Requirements for Federal Funding Accountability and Transparency Act Implementation, 32417-32421 [E8-12558]
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Federal Register / Vol. 73, No. 110 / Friday, June 6, 2008 / Proposed Rules
OFFICE OF MANAGEMENT AND
BUDGET
2 CFR Part 33
Requirements for Federal Funding
Accountability and Transparency Act
Implementation
Office of Federal Financial
Management, Office of Management and
Budget (OMB).
ACTION: Proposed guidance to agencies.
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AGENCY:
SUMMARY: OMB proposes to issue
guidance to agencies to establish
requirements for federal financial
assistance applicants, recipients, and
subrecipients that are necessary for the
implementation of the Federal Funding
Accountability and Transparency Act of
2006 (Pub. L. 109–282, hereafter
referred to as ‘‘the Transparency Act’’ or
‘‘the Act’’). An agency under the
proposed guidance would require
applicants other than individuals, with
some specific exceptions, to have Dun
and Bradstreet Data Universal
Numbering System (DUNS) numbers
and maintain current registrations in the
Central Contractor Registration (CCR)
database. The guidance also provides
standard wording for an award term that
each agency would include in its
financial assistance awards. The award
term would require recipients and
subrecipients that are subject to the
policy to have DUNS numbers, maintain
current CCR registrations, and report
subaward data that the implementation
of the Transparency Act requires. This
proposed implementation of the
requirement for reporting of subawards
under federal financial assistance
awards parallels the Federal Acquisition
Regulation implementation of that
Transparency Act reporting requirement
for subcontracts under federal
procurement contracts (72 FR 51306,
September 6, 2007).
DATES: Comments are due on or before
August 5, 2008.
ADDRESSES: Due to potential delays in
OMB’s receipt and processing of mail
sent through the U.S. Postal Service, we
encourage respondents to submit
comments electronically to ensure
timely receipt. We cannot guarantee that
comments mailed will be received
before the comment closing date.
Electronic mail comments may be
submitted to: Marguerite Pridgen at
mpridgen@omb.eop.gov. Please include
‘‘Transparency Act Guidance’’ in the
subject line and the full body of your
comments in the text of the electronic
message and not as an attachment.
Please include your name, title,
organization, postal address, telephone
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number, and e-mail address in the text
of the message. Comments may also be
submitted via facsimile to 202–395–
3952.
Comments may be mailed to
Marguerite Pridgen, Office of Federal
Financial Management, Office of
Management and Budget, Room 6025,
New Executive Office Building,
Washington, DC 20503.
Comments may also be sent via https://
www.regulations.gov—a Federal
E-Government Web site that allows the
public to find, review, and submit
comments on documents that agencies
have published in the Federal Register
and that are open for comment. Simply
type ‘‘Transparency Act Guidance’’ (in
quotes) in the Comment or Submission
search box, click Go, and follow the
instructions for submitting comments.
Comments received by the date
specified above will be included as part
of the official record.
All responses will be summarized and
included in the request for OMB
approval.
FOR FURTHER INFORMATION CONTACT:
Marguerite Pridgen, Office of Federal
Financial Management, Office of
Management and Budget, telephone
(202) 395–7844 (direct) or (202) 395–
3993 (main office) and e-mail:
Marguerite_E._Pridgen@omb.eop.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Transparency Act
The Act requires the Office of
Management and Budget (OMB) to
ensure the existence and operation of a
single Web site at which the public may
access and search data on federal
financial assistance awards. It:
• Specifies that data on federal
agencies’ awards to non-federal entities
are to be available at the Web site by
January 1, 2008.
• Specifies that data on subawards
under those federal awards are to be
available by January 1, 2009.
• Exempts awards to individuals and
individual transactions of less than
$25,000.
The Act identifies sixteen specific
data elements that the Web site must
include for each federal award and
authorizes OMB to specify additional
elements for other relevant information.
