[Federal Register Volume 85, Number 161 (Wednesday, August 19, 2020)]
[Rules and Regulations]
[Pages 51238-51248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16411]


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DEPARTMENT OF DEFENSE

Office of the Secretary

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

[DOD-2016-OS-0055]
RIN 0790-AJ50


DoD Grant and Agreement Regulations

AGENCY: Office of the Secretary, DoD.

ACTION: Final rule.

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SUMMARY: This final rule is the last in a sequence of six documents in 
this issue of the Federal Register that collectively establish for DoD 
grants and cooperative agreements an updated interim implementation of 
Government wide guidance on administrative requirements, cost 
principles, and audit requirements for Federal awards and make other 
needed updates to the DoD Grant and Agreement Regulations (DoDGARs). It 
removes two existing DoDGARs parts and revises four others to conform 
them with the 11 parts of the DoDGARs preceding this one in this 
section of this Federal Register.

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 six final rules in this section of this Federal 
Register, these rules collectively make a major portion of the updates 
to the Department of Defense Grant and Agreement Regulations (DoDGARs) 
that are needed in order to implement Office of Management and Budget 
(OMB) guidance at 2 CFR part 200 and for other purposes. The first five 
rules in the sequence represent eleven new DoDGARs parts located in 
chapter XI of title 2 of the Code of Federal Regulations (CFR), which 
will ultimately be the location in the CFR for all of the DoDGARs. This 
sixth and final rule in the sequence includes conforming changes to the 
portion of the DoDGARs that will remain for an interim period in 
subchapter C of chapter I of title 32 of the CFR, which is where all of 
the DoDGARs were originally located. Subsequent rounds of DoDGARs 
updates to be proposed for comment in the future will relocate the 
content of the remaining portion of the DoDGARs from title 32 to title 
2 of the CFR. The conforming changes in this rule are essential to 
ensuring internal consistency within the DoDGARs during this period of 
transition.

B. Revisions Implemented by This Rule

    This final rule removes two of the eight DoDGARs parts currently 
located in subchapter C of chapter I of 32 CFR, revises four parts in 
that subchapter, and makes no changes to the other two parts. 
Specifically, it:
     Removes existing DoDGARs parts 32 and 33 (32 CFR parts 32 
and 33). Part 32 of the DoDGARs (32 CFR part 32) was the CFR part in 
which DoD implemented OMB Circular A-110, which governed the 
administrative requirements for grant and cooperative agreement awards 
to institutions of higher education, hospitals, and other nonprofit 
organizations. Part 33 was the part in which DoD adopted the 
Governmentwide common rule implementing OMB Circular A 102, which 
governed the administrative requirements for grant and cooperative 
agreement awards to States, local governments, and Indian tribal 
governments. Both Circulars A 110 and A 102 were superseded by 
Governmentwide guidance for grants and cooperative agreements that OMB 
issued at 2 CFR part 200, ``Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards.'' DoD issued an 
interim final rule, pending updates to the DoDGARs to implement that 
OMB guidance, on December 19, 2014, at 2 CFR part 1103, to: (1) Direct 
DoD Components to conform requirements for recipients in their award 
terms and conditions with those in 2 CFR part 200,; and (2) grant a 
deviation from the administrative requirements in DoDGARs parts 32 and 
33. The removal of DoDGARs parts 32 and 33 from title 32 of the CFR 
resulting from this final rule precludes any apparent conflict between 
the administrative requirements in parts 32 and 33 and the 
administrative requirements in the new DoDGARs parts addressing general 
terms and conditions.
     Revises existing DoDGARs parts 21, 22, 34, and 37 (32 CFR 
parts 21, 22, 34, and 37). to update outdated references and (2) 
eliminate internal inconsistencies between the portion of the DoDGARs 
that will remain in 32 CFR for an interim period and the new DoDGARs 
parts in chapter XI of 2 CFR that are included in the five final rules 
preceding this one in this Federal Register.
     Includes updates to references and language in 32 CFR 
parts 21, 22, 34, and 37) that are not related to the deletion of parts 
32 and 33 or generally to the implementation of the guidance at 2 CFR 
part 200. Some of these changes are necessary to conform these parts of 
the DoDGARs in 32 CFR to statutes, regulations, or policy that were 
issued, revised, or repealed subsequent to the last revision of those 
parts.

C. Legal Authorities for the Regulatory Action

    There are two statutory authorities for this 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 prescribe regulations for the governance of that 
department and the performance of its business.

[[Page 51239]]

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 78442)) that proposed to remove two existing DoDGARs 
parts and revise four others in order to conform them with the 11 parts 
of the DoDGARs.
Comments and Responses
    We received no public comments on the November 7, 2016 NPRM 
proposing these technical amendments. We have, however, updated Sec.  
21.530 to change the title, delete paragraph (a), and renumber the 
remaining paragraphs, to accommodate changes in organizational 
responsibilities subsequent to the publication of the NPRM.

II. 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 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 
because this final rule does not create new requirements or additional 
burdens to the public. Additionally, this rule removes two of the eight 
DoDGARs parts currently located in subchapter C of chapter I of 32 CFR, 
revises four parts in that subchapter, and makes no changes to the 
other two parts.
Cost Savings
    DoD determined that these technical amendments to the DoD Grant and 
Agreement Regulations are necessary both to ensure consistency with the 
other rulemakings being published today and include the most current 
information available.
    The primary benefit of this regulatory action is to allow DoD to 
implement the portions of OMB's Governmentwide guidance on uniform 
administrative requirements, cost principles, and audit requirements 
that have an impact on its grant and cooperative agreement terms and 
conditions, rather than delaying these changes until all remaining 
parts of the DoDGARS are fully implemented in 2 CFR chapter XI.
    However, one of the changes in these technical amendments, which is 
not directly related to the implementation of 2 CFR part 200, will 
narrow the impacted population. That change relates to the audit 
requirements for grants and agreements with for-profit entities, which 
are found in 32 CFR part 34. This change is modeled on administrative 
requirements for grants and agreements with institutions of higher 
education, hospitals, and other non-profit organizations and increases 
the dollar threshold at which for-profit entities are required to 
receive an annual audit from $500,000 to $750,000 to parallel the 
threshold for States, local governments, Indian tribes, institutions of 
higher education, and nonprofit organizations located in 2 CFR 200.501. 
Though DoD anticipates that portion of the grant community will realize 
an annual cost saving, the fluid nature of the levels and source of 
funds, covered under these audit, requirements prohibits DoD from being 
able to calculate an annual cost saving.
Alternatives
    No action--If no action was taken DoD would not be compliance with 
OMB requirements to move all financial assistance regulations to 2 CFR.

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 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

[[Page 51240]]

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

    Business and Industry, Colleges and universities, Cooperative 
agreements, Grants administration, Hospitals, Indians, Nonprofit 
organizations, Small business, State and local governments.

