the procedures in 32 CFR part 
216, to be such an institution of higher education during the period 
of performance of this award, we:
    i. Will cease all payments to you of DoD funds under this award 
and all other DoD grants and cooperative agreements; and
    ii. May suspend or terminate those awards unilaterally for 
material failure to comply with the award terms and conditions.
    11. Historic preservation. You must identify to us any:
    a. Property listed or eligible for listing on the National 
Register of Historic Places that will be affected by this award, and 
provide any help we may need, with respect to this award, to comply 
with Section 106 of the National Historic Preservation Act of 1966 
(54 U.S.C. 306108), as implemented by the Advisory Council on 
Historic Preservation regulations at 36 CFR part 800 and Executive 
Order 11593, ``Identification and Protection of Historic 
Properties,'' [3 CFR, 1971-1975 Comp., p. 559]. Impacts to 
historical properties are included in the definition of ``human 
environment'' that require impact assessment under NEPA (See NP 
Article II, Section A).
    b. Potential under this award for irreparable loss or 
destruction of significant scientific, prehistorical, historical, or 
archeological data, and provide any help we may need, with respect 
to this award, to comply with the Archaeological and Historic 
Preservation Act of 1974 (54 U.S.C. chapter 3125).
    12. Relocation and real property acquisition. You must comply 
with applicable provisions of 49 CFR part 24, which implements the 
Uniform Relocation Assistance and Real Property Acquisition Policies 
Act of 1970 (42 U.S.C. 4601, et seq.) and provides for fair and 
equitable treatment of persons displaced by federally assisted 
programs or persons whose property is acquired as a result of such 
programs.
    13. Confidentiality of patient records. You must keep 
confidential any records that you maintain of the identity, 
diagnosis, prognosis, or treatment of any patient in connection with 
any program or activity relating to substance abuse education, 
prevention, training, treatment, or rehabilitation that is assisted 
directly or indirectly under this award, in accordance with 42 
U.S.C. 290dd-2.
    14. Pro-Children Act.
    You must comply with applicable restrictions in the Pro-Children 
Act of 1994 (Title 20, Chapter 68, subchapter X, Part B of the U.S. 
Code) on smoking in any indoor facility:
    a. Constructed, operated, or maintained under this award and 
used for routine or regular provision of kindergarten, elementary, 
or secondary education or library services to children under the age 
of 18.

[[Page 51229]]

    b. Owned, leased, or contracted for and used under this award 
for the routine provision of federally funded health care, day care, 
or early childhood development (Head Start) services to children 
under the age of 18.
    15. Constitution Day. You must comply with Public Law 108-447, 
Div. J, Title I, Sec. 111 (36 U.S.C. 106 note), which requires each 
educational institution receiving Federal funds in a Federal fiscal 
year to hold an educational program on the United States 
Constitution on September 17th during that year for the students 
served by the educational institution.
    16. Trafficking in persons. You must comply with requirements 
concerning trafficking in persons specified in the award term at 2 
CFR 175.15(b), as applicable.
    17. Whistleblower protections. You must comply with 10 U.S.C. 
2409, including the:
    a. Prohibition on reprisals against employees disclosing certain 
types of information to specified persons or bodies; and
    b. Requirement to notify your employees in writing, in the 
predominant native language of the workforce, of their rights and 
protections under that statute.
    Section B. [Reserved]

    Dated: July 24, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-16410 Filed 8-18-20; 8:45 am]
BILLING CODE 5001-06-P