The sixteen elements the Act specifies
are:
• The name of the entity receiving the
award;
• The amount of the award;
• The transaction type;
• The funding agency;
• The Catalog of Federal Domestic
Assistance number;
• The program source;
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• The location of the entity receiving
the award, including four data elements
for the city, State, Congressional district,
and country;
• The location of the primary place of
performance under the award, including
four data elements for the city, State,
Congressional district, and country;
• A unique identifier of the entity
receiving the award; and
• A unique identifier of the parent
entity of the recipient, should the
recipient be owned by another entity.
Although the Act does not identify
specific data elements for subaward
reporting, it does require that the data
about subawards be disclosed in the
same manner as the data for federal
agencies’ awards. It also requires OMB
to conduct a pilot to determine how best
to implement a reporting system under
which the entity issuing a subaward is
responsible for fulfilling the subaward
reporting requirement.
II. Purposes of the Guidance
The proposed guidance following this
preamble has three purposes, all of
which are related to the implementation
of the Transparency Act. Those
purposes, which are identified in
section 33.100 of the guidance, are to
establish:
• A requirement to use the Data
Universal Numbering System (DUNS)
number as the unique identifier for each
entity receiving an award or subaward;
• Requirements for applicant,
recipient and subrecipient registration
in the Central Contractor Registration
(CCR) as a way to maintain a reliable
source of standard information about
organizations for Transparency Act
reporting and other purposes; and
• Requirements for recipient and
subrecipient reporting of obligations of
federal funds for subawards.
The following paragraphs provide
further information about these three
requirements.
DUNS number. The interagency task
force that OMB established to help
implement the Transparency Act
selected the DUNS number as the
unique identifier that the Act requires to
be reported both for the recipient and,
if applicable, its parent entity. The
proposed guidance following this
preamble therefore includes a
Government-wide policy under which
agencies will require federal financial
assistance applicants and recipients,
with a few exceptions, to have DUNS
numbers. The proposed guidance
thereby would expand a current OMB
policy requiring use of DUNS numbers
in conjunction with grants and
cooperative agreements, by broadening
the policy to loans and other types of
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federal financial assistance awards. The
current policy, the full text of which is
in the Federal Register [68 FR 38402,
June 27, 2003], was established by the
July 15, 2003, OMB memorandum M–
03–16, ‘‘OMB Issues Grants
Management Policies’’ (available at
https://www.whitehouse.gov/omb/
memoranda/m03–16.pdf).
Central Contractor Registration. The
proposed guidance also would establish
a requirement for applicant, recipient,
and subrecipient registration in the
CCR, as a way to help ensure consistent
reporting of data about each entity and
thereby make the data more useful to
the public. Without the requirement,
multiple agencies doing business with
the same entity may use different
variations of the entity’s name, address,
or parent organization when they each
report on their awards to the entity.
Using the DUNS number as the
identifier for the entity, as described in
the preceding paragraph, can partially
alleviate that problem—each report of
an award or subaward then can be
linked to standard information about the
award recipient in data bases of Dun
and Bradstreet, Inc., which assigns and
maintains DUNS numbers and
associated organizational information.
The proposed guidance requiring
recipient and subrecipient registration
in the CCR would further improve data
quality by allowing a report of an award
or subaward to also be linked to
standard information that federal
business partners provide about
themselves to that Government
repository.
Subaward reporting. The
Transparency Act requires reporting of
information about subawards under
federal financial assistance awards. The
proposed guidance therefore includes a
basic policy requiring recipients and
subrecipients to report on subawards
they make. For two reasons, however, it
does not specify the data elements that
must be reported about each subaward.
One reason is that data elements are best
maintained separately from the Code of
Federal Regulations. The other reason is
that the data elements may be refined
due to lessons learned during the
subaward pilot that The Transparency
Act requires, so they need not be
formally established until after the pilot.
At a later date, separately from today’s
policy proposal, we will publish the
data elements for subaward reporting in
the Federal Register with an
opportunity for comment before
formally establishing them as the
required set.