    Accordingly, under the authority of 5 U.S.C. 301 and 10 U.S.C. 113, 
32 CFR chapter I, subchapter C is amended as follows:

PART 21--DoD GRANTS AND AGREEMENTS--GENERAL MATTERS

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.


Sec.  21.215   [Amended]

0
2. Section 21.215 is amended by removing ``Director of Defense Research 
and Engineering'' and adding ``Assistant Secretary of Defense for 
Research and Engineering (ASD(R&E))'' in its place.

0
3. Section 21.220 is revised to read as follows:


Sec.  21.220   What publications are in the DGARS?

    The DoD Grant and Agreement Regulations comprise the principal 
element of the DGARS. The ASD(R&E) also may publish DGARS policies and 
procedures in DoD instructions and other DoD publications, as 
appropriate.

0
4. Section 21.300 is amended by:
0
a. In paragraph (a), removing ``subpart D'' and adding ``subpart F'' in 
its place; and
0
b. Revising paragraph (b).
    The revision reads as follows:


Sec.  21.300  What instruments are subject to the DoD Grant and 
Agreement Regulations (DoDGARs)?

* * * * *
    (b) Note that each portion of the DoDGARs identifies the types of 
instruments to which it applies.
* * * * *


Sec.  21.320  [Amended]

0
5. Section 21.320 is amended by removing paragraph (d).

0
6. Revise Sec.  21.330 to read as follows:


Sec.  21.330   How are the DoDGARs published and maintained?

    (a) The DoD publishes the DoDGARs in the Code of Federal 
Regulations (CFR).
    (b) The location of the DoDGARs in the CFR currently is in 
transition. The regulations are moving from chapter I, subchapter C, 
title 32, to a new location in chapter XI, title 2 of the CFR. During 
the transition, there will be some parts of the DoDGARs in each of the 
two titles.
    (c) The DoD publishes updates to the DoDGARs in the Federal 
Register for public comment.
    (d) A standing working group recommends revisions to the DoDGARs to 
the ASD(R&E). The ASD(R&E), Director of Defense Procurement, and each 
Military Department must be represented on the working group. Other DoD 
Components that make or administer awards may also nominate 
representatives. The working group meets when necessary.

0
7. Section 21.335 is amended by revising paragraph (b) to read as 
follows:


Sec.  21.335   Who can authorize deviations from the DoDGARs?

* * * * *
    (b) The ASD(R&E) or his or her designee must approve in advance any 
deviation for a class of awards. Note that, as described at 2 CFR 
1126.3, OMB concurrence also is required for some class deviations from 
requirements included in awards to institutions of higher education, 
nonprofit organizations, States, local governments, and Indian tribes.

0
8. Section 21.340 is amended by revising paragraph (a) to read as 
follows:


Sec.  21.340   What are the procedures for requesting and documenting 
deviations?

    (a) DoD Components must submit copies of justifications and agency 
approvals for individual deviations and written requests for class 
deviations to: Principal Deputy Assistant Secretary of Defense for 
Research and Engineering, ATTN: Basic Research, 3030 Defense Pentagon, 
Washington, DC 20301-3030.
* * * * *


Sec.  21.505  [Amended]

0
9. Section 21.505 is amended by removing ``domestic assistance 
programs'' and adding ``assistance programs'' in its place.


Sec.  21.510  [Amended]

0
10. Section 21.510 is amended by:
0
a. Removing ``OMB Circular A-89'' and adding ``OMB guidance at 2 CFR 
200.202'' in its place;
0
b. Removing ``domestic assistance programs'' and adding ``assistance 
programs'' in its place;
0
c. Removing ``and maintaining the Federal Assistance Programs Retrieval 
System, a computerized data base of the information''; and
0
d. Removing footnote 4.

0
11. Section 21.515 is revised to read as follows:


Sec.  21.515   Who reports the information for the CFDA?

    (a) Each DoD Component that provides financial assistance must:
    (1) Report to the Defense Assistance Awards Data System (DAADS) 
Administrator all new programs and changes as they occur or as the DoD 
Component submits its annual updates to existing CFDA information. 
DAADS is further described in Sec. Sec.  21.520 through 21.555.
    (2) Identify to the DAADS Administrator a point-of-contact who will 
be responsible for reporting the program information and for responding 
to inquiries related to it.
    (b) The DAADS Administrator is the Department of Defense's single 
liaison with whom DoD Components that collect and compile such program 
information work to report the information to OMB and GSA.

0
12. Section 21.520 is amended by revising paragraph (b) to read as 
follows:


Sec.  21.520   What are the purposes of the Defense Assistance Awards 
Data System (DAADS)?

* * * * *

[[Page 51241]]

    (b) A basis for meeting Governmentwide requirements to report to 
USASpending.gov (or any successor site designated by OMB) and for 
preparing other recurring and special reports to the President, the 
Congress, the Government Accountability Office, and the public.
* * * * *


Sec.  21.525  [Amended]

0
13. Section 21.525 is amended by removing ``Deputy Director, Defense 
Research and Engineering (DDDR&E)'' and adding ``Principal Deputy 
Assistant Secretary of Defense for Research and Engineering 
(PDASD(R&E))'' in its place.

0
14. Section 21.530 is revised to read as follows:


Sec.  21.530   What are the responsibilities of the DAADS 
Administrator?

    The DAADS Administrator, consistent with guidance issued by the 
PDASD(R&E):
    (a) Processes DAADS information twice a month and prepares 
recurring and special reports using such information.
    (b) Prepares, updates, and disseminates instructions for reporting 
information to the DAADS. The instructions are to specify procedures, 
formats, and editing processes to be used by DoD Components, including 
record layout, submission deadlines, media, methods of submission, and 
error correction schedules.


Sec.  21.535  [Amended]

0
15. Section 21.535 is amended in paragraph (d) by removing ``to the 
DIOR, WHS, at the address given in Sec.  21.555(a). DIOR, WHS serves as 
the central point'' and adding ``to the DAADS administrator. The DAADS 
Administrator serves as the central point'' in its place.

0
16. Section 21.540 is amended by revising paragraphs (b) and (c) to 
read as follows:


Sec.  21.540   What are the duties of the DoD Components' central 
points for the DAADS?

* * * * *
    (b) Collect information required by the DAADS User Guide from those 
contracting activities, and report it to the DAADS Administrator, in 
accordance with Sec. Sec.  21.545 through 21.555. Note that the DAADS 
User Guide, which a registered DAADS user may find at the Resources 
section of the DAADS website (https://www.dmdc.osd.mil/daads/), 
provides further information about required data elements and 
instructions for submitting data.
    (c) Submit to the DAADS Administrator any recommended changes to 
the DAADS.

0
17. Section 21.555 is revised to read as follows:


Sec.  21.555   When and how must DoD Components report to the DAADS?