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III. The Proposed Guidance
The proposed guidance in 2 CFR part
33 is organized into three subparts:
• Subpart A states the purposes of the
guidance, as described above in Section
II of this preamble. It also specifies the
types of federal financial assistance
awards and types of recipient and
subrecipient entities to which the
proposed guidance would apply.
• Subpart B contains five sections
that provide authorities and specify
responsibilities for agencies. Section
33.200 states requirements for the
content of agencies’ program
announcements, regulations, or other
issuances providing instructions for
applicants. Section 33.205 authorizes
agencies to disqualify applicants that do
not comply with requirements to
provide a DUNS er and register in the
CCR. Section 33.210 permits agencies to
add DUNS number fields to application
forms or formats that OMB cleared
previously and section 33.215
establishes requirements for agencies’
information systems. Finally, section
33.220 specifies standard wording of an
award term for federal financial
assistance subject to The Transparency
Act. The award term requires recipients
and subrecipients to register in the CCR
and report on subaward obligations that
are subject to the Transparency Act
reporting requirements.
• Subpart C contains definitions of
terms used in 2 CFR part 33.
IV. Invitation To Comment
We invite comments from the affected
public on all aspects of the proposed
guidance to agencies, including the
proposal to require use of the DUNS
number, registration in the CCR, and
reporting on subawards. All comments
will be considered in developing the
final guidance.
List of Subjects in 2 CFR Part 33
Business and industry, Colleges and
universities, Cooperative agreements,
Farmers, Federal aid programs, Grant
programs, Grants administration,
Hospitals, Indians, Insurance,
International organizations, Loan
programs, Nonprofit organizations,
Reporting and recordkeeping
requirements, State and local
governments, Subsidies.
Danny Werfel,
Deputy Controller.
Authority and Issuance
For the reasons set forth above, the
Office of Management and Budget
proposes to amend 2 CFR chapter I by
adding part 33 to read as follows:
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PART 33—UNIVERSAL IDENTIFIER,
CENTRAL CONTRACTOR
REGISTRATION, AND SUBAWARD
REPORTING
Sec.
Subpart A—General
33.100 Purposes of this part.
33.105 Applicability.
33.110 Deviations.
Subpart B—Policy
33.200 Requirements for program
announcements, regulations, and
application instructions.
33.205 Effect of noncompliance with
requirements in § 33.200.
33.210 Authority to modify agency
application forms or formats.
33.215 Requirements for agency
information systems.
33.220 Award term.
Subpart C—Definitions
33.300 Agency.
33.305 Award.
33.310 Central Contractor Registration
(CCR).
33.315 Data Universal Numbering System
(DUNS) Number.
33.320 Entity.
33.325 Federal financial assistance subject
to the Transparency Act.
33.330 For-profit organization.
33.335 Foreign public entity.
33.340 Indian tribe (or ‘‘federally
recognized Indian tribe’’).
33.345 Local government.
33.350 Nonprofit organization.
33.355 State.
33.360 Subaward.
33.365 Subrecipient.
Authority: Pub. L. 109–282; 31 U.S.C.
6102.
Subpart A–General
§ 33.100
Purposes of this part.
This part provides guidance to
agencies to establish:
(a) The Dun and Bradstreet (D&B)
Data Universal Numbering System
(DUNS) number as a universal identifier
for federal financial assistance
applicants, recipients, and
subrecipients.
(b) The Central Contractor
Registration (CCR) as the repository for
standard information about federal
financial assistance applicants,
recipients, and subrecipients.
(c) Requirements for recipients’ and
subrecipients’ reporting of information
on subawards, as required by the
Federal Funding Accountability and
Transparency Act of 2006 (Pub. L. 109–
282, hereafter referred to as ‘‘the
Transparency Act’’).
§ 33.105
Applicability.