    DoD Components must report:
    (a) Each obligating or deobligating action no later than 15 days 
after the date of the obligation or deobligation. Doing so enables 
DAADS to comply with the deadline in the Federal Funding Accountability 
and Transparency Act of 2006 (Pub. L. 109-282; 31 U.S.C. 6101 note) to 
report to the Governmentwide data system (USASpending.gov) established 
to implement requirements of that Act.
    (b) Using a method and in a format permitted either by the DAADS 
User Guide described in Sec.  21.540(b) or by agreement with the DAADS 
Administrator.


Sec.  21.565  [Amended]

0
18. Section 21.565 is amended by:
0
a. Redesignating footnote number 6 as footnote number 2; and
0
b. Removing ``Director for Basic Sciences, ODDR&E'' and adding 
``Director for Basic Research, OASD(R&E)'' in its place.

0
19. Appendix A is revised to read as follows:

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

    I. For each DoDGARs part that DoD already has adopted in chapter 
XI of title 2 of the Code of Federal Regulations (CFR), the 
following table summarizes the general subject area that the part 
addresses and its applicability. All of the DoDGARs ultimately will 
be located in chapter XI of 2 CFR.

------------------------------------------------------------------------
                               Which addresses . .
        DoDGARs . . .                   .             Applies to . . .
------------------------------------------------------------------------
Part 1104...................  DoD's interim         grants and
                               implementation of     cooperative
                               the OMB guidance in   agreements other
                               2 CFR part 200.       than TIAs.
Part 1108 (2 CFR part 1108).  Definitions of terms  terms used
                                                     throughout the
                                                     DoDGARs in chapter
                                                     XI of 2 CFR other
                                                     than the portion
                                                     containing
                                                     regulations
                                                     implementing
                                                     specific national
                                                     policy requirements
                                                     that provide their
                                                     own definitions of
                                                     terms.
Part 1120 (2 CFR part 1120).  Award format........  grants and
                                                     cooperative
                                                     agreements, other
                                                     than TIAs.
Part 1122 (2 CFR part 1122).  National policy       grants and
                               requirements          cooperative
                               general award terms   agreements other
                               and conditions.       than TIAs. Portions
                                                     of this part apply
                                                     to TIAs, but only
                                                     as 32 CFR part 37
                                                     refers to them and
                                                     makes them apply.
Part 1125 (2 CFR part 1125).  Governmentwide        nonprocurement
                               debarment and         generally,
                               suspension            including grants,
                               requirements.         cooperative
                                                     agreements, TIAs,
                                                     and any other
                                                     instruments that
                                                     are ``covered
                                                     transactions''
                                                     under OMB guidance
                                                     in 2 CFR 180.210
                                                     and 180.215, as
                                                     implemented by 2
                                                     CFR part 1125,
                                                     except acquisition
                                                     transactions to
                                                     carry out prototype
                                                     projects (see 2 CFR
                                                     1125.20).
Parts 1126, 1128, 1130,       Administrative        cost-type grants and
 1132, 1134, 1136, and 1138    Requirements Terms    cooperative
 (subchapter D of 2 CFR        and Conditions for    agreements other
 chapter XI).                  Cost[dash]type        than TIAs. Portions
                               Awards to Nonprofit   of this subchapter
                               and Governmental      apply to TIAs, but
                               Entities.             only as 32 CFR part
                                                     37 refers to them
                                                     and makes them
                                                     apply.
------------------------------------------------------------------------

    II. For each DoDGARs part that will remain in subchapter C of 
chapter I of title 32 of the CFR, pending completion of the DoDGARs 
updating needed to fully implement OMB guidance in 2 CFR part 200 
and for other purposes, the following table summarizes the general 
subject area that the part addresses and its applicability. All of 
the substantive content of these DoDGARs parts ultimately will be 
located in new parts in chapter XI of 2 CFR.

[[Page 51242]]



------------------------------------------------------------------------
                               which addresses . .
        DoDGARs . . .                   .             applies to . . .
------------------------------------------------------------------------
Part 21 (32 CFR part 21),     The Defense Grant     ``awards,'' which
 all but subparts D and E.     and Agreement         are grants,
                               Regulatory System     cooperative
                               and the DoD Grant     agreements,
                               and Agreement         technology
                               Regulations.          investment
                                                     agreements (TIAs),
                                                     and other
                                                     nonprocurement
                                                     instruments subject
                                                     to one or more
                                                     parts of the
                                                     DoDGARs.
Part 21 (32 CFR part 21),     Authorities and       grants, cooperative
 subpart D.                    responsibilities      agreements, and
                               for assistance        TIAs.
                               award and
                               administration.
Part 21 (32 CFR part 21),     DoD Components'       grants, cooperative
 subpart E.                    information           agreements, TIAs,
                               reporting             and other
                               requirements.         nonprocurement
                                                     instruments subject
                                                     to reporting
                                                     requirements in 31
                                                     U.S.C. chapter 61.
Part 22 (32 CFR part 22)....  DoD grants officers'  grants and
                               responsibilities      cooperative
                               for award and         agreements other
                               administration of     than TIAs. Portions
                               grants and            of this part apply
                               cooperative           to TIAs, but only
                               agreements.           as 32 CFR part 37
                                                     refers to them and
                                                     makes them apply.
Part 26 (32 CFR part 26)....  Governmentwide        grants, cooperative
                               drug[dash]free        agreements and
                               workplace             other financial
                               requirements.         assistance
                                                     instruments,
                                                     including TIAs,
                                                     that are included
                                                     in the definition
                                                     of ``award'' at 32
                                                     CFR 26.605.
Part 28 (32 CFR part 28)....  Governmentwide        grants, cooperative
                               restrictions on       agreements and
                               lobbying.             other financial
                                                     assistance
                                                     instruments,
                                                     including TIAs,
                                                     that are included
                                                     in the definitions
                                                     of ``Federal
                                                     grant'' and
                                                     ``Federal
                                                     cooperative
                                                     agreement'' at 32
                                                     CFR 28.105.
Part 34 (32 CFR part 34)....  Administrative        grants and
                               requirements for      cooperative
                               grants and            agreements other
                               agreements with       than TIAs
                               for[dash]profit       (``award,'' as
                               organizations.        defined in 32 CFR
                                                     34.2). Portions of
                                                     this part apply to
                                                     TIAs, but only as
                                                     32 CFR part 37
                                                     refers to them and
                                                     makes them apply.
Part 37 (32 CFR part 37)....  Agreements officers'  TIAs. Note that this
                               responsibilities      part refers to
                               for award and         other portions of
                               administration of     DoDGARs that apply
                               TIAs.                 to TIAs.
------------------------------------------------------------------------

PART 22--DoD GRANTS AND AGREEMENTS--AWARD AND ADMINISTRATION

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

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

0
21. Section 22.100 is revised to read as follows:


Sec.  22.100  Purpose.

    This part outlines grants officers' and DoD Components' 
responsibilities related to the award and administration of grants and 
cooperative agreements.


Sec.  22.220  [Amended]

0
22. Section 22.220 is amended by:
0
a. In paragraph (a)(2), removing ``Director of Defense Research and 
Engineering (DDR&E)'' and adding ``Assistant Secretary of Defense for 
Research and Engineering (ASD (R&E))'' in its place; and
0
b. In paragraph (b), removing ``DDR&E'' everywhere it appears and 
adding ``ASD (R&E)'' in its place.


Sec.  22.310  [Amended]

0
23. Section 22.310 is amended in paragraph (b)(1)(iii) by removing 
``Deputy Director, Defense Research and Engineering'' and adding 
``Principal Deputy Assistant Secretary of Defense for Research and 
Engineering'' in its place.


Sec.  22.315  [Amended]

0
24. Section 22.315 is amended in paragraph (a)(3) by removing ``http://www.FedGrants.gov'' and adding ``http://www.Grants.gov'' in its place.


Sec.  22.325  [Removed]

0
25. Section 22.325 is removed.


Sec.  22.405  [Amended]

0
26. Section 22.405 is amended in paragraph (b) by removing ``32 CFR 
32.14, 33.12, or 34.4'' and adding ``32 CFR 34.4 for awards to for-
profit organizations or as described in OMB guidance at 2 CFR 200.207 
for awards to institutions of higher education, nonprofit 
organizations, States, local governments, and Indian tribes'' in its 
place.

0
27. Section 22.420 is amended by revising paragraphs (b)(1), (c)(1) 
introductory text, and (c)(1)(ii) to read as follows:


Sec.  22.420  Pre-award procedures.

* * * * *
    (b) * * *
    (1) Should the grants officer in a particular case decide that a 
pre-award credit report, audit, or survey is needed, he or she should 
consult first with the appropriate grants administration office 
(identified in Sec.  22.710), and decide whether pre-existing surveys 
or audits of the recipient, such as those of the recipient's internal 
control systems under OMB guidance in subpart F of 2 CFR part 200, will 
satisfy the need (see Sec.  22.715(a)(1)).
* * * * *
    (c) * * *
    (1) Is not identified in the Exclusions area of the System for 
Award Management (SAM Exclusions) as being debarred, suspended, or 
otherwise ineligible to receive the award (SAM is at www.sam.gov). In 
addition to being a requirement for every new award, note that checking 
SAM Exclusions also is a requirement for subsequent obligations of 
additional funds, such as incremental funding actions, in the case of 
pre-existing awards to institutions of higher education, as described 
at Sec.  22.520(e)(5). The grants officer's responsibilities include 
(see the OMB guidance at 2 CFR 180.425 and 180.430, as implemented by 
the Department of Defense at 2 CFR 1125.425) checking SAM Exclusions 
for:
* * * * *
    (ii) A recipient's principals (as defined in OMB guidance at 2 CFR 
180.995, implemented by the Department of Defense in 2 CFR part 1125), 
potential recipients of subawards, and principals of those potential 
subaward recipients, if DoD Component approval of those principals or 
lower-tier recipients is required under the terms of the award.
* * * * *

0
28. Section 22.505 is revised to read as follows:


Sec.  22.505  Purpose.

    The purpose of this subpart is to supplement other regulations that 
implement national policy requirements, to the extent that it is 
necessary to provide additional guidance to DoD grants officers.

0
29. Section 22.510 is amended by revising paragraph (b) to read as 
follows:


Sec.  22.510  Certifications, representations, and assurances.

* * * * *

[[Page 51243]]

    (b) Representations and assurances. Many national policies, either 
in statute or in regulation, require recipients of grants and 
cooperative agreements to make representations or provide assurances 
(rather than certifications) that they are in compliance with the 
policies. Part 1122 of the DoDGARs (2 CFR part 1122) provides standard 
wording of general award terms and conditions to address several of the 
more commonly applicable national policy requirements. These terms and 
conditions may be used to obtain required assurances and 
representations for national policy matters covered in part 1122 at the 
time of award, which is as effective and more efficient and less 
administratively burdensome than obtaining them at the time of each 
proposal. If any other assurances or representations must be obtained 
at the time of proposal, grants officers should use the most efficient 
method for doing so--e.g., for a program that has a program 
announcement and applications using the standard application form (SF-
424 \5\), the program announcement should include the texts of the 
required assurances and representations and clearly state that the 
applicant's electronic signature of the SF-424 will serve to affirm its 
agreement with each representation or assurance.

    \5\ 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
30. Section 22.520 is amended by:
0
a. In paragraph (d)(2):
0
i. Removing ``Director of Defense Research and Engineering'' and adding 
``Assistant Secretary of Defense for Research and Engineering'' in its 
place.
0
ii. Removing ``Director for Basic Sciences, ODUSD(LABS)'' and adding 
``Director for Basic Research, OASD(R&E)'' in its place.
0
b. Revising paragraph (e)(1).
0
c. In paragraph (e)(5) introductory text, removing ``on the EPLS'' and 
adding ``in SAM Exclusions'' in its place.
0
d. In paragraph (e)(5)(i):
0
i. Removing ``check the EPLS'' and adding ``check SAM Exclusions'' in 
its place.
0
ii. Removing ``an institution's EPLS listing'' and adding ``an 
institution's SAM Exclusions listing'' in its place.
0
e. In paragraph (e)(5)(iii)(A), removing ``removed from the EPLS'' and 
adding ``removed from SAM Exclusions'' in its place.
    The revision reads as follows:


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

* * * * *
    (e) * * * (1) A grants officer shall not award any grant or 
cooperative agreement to an institution of higher education that has 
been identified pursuant to the procedures of 32 CFR part 216. Such 
institutions are identified as being ineligible in the Exclusions area 
of the System for Award Management (SAM Exclusions). The exclusion 
types in SAM Exclusions broadly indicate the nature of an institution's 
ineligibility, as well as the effect of the exclusion, and the 
Additional Comments field may have further details about the exclusion. 
Note that OMB guidance in 2 CFR 180.425 and 180.430, as implemented by 
the Department of Defense at 2 CFR part 1125, require a grants officer 
to check the SAM Exclusions prior to determining that a recipient is 
qualified to receive an award.
* * * * *

0
31. Section 22.605 is amended by:
0
a. Revising the introductory text and paragraphs (a) and (b).
0
b. In paragraph (c)(2), redesignating footnote number 9 as footnote 
number 6 and revising newly redesignated footnote 6.
    The revisions read as follows:


Sec.  22.605  Grants officers' responsibilities.