(a) Types of awards. This part applies
to an agency’s grants, cooperative
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agreements, loans, and other federal
financial assistance subject to the
Transparency Act, as defined in
§ 33.325.
(b) Types of recipient and
subrecipient entities. (1) General.
Through an agency’s implementation of
the guidance in this part, this part
applies to all entities, other than those
excepted in paragraph (b)(2) of this
section, that—
(i) Apply for or receive agency
awards; or
(ii) Receive subawards under those
awards.
(2) Exceptions. (i) None of the
requirements in this part apply to an
individual who applies for or receives
federal financial assistance as a natural
person (i.e., unrelated to any business or
non-profit organization he or she may
own or operate in his or her name).
(ii) The requirement in this part to
maintain a current registration in the
CCR does not apply to:
(A) An agency of the Federal
Government that receives an award from
another agency.
(B) A foreign entity applying for or
receiving an award or subaward for a
project or program performed outside
the United States, if an agency deems it
to be impractical for the entity to
register in the CCR.
(C) An entity to which an agency
grants an exception based on a need to
protect information about the entity
from disclosure, to avoid compromising
classified information or national
security or jeopardizing the personal
safety of the entity’s clients.
(b) The program announcement,
regulation, or other issuance must
require each entity that applies and does
not have an exception under
§ 33.105(b)(2) to:
(1) Be registered in the CCR prior to
submitting an application or plan;
(2) Maintain a current CCR
registration at all times during which it
has an active federal award or an
application or plan under consideration
by an agency; and
(3) Provide its DUNS number in each
application or plan it submits to the
agency.
(c) For purposes of this policy:
(1) The applicant is the entity that
meets the agency’s or program’s
eligibility criteria and has the legal
authority to apply and to receive the
award. For example, if a consortium
applies for an award to be made to the
consortium as the recipient, the
consortium must have a DUNS number.
If a consortium is eligible to receive
funding under an agency program but
the agency’s policy is to make the award
to a lead entity for the consortium, the
DUNS number of the lead entity will be
used.
(2) A ‘‘program announcement’’ is any
paper or electronic issuance that an
agency uses to announce a funding
opportunity, whether it is called a
‘‘program announcement,’’ ‘‘notice of
funding availability,’’ ‘‘broad agency
announcement,’’ ‘‘research
announcement,’’ ‘‘solicitation,’’ or
something else.
§ 33.110
§ 33.205 Effect of noncompliance with
requirements in § 33.200.
Deviations.
Deviations from this part require the
prior approval of the Office of
Management and Budget (OMB).
Subpart B—Policy
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§ 33.200 Requirements for program
announcements, regulations, and
application instructions.
(a) Each agency that awards grants,
cooperative agreements, loans, or other
Federal financial assistance subject to
the Transparency Act must include the
requirements described in paragraph (b)
of this section in each program
announcement, regulation, or other
issuance containing instructions for
applicants:
(1) Under which awards may be made
that are subject to Transparency Act
reporting requirements; and
(2) That either:
(i) Is issued on or after the effective
date of this part; or
(ii) Has application or plan due dates
or anticipated award dates after October
1, 2008.
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(a) An agency may not make an award
to an entity until the entity has
complied with all applicable
requirements to provide a valid DUNS
number and register in the CCR.
(b) If an entity does not comply with
an applicable requirement to provide a
DUNS number or register in the CCR, as
specified in the program announcement
or other instructions, the agency:
(1) May determine that the applicant
is not qualified to receive an award; and
(2) May use that determination as a
basis for making an award to an
alternative applicant.
§ 33.210 Authority to modify agency
application forms or formats.
To implement the policies in
§§ 33.200 and 33.205, an agency may
add a DUNS number field to application
forms or formats previously approved
by OMB, without having to obtain
further approval to add the field.
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§ 33.215 Requirements for agency
information systems.