    At the time of award, the grants officer is responsible for 
ensuring that:
    (a) The award:
    (1) Conforms to the award format specified in 2 CFR part 1120.
    (2) Includes appropriate general terms and conditions and any 
program-specific and award-specific terms and conditions needed to 
specify applicable administrative, national policy, and programmatic 
requirements. These requirements include:
    (i) Federal statutes or Executive orders that apply broadly to 
Federal or DoD grants and cooperative agreements; and
    (ii) Any requirements specific to the program, as prescribed in the 
program statute (see Sec.  22.210(a)(2)), or specific to the funding, 
as stated in pertinent Congressional appropriations (see Sec.  22.515).
    (b) Information about the award is reported to the Defense 
Assistance Award Data System (DAADS), in accordance with Subpart E of 
32 CFR part 21.
    (c) * * *
    (2) * * *

    \6\ See footnote 5 to Sec.  22.510(b).


Sec.  22.610  [Removed]

0
32. Section 22.610 is removed.


Sec.  22.700  [Amended]

0
33. Section 22.700 is amended by removing ``32 CFR parts 32, 33, and 
34'' and adding ``32 CFR part 34 and subchapter D of 2 CFR chapter XI'' 
in its place.

0
34. Section 22.710 is amended by:
0
a. In the introductory text, redesignating footnote number 10 as 
footnote number 7 and revising newly redesignated footnote 7;
0
b. In paragraph (a)(1):
0
i. Removing ``the university cost principles in OMB Circular A-21'' and 
adding ``the cost principles in subpart E of 2 CFR part 200'' in its 
place;
0
ii. Removing footnote 11;
0
c. In paragraph (a)(2):
0
i. Removing ``OMB Circular A-122'' and adding ``subpart E of 2 CFR part 
200'' in its place;
0
ii. Removing footnote 12;
0
d. In paragraph (b) introductory text, removing ``Defense Contract 
Management Command'' and adding ``Defense Contract Management Agency'' 
in its place;
0
e. In paragraph (b)(2), removing ``Attachment C of OMB Circular A-122'' 
and adding ``appendix VIII to 2 CFR part 200'' in its place; and
0
f. In paragraph (b)(3), removing ``OMB Circular A-122'' and adding 
``subpart E of 2 CFR part 200'' in its place.
    The revision reads as follows:


Sec.  22.710  Assignment of grants administration offices.

* * * * *

    \7\ The ``Federal Directory of Contract Administration Services 
(CAS) Components'' may be accessed through the Defense Contract 
Management Agency homepage at http://www.dcma.mil.
* * * * *

0
35. Section 22.715 is amended by:
0
a. In paragraph (a)(1) and paragraph (a)(3) introductory text, removing 
``OMB Circular A-133'' and adding ``subpart F of 2 CFR part 200'' in 
its place.
0
b. In paragraph (a)(3)(iii):
0
i. Removing ``OMB Circular A-133, as implemented at 32 CFR 32.26 and 
33.26'' and adding ``subpart F of 2 CFR part 200, as implemented at 
subpart E of 2 CFR part 1128'' in its place.
0
ii. Removing ``400 Army-Navy Drive, Arlington, VA 22202'' and adding 
``4800 Mark Center Drive, Alexandria, VA 22350-1500'' in its place.
0
c. In paragraph (a)(4):
0
i. Removing ``DoD Directive 7640.2'' and adding ``DoD Instruction 
7640.02'' in its place.

[[Page 51244]]

0
ii. Removing ``DoD Directive 7600.10'' and adding ``DoD Instruction 
7600.10'' in its place.
0
iii. Redesignating footnote numbers 13 and 14 as footnote numbers 8 and 
9, respectively, and revising newly redesignated footnote 9.


Sec.  22.715  Grants administration office functions.

* * * * *
    (a) * * *
    (4) * * *

    \9\ See footnote 8 to this section.
* * * * *

0
36. Section 22.805 is amended by revising the introductory text and 
paragraph (a) to read as follows:


Sec.  22.805  Post-award requirements in other parts.

    Grants officers responsible for post-award administration of grants 
and cooperative agreements shall administer such awards in accordance 
with the following parts of the DoDGARs, as supplemented by this 
subpart:
    (a) Awards to domestic recipients. Standard administrative 
requirements for grants and cooperative agreements with domestic 
recipients are specified in other parts of the DoDGARs, as follows:
    (1) For awards to domestic institutions of higher education, 
nonprofit organizations, States, local governments, and Indian tribes, 
requirements are specified in subchapter D of 2 CFR chapter XI.
    (2) For awards to domestic for-profit organizations, requirements 
are specified in 32 CFR part 34.
* * * * *

0
37. Section 22.810 is amended by:
0
a. Revising paragraphs (b)(1) and (2).
0
b. Removing and reserving paragraph (c)(1).
0
c. In paragraph (c)(3)(i), redesignating footnote number 15 as footnote 
number 10 and revising newly redesignated footnote 10.
0
d. In paragraph (c)(3)(iii), removing ``ensure that the recipients' 
Taxpayer Identification Number (TIN)'' and adding ``ensure that, for 
recipients not required to register in the System for Award Management, 
the recipients' Taxpayer Identification Number (TIN)'' in its place.
    The revisions read as follows:


Sec.  22.810  Payments.

* * * * *
    (b) * * * (1) It is Governmentwide policy to minimize the time 
elapsing between any payment of funds to a recipient and the 
recipient's disbursement of the funds for program purposes.
    (2) It also is a Governmentwide requirement to use electronic funds 
transfer (EFT) in the payment of any grant unless the recipient has 
obtained a waiver in accordance with Department of the Treasury 
regulations at 31 CFR part 208. As a matter of DoD policy, this 
requirement applies to cooperative agreements, as well as grants. 
Within the Department of Defense, the Defense Finance and Accounting 
Service implements this EFT requirement, and grants officers have 
collateral responsibilities at the time of award, as described in Sec.  
22.605(c), and in post-award administration, as described in paragraph 
(c)(3)(iv) of this section.
* * * * *
    (c) * * *
    (3) * * *
    (i) * * *

    \10\ See footnote 8 to Sec.  22.715(a)(4).
* * * * *

0
38. Section 22.825 is amended by:
0
a. Revising paragraph (a).
0
b. In paragraph (b)(2)(ii), removing ``OMB Circular A-133, where that 
Circular is applicable'' and adding ``OMB guidance in subpart F of 2 
CFR part 200, where that guidance is applicable'' in its place.
    The revision reads as follows:


Sec.  22.825  Closeout audits.

    (a) Purpose. This section establishes DoD policy for obtaining 
audits at closeout of individual grants and cooperative agreements.
* * * * *

Appendix B to Part 22--[Removed]

0
39. Appendix B to part 22 is removed.

Appendix C to Part 22--[Removed]

0
40. Appendix C to part 22 is removed.

PART 32--[REMOVED]

0
41. Under the authority of 5 U.S.C. 301 and 10 U.S.C. 113, part 32 is 
removed.

PART 33--[REMOVED]

0
42. Under the authority of 5 U.S.C. 301 and 10 U.S.C. 113, part 33 is 
removed.

PART 34--ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS WITH 
FOR-PROFIT ORGANIZATIONS

0
43. The authority citation for part 34 continues to read as follows:

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


Sec.  34.1  [Amended]

0
44. Section 34.1 is amended in paragraph (b)(2)(ii) by removing 
``(e.g., 32 CFR part 33 specifies requirements for subrecipients that 
are States or local governments, and 32 CFR part 32 contains 
requirements for universities or other nonprofit organizations)''.

0
45. Section 34.2 is amended by revising the definition of ``Small 
award'' to read as follows:


Sec.  34.2  Definitions.

* * * * *
    Small award. See the definition for this term in 2 CFR part 1108.
* * * * *


Sec.  34.3  [Amended]

0
46. Section 34.3 is amended in paragraph (c) by removing ``Director, 
Defense Research and Engineering'' and adding ``Assistant Secretary of 
Defense for Research and Engineering'' in its place.

0
47. Section 34.12 is amended in paragraph (d) by revising footnote 1 to 
read as follows:


Sec.  34.12   Payment.

* * * * *
    (d) * * *

    \1\ 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 is available through the ``CAS Directory'' link at the Defense 
Contract Management Agency homepage (http://www.dcma.mil).
* * * * *


Sec.  34.15  [Amended]

0
48. Section 34.15 is amended in paragraph (c)(3)(i) by removing 
``$100,000'' and adding ``the simplified acquisition threshold'' in its 
place.


Sec.  34.16  [Amended]

0
49. Section 34.16 is amended by:
0
a. In paragraph (a), removing ``$500,000'' and adding ``$750,000'' in 
its place; and
0
b. In paragraph (d)(2)(ii):
0
i. In the second sentence, removing ``Defense Contract Management 
Command (DCMC)'' and adding ``Defense Contract Management Agency 
(DCMA)'' in its place; and
0
ii. In the third sentence, removing ``DCMC'' and adding ``DCMA'' in its 
place.

0
50. Section 34.17 is amended by revising paragraph (b) to read as 
follows:


Sec.  34.17  Allowable costs.

* * * * *

[[Page 51245]]

    (b) Other types of organizations. Allowability of costs incurred by 
other types of organizations that may be subrecipients under a prime 
award to a for-profit organization is determined as follows:
    (1) Institutions of higher education, nonprofit organizations, 
States, local governments, and Indian tribes. Allowability is 
determined in accordance with the cost principles in subpart E of OMB 
guidance in 2 CFR part 200. Note that 2 CFR 200.401(c) provides that a 
nonprofit organization listed in appendix VIII to 2 CFR part 200 is 
subject to the FAR and DFARS cost principles specified in paragraph 
(a)(1) of this section for for-profit organizations.
    (2) Hospitals. Allowability is determined in accordance with the 
cost principles identified in appendix IX to 2 CFR part 200 (currently 
45 CFR part 75).


Sec.  34.41  [Amended]

0
51. In Sec.  34.41 amend the introductory text by removing ``32 CFR 
32.51 and 32.52'' and adding ``subparts A and B of 2 CFR part 1134'' in 
its place.

0
52. Appendix A to part 34 is amended by:
0
a. In paragraph 2, removing ``40 U.S.C. 276c'' and adding ``40 U.S.C. 
3145'' in its place.
0
b. In paragraph 3, removing ``40 U.S.C. 327-333'' in both places it 
appears and adding ``40 U.S.C., chapter 37'' in their places.
0
c. In paragraph 5, removing ``$100,000'' and adding ``$150,000'' in its 
place.
0
d. Revising paragraph 7.
0
e. Adding paragraphs 8 through 10.
    The revision and additions 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 2 CFR 1125.220, which implements OMB 
guidance at 2 CFR 180.220) shall not be made to parties identified in 
the Exclusions area of the System for Award Management (SAM Exclusions) 
as being currently debarred, suspended, or otherwise excluded. This 
restriction is in accordance with the DoD adoption at 2 CFR part 1125 
of the OMB guidance implementing E.O.s 12549 (3 CFR, 1986 Comp., p. 
189) and 12689 (3 CFR, 1989 Comp., p. 235), ``Debarment and 
Suspension.''
    8. Wage Rate Requirements (Construction), formerly the Davis Bacon 
Act. When required by Federal program legislation, you must take the 
following actions with respect to each construction contract for more 
than $2,000 to be awarded using funding provided under this award:
    a. Place in the solicitation under which the contract will be 
awarded a copy of the current prevailing wage determination issued by 
the Department of Labor;
    b. Condition the decision to award the contract upon the 
contractor's acceptance of that prevailing wage determination;
    c. Include in the contract the clauses specified at 29 CFR 5.5(a) 
in Department of Labor regulations (29 CFR part 5, ``Labor Standards 
Provisions Applicable to Contracts Governing Federally Financed and 
Assisted Construction'') to require the contractor's compliance with 
the Wage Rate Requirements (Construction), as amended (40 U.S.C. 3141-
44, 3146, and 3147); and
    d. Report all suspected or reported violations to the award 
administration office identified in this award.
    9. Fly America requirements. In each contract under which funds 
provided under this award might be used to participate in costs of 
international air travel or transportation for people or property, you 
must include a clause to require the contractor to:
    a. Comply with the International Air Transportation Fair 
Competitive Practices Act of 1974 (49 U.S.C. 40118, also known as the 
``Fly America'' Act), as implemented by the General Services 
Administration at 41 CFR 301-10.131 through 301-10.143, which provides 
that U.S Government financed international air travel 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; and
    b. Include the requirements of the Fly America Act in all 
subcontracts that might involve international air transportation.
    10. Cargo preference for United States flag vessels. In each 
contract under which equipment, material, or commodities may be shipped 
by oceangoing vessels, you must include the clause specified in 
Department of Transportation regulations at 46 CFR 381.7(b) to require 
that at least 50 percent of equipment, materials or commodities 
purchased or otherwise obtained with Federal funds under this award, 
and transported by ocean vessel, be transported on privately owned U.S. 
flag commercial vessels, if available.

PART 37--TECHNOLOGY INVESTMENT AGREEMENTS

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

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


0
54. Section 37.130 is amended by revising paragraph (c) to read as 
follows:


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

* * * * *
    (c) Portions of other DoDGARs parts apply to TIAs only as cited by 
reference in this part.


Sec.  37.225  [Amended]

0
55. In Sec.  37.225 amend the introductory text by removing ``In 
accordance with Sec.  37.1030, you will report your answers to these 
questions to help the DoD measure the Department-wide benefits of using 
TIAs and meet requirements to report to the Congress.'' and adding ``In 
accordance with Sec.  37.1020, you must document your answers to these 
questions in the award file.'' in its place.

0
56. Section 37.620 is revised to read as follows:


Sec.  37.620  What financial management standards do I include for 
participants that are nonprofit?

    So as not to force system changes for any State, local government, 
institution of higher education, or other nonprofit organization, your 
expenditure-based TIA's requirements for the financial management 
system of any nonprofit participant are the same as those that apply to 
the participant's other Federal assistance awards.