Each agency that awards or
administers grants, cooperative
agreements, loans, or other federal
financial assistance subject to the
Transparency Act must ensure that
systems processing information related
to the awards, and other systems as
appropriate, are able to accept and use
the DUNS number as the universal
identifier for financial assistance
applicants and recipients.
§ 33.220
Award term.
(a) To accomplish the purposes
described in § 33.100, an agency must
include the following award term in
each award to a non-federal entity of
federal financial assistance subject to
the Transparency Act:
I. Central Contractor Registration and
subaward reporting.
a. Central Contractor Registration.
1. Unless you are excepted from this
requirement under 2 CFR 33.105(b)(2),
you as the recipient must maintain the
currency of your information in the
Central Contractor Registration (CCR)
until you submit the final financial
report required under this award or
receive the final payment, whichever is
later.
2. If you are authorized to make
subawards under this award and it is
possible that you will make a subaward
to an entity (see definition in paragraph
d of this award term) with a total value
of $25,000 or more in federal funds over
the life of the subaward, you:
i. Must notify potential subrecipients
that no entity may receive funds for a
subaward with a total value in that
range unless the entity is registered in
the CCR, which also requires that the
subrecipient have a Data Universal
Numbering System (DUNS) number.
ii. May not make a subaward to an
entity with a total value in that range,
or obligate additional funds for the
subaward, unless the entity is registered
in the CCR.
b. Reporting of first-tier subawards.
1. Applicability. Unless you have a
current exception from this requirement
under paragraph (e) of the Federal
Funding Accountability and
Transparency Act of 2006 (Pub. L. 109–
282), you must report each action that
obligates $25,000 or more in federal
funds under any subaward to an entity
(see definitions in paragraph d of this
award term).
2. Where and when to report. You
must report each action described in
paragraph b.1 of this award term:
i. To the https://
WWW.USASpending.gov at
usaspendingdata@gsa.gov.
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ii. No later than 30 days after the date
of the obligation.
3. What to report. You must report the
information about each action that the
https://WWW.USASpending.gov
specifies.
c. Requirements for lower-tier
subawards and obligating actions.
1. Subawards. In any subaward that
you make to an entity under this award
that you expect to have a total value of
$25,000 or more in federal funds over
the life of the subaward, you must
include an award term that:
i. Provides the subrecipient with the
federal award number or other unique
federal identifying number for this
award.
ii. Requires the subrecipient to
maintain a current registration in the
CCR during the period of performance
under the subaward; and
iii. Requires the subrecipient, if it
makes any obligating action to which
paragraph b.1 of this award term
applies, to:
A. Report the action to either:
(1) The https://
WWW.USASpending.gov within 30 days
of the date of obligation, providing the
information about the action that the
system specifies; or
(2) You, if you prefer to have your
subrecipient report each obligating
action to you, in which case you must
report the action to the https://
WWW.USASpending.gov within 30 days
of the subrecipient’s obligation; and
B. Ensure that the lower-tier subaward
includes a term requiring the lower-tier
subrecipient to comply with the
requirements in paragraph c of this
award term.
2. Obligating actions. For each action
that you take to obligate funding under
a subaward described in paragraph c.1
of this award term, you must provide
the subrecipient with the amount of
federal funding that is included in the
amount of funding obligated by the
action.
d. Definitions. For purposes of this
award term:
1. Central Contractor Registration
(CCR) means the federal repository into
which an entity must provide
information required for the conduct of
business as an award recipient or
subrecipient. Additional information
about registration procedures may be
found at the CCR Internet site (currently
at https://www.ccr.gov).
2. Data Universal Numbering System
(DUNS) number means the nine-digit
number established and assigned by
Dun and Bradstreet, Inc. (D&B) to
uniquely identify business entities. A
DUNS number may be obtained from
D&B by telephone or the Internet
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(currently at https://
www.dunandbradstreet.com).