0
57. Section 37.635 is revised to read as follows:


Sec.  37.635  What cost principles do I require a nonprofit participant 
to use?

    So as not to force financial system changes for any nonprofit 
participant, your expenditure-based TIA will provide that costs to be 
charged to the research project by any nonprofit participant must be 
determined to be allowable in accordance with:
    (a) Subpart E of OMB guidance in 2 CFR part 200, if the participant 
is a State, local government, Indian tribe, institution of higher 
education, or nonprofit organization. In conformance with 2 CFR 
200.401(c) of that OMB guidance, a nonprofit organization listed in 
appendix VIII to 2 CFR part 200 is subject to the cost principles in 
the Federal Acquisition Regulation (48 CFR subpart 31.2) and Defense 
Federal Acquisition Regulation Supplement (48 CFR subpart 231.2).

[[Page 51246]]

    (b) The cost principles identified in appendix IX to the OMB 
guidance in 2 CFR part 200 (see 45 CFR part 75), if the participant is 
a hospital.


Sec.  37.645  [Amended]

0
58. Section 37.645 is amended in paragraph (b)(1) by removing 
``$500,000'' and adding ``$750,000'' in its place.


Sec.  37.650  [Amended]

0
59. Section 37.650 is amended in paragraph (c) by removing ``400 Army-
Navy Drive, Arlington, VA 22202'' and adding ``4800 Mark Center Drive, 
Alexandria, VA 22350-1500'' in its place.


Sec.  37.660  [Amended]

0
60. Section 37.660 is amended by redesignating footnote number 4 as 
footnote number 2.

0
61. Section 37.665 is revised to read as follows:


Sec.  37.665  Must I require nonprofit participants to have periodic 
audits?

    Yes, expenditure-based TIAs are assistance instruments subject to 
the Single Audit Act (31 U.S.C. 7501-7507), so nonprofit participants 
are subject to their usual requirements under that Act, as implemented 
by subpart F of 2 CFR part 200. Specifically, the requirements are the 
same as those in subpart E of 2 CFR part 1128 for grants and 
cooperative agreements to institutions of higher education, nonprofit 
organizations, States, local governments, and Indian tribes. Note that 
those requirements also apply to Federally Funded Research and 
Development Centers (FFRDCs) and other Government-owned, Contractor-
Operated (GOCO) facilities administered by nonprofit organizations, 
because nonprofit FFRDCs and GOCOs are subject to the Single Audit Act.


Sec.  37.675  [Removed]

0
62. Section 37.675 is removed.


Sec.  37.680  [Removed]

0
63. Section 37.680 is removed.

0
64. Section 37.690 is revised to read as follows:


Sec.  37.690  How are nonprofit participants to manage real property 
and equipment?

    For nonprofit participants, your TIA's requirements for vesting of 
title, use, management, and disposition of real property or equipment 
acquired under the award are the same as those that apply to the 
participant's other Federal assistance awards.

0
65. Section 37.695 is amended by:
0
a. Revising paragraph (b); and
0
b. Removing paragraph (c).
    The revision reads as follows:


Sec.  37.695  What are the requirements for Federally owned property?

* * * * *
    (b) The requirements that apply to the participant's other Federal 
awards, if it is an entity other than a for-profit firm. If the other 
Federal awards of a participant that is a GOCO or FFRDC administered by 
a nonprofit organization are procurement contracts, it is appropriate 
for you to specify the same property standards that apply to those 
Federal procurement contracts.

0
66. Section 37.710 is amended by revising paragraph (a) to read as 
follows:


Sec.  37.710  What standards do I include for purchasing systems of 
nonprofit organizations?

    (a) So as not to force system changes for any nonprofit 
participant, your expenditure-based TIA will provide that each 
nonprofit participant's purchasing system comply with standards that 
conform as much as practicable with requirements that apply to the 
participant's other Federal awards.
* * * * *


Sec.  37.875  [Amended]

0
67. Section 37.875 is amended by redesignating footnote number 6 as 
footnote number 3.

0
68. Section 37.880 is revised to read as follows:


Sec.  37.880   What requirements must I include for periodic reports on 
program and business status?

    Your TIA must include requirements that, as a minimum, include 
periodic reports addressing program and, if it is an expenditure-based 
award, business status. You must require submission of the reports at 
least annually, and you may require submission as frequently as 
quarterly (this does not preclude a recipient from electing to submit 
more frequently than quarterly the financial information that is 
required to process payment requests if the award is an expenditure-
based TIA that uses reimbursement or advance payments under Sec.  
37.810(a)). The requirements for the content of the reports are as 
follows:
    (a) The program portions of the reports must address progress 
toward achieving program performance goals, including current issues, 
problems, or developments.
    (b) The business portions of the reports, applicable only to 
expenditure-based awards, must provide summarized details on the status 
of resources (federal funds and non-federal cost sharing), including an 
accounting of expenditures for the period covered by the report. The 
report should compare the resource status with any payment and 
expenditure schedules or plans provided in the original award; explain 
any major deviations from those schedules; and discuss actions that 
will be taken to address the deviations. You may require a recipient to 
separately identify in these reports the expenditures for each 
participant in a consortium and for each programmatic milestone or 
task, if you, after consulting with the program official, judge that 
those additional details are needed for good stewardship.

0
69. Section 37.890 is amended by redesignating footnote number 7 as 
footnote number 4 and revising newly redesignated footnote 4 to read as 
follows:


Sec.  37.890   Must I require a final performance report?

* * * * *
    \4\ See footnote 3 to Sec.  37.875(b)(1).


Sec.  37.895  [Amended]

0
70. Section 37.895 is amended by redesignating footnote number 8 as 
footnote number 5.

0
71. Section 37.920 is revised to read as follows:


Sec.  37.920  What requirement for access to a nonprofit participant's 
records do I include in a TIA?

    Your TIA must include for any nonprofit participant, including any 
FFRDC or GOCO administered by a nonprofit organization, the standard 
access-to-records requirement that subpart B of 2 CFR part 1136 
specifies in Section F of OAR Article II (the standard wording for 
Section F of OAR Article II is provided in appendix B to 2 CFR part 
1136).


Sec.  37.1000  [Amended]

0
72. In Sec.  37.1000 amend paragraph (c) by removing ``Sec. Sec.  
37.1025 through 37.1035'' and adding ``Sec.  37.1025'' in its place.


Sec.  37.1010  [Amended]

0
73. In Sec.  37.1010 amend paragraph (l) by removing ``and Sec.  
37.680.''


Sec.  37.1030  [Removed]

0
74. Section 37.1030 is removed.


Sec.  37.1035  [Removed]

0
75. Section 37.1035 is removed.


Sec.  37.1040  [Removed]

0
76. Section 37.1040 is removed.


Sec.  37.1100  [Amended]

0
77. Section 37.1100 is amended by removing paragraph (g).

[[Page 51247]]


0
78. Appendix D to part 37 is amended by revising Sections B and C to 
read as follows:

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

* * * * *

B. Assurances That Apply to All TIAs

    DoD policy is to use a certification, as described in the 
preceding paragraph, only for a national policy requirement that 
specifically requires one. The usual approach to communicating other 
national policy requirements to recipients is to incorporate them as 
award terms or conditions, or assurances. Part 1122 of 2 CFR lists 
national policy requirements that commonly apply to DoD grants and 
cooperative agreements. It also has standard wording of general 
terms and conditions to incorporate the requirements in award 
documents. Of those requirements, the following six apply to all 
TIAs. (Note that TIAs must generally use the standard wording in 2 
CFR part 1122 for the terms and conditions of these six 
requirements, but not the standard format.)
    1. Requirements concerning debarment and suspension in the OMB 
guidance in 2 CFR part 180, as implemented by the DoD at 2 CFR part 
1125. The requirements apply to all nonprocurement transactions.
    2. Requirements concerning drug-free workplace in the 
Governmentwide common rule that the DoD has codified at 32 CFR part 
26. The requirements apply to all financial assistance.
    3. Prohibitions on discrimination on the basis of race, color, 
or national origin in Title VI of the Civil Rights Act of 1964 (42 
U.S.C. 2000d, et seq.), as implemented by DoD regulations at 32 CFR 
part 195. 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 
suppliers from whom recipients purchase goods or services).
    4. Prohibitions on discrimination on the basis of age, in the 
Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.). They apply 
to all financial assistance and require flow down to subrecipients, 
as implemented by Department of Health and Human Services 
regulations at 45 CFR part 90.
    5. Prohibitions on discrimination on the basis of handicap, in 
section 504 of 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. They apply to all financial 
assistance recipients and require flow down to subrecipients.
    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), commonly referred to as the ``Fly America 
Act,'' and implementing regulations at 41 CFR 301-10.131 through 
301-10.143, which apply to uses of U.S. Government funds.

C. Other National Policy Requirements

    Additional national policy requirements 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, as amended, on discrimination on the basis of race, color, 
religion, sex, sexual orientation, gender identity, or national 
origin. You must include the clause provided in 41 CFR 60-1.4(b) in 
any ``federally assisted construction contract'' (as defined in 41 
CFR 60-1.3) under this award unless provisions of 41 CFR part 60-1 
exempt the contract from the requirement. The clause will require 
the contractor to comply with equal opportunity requirements in 41 
CFR chapter 60.
    2. If the research involves human subjects or animals, it is 
subject to the applicable requirements identified in appendix C of 2 
CFR part 1122.
    3. If the research involves actions that may affect the human 
environment, it is subject to the requirements of the National 
Environmental Policy Act in paragraph A.4.a of NP Article II, which 
is found in appendix B of 2 CFR part 1122. It also may be subject to 
one or more of the other requirements in paragraphs A.4.b through 
A.4.f, A.5, and A.6 of NP Article II, which concern flood-prone 
areas, coastal zones, coastal barriers, wild and scenic rivers, 
underground sources of drinking water, endangered species, and 
marine mammal protection.
    4. If the project may impact any property listed or eligible for 
listing on the National Register of Historic Places, it is subject 
to the National Historic Preservation Act of 1966 (54 U.S.C. 306108) 
as specified in paragraph 11.a of NP Article IV, which is found in 
appendix D of 2 CFR part 1122.
    5. If the project has potential under this award for irreparable 
loss or destruction of significant scientific, prehistorical, 
historical, or archeological data, it is subject to the 
Archaeological and Historic Preservation Act of 1974 (54 U.S.C. 
Chapter 3125) as specified in paragraph 11.b of NP Article IV, which 
is found in appendix D of 2 CFR part 1122.

0
79. 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 ten national policy 
requirements that commonly apply to firms' purchases under grants or 
cooperative agreements. Of those ten, 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 2 CFR 1125.220, which implements OMB guidance at 2 CFR 
180.220) shall not be made to parties identified in the Exclusions 
area of the System for Award Management (SAM Exclusions) as being 
currently debarred, suspended, or otherwise excluded. This 
restriction is in accordance with the DoD adoption at 2 CFR part 
1125 of the OMB guidance implementing E.O.s 12549 (3 CFR, 1986 
Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235), ``Debarment 
and Suspension.''
    C. The following requirements apply to recipient's purchases 
under TIAs in the situations specified below:
    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 recipients' and subrecipients' construction 
contracts under their awards and subawards, respectively. Further 
details are provided in appendix B to part 22 of the DoDGARs (32 CFR 
part 22), in section b. under the heading ``Nondiscrimination.'' any 
``federally assisted construction contract'' (as defined in 41 CFR 
60-1.3) under the award unless provisions of 41 CFR part 60-1 exempt 
the contract from the requirement. The clause will require the 
contractor to comply with equal opportunity requirements in 41 CFR 
chapter 60.
    2. Wage Rate Requirements (Construction), formerly the Davis 
Bacon Act. When required by Federal program legislation, you must 
take the following actions with respect to each construction 
contract for more than $2,000 to be awarded using funding provided 
under this award:
    a. Place in the solicitation under which the contract will be 
awarded a copy of the current prevailing wage determination issued 
by the Department of Labor;
    b. Condition the decision to award the contract upon the 
contractor's acceptance of that prevailing wage determination;
    c. Include in the contract the clauses specified at 29 CFR 
5.5(a) in Department of Labor regulations (29 CFR part 5, ``Labor 
Standards Provisions Applicable to Contracts Governing Federally 
Financed and Assisted Construction'') to require the contractor's 
compliance with the Wage Rate Requirements (Construction), as 
amended (40 U.S.C. 3141-44, 3146, and 3147); and
    d. Report all suspected or reported violations to the award 
administration office identified in this award.
    3. Fly America requirements. In each contract under which funds 
provided under this award might be used to participate in costs of 
international air travel or

[[Page 51248]]

transportation for people or property, you must include a clause to 
require the contractor to:
    a. Comply with the International Air Transportation Fair 
Competitive Practices Act of 1974 (49 U.S.C. 40118, also known as 
the ``Fly America'' Act), as implemented by the General Services 
Administration at 41 CFR 301-10.131 through 301-10.143, which 
provides that U.S Government financed international air travel 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; and
    b. Include the requirements of the Fly America Act in all 
subcontracts that might involve international air transportation.
    4. Cargo preference for United States flag vessels. In each 
contract under which equipment, material, or commodities may be 
shipped by oceangoing vessels, you must include the clause specified 
in Department of Transportation regulations at 46 CFR 381.7(b) to 
require that at least 50 percent of equipment, materials or 
commodities purchased or otherwise obtained with Federal funds under 
this award, and transported by ocean vessel, be transported on 
privately owned U.S. flag commercial vessels, if available.

    Dated: July 24, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-16411 Filed 8-18-20; 8:45 am]
BILLING CODE 5001-06-P