3. Entity means all of the following,
as defined at 2 CFR part 33, subpart C:
i. A Governmental organization,
which is a State, local government, or
Indian tribe;
ii. A foreign public entity;
iii. A domestic or foreign nonprofit
organization; and
iv. A domestic or foreign for-profit
organization.
4. Subaward:
i. This term means a legal instrument
to provide support for the performance
of any portion of the substantive project
or program for which you received this
award and that:
A. You as the recipient awards to an
eligible subrecipient; or
B. A subrecipient at one tier awards
to a subrecipient at the next lower tier.
ii. The term does not include your
procurement of property and services
needed to carry out the project or
program (for further explanation, see
§ l.210 of the attachment to OMB
Circular A–133, ‘‘Audits of States, Local
Governments, and Non-Profit
Organizations’’).
iii. A subaward may be provided
through any legal agreement, including
an agreement that you or a subrecipient
considers a contract.
5. Subrecipient means an entity that:
i. Receives a subaward from you or
from another subrecipient under this
award; and
ii. Is accountable to you or the other
subrecipient for the use of the federal
funds provided by the subaward.
(b) An agency may—
(1) Reserve paragraphs b and c of the
award term in paragraph (a) of this
section if there is no possibility of a
subaward with a total value of $25,000
or more in federal funds over the life of
the subaward; and
(2) Use different letters and numbers
to designate the paragraphs of the award
term, if necessary, to conform the
system of paragraph designations with
the one used in other terms and
conditions in the agency’s awards.
Subpart C—Definitions
§ 33.300
Agency.
Agency means a Federal agency as
defined at 5 U.S.C. 551(1) and further
clarified by 5 U.S.C. 552(f).
§ 33.305
Award.
Award means an award of Federal
financial assistance subject to the
Transparency Act, as defined in
§ 33.325.
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§ 33.310
(CCR).
Central Contractor Registration
Central Contractor Registration (CCR)
has the meaning given in paragraph d.1
of the award term in § 33.220.
§ 33.315 Data Universal Numbering
System (DUNS) Number.
Data Universal Numbering System
(DUNS) Number has the meaning given
in paragraph d.2 of the award term in
§ 33.220.
§ 33.320
Entity.
Entity has the meaning given in
paragraph d.3 of the award term in
§ 33.220.
§ 33.325 Federal financial assistance
subject to the Transparency Act.
Federal financial assistance subject to
the Transparency Act means assistance
that non-federal entities described in
§ 33.105(b) receive or administer in the
form of—
(a) Grants;
(b) Cooperative agreements;
(c) Loans;
(d) Loan guarantees;
(e) Subsidies;
(f) Insurance;
(g) Food commodities;
(h) Direct appropriations; and
(i) Other financial assistance
transactions that authorize the nonfederal entities’ expenditure of federal
funds.
§ 33.330
For-profit organization.
For-profit organization means a nonFederal party organized for profit. It
includes, but is not limited to:
(a) An ‘‘S corporation’’ incorporated
under Subchapter S of the Internal
Revenue Code;
(b) A corporation incorporated under
another authority;
(c) A partnership;
(d) A limited liability corporation or
partnership; and
(e) A sole proprietorship.
§ 33.335
Foreign public entity.
Foreign public entity means:
(a) A foreign government or foreign
governmental entity;
(b) A public international
organization, which is an organization
entitled to enjoy privileges, exemptions,
and immunities as an international
organization under the International
Organizations Immunities Act (22
U.S.C. 288–288f);
(c) An entity owned (in whole or in
part) or controlled by a foreign
government; and
(d) Any other entity consisting wholly
or partially of one or more foreign
governments or foreign governmental
entities.
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§ 33.340 Indian tribe (or ‘‘federally
recognized Indian tribe’’).
Indian tribe (or ‘‘federally recognized
Indian tribe’’) means any Indian tribe,
band, nation, or other organized group
or community, including any Alaskan
Native village or regional or village
corporation (as defined in, or
established under, the Alaskan Native
Claims Settlement Act (43 U.S.C. 1601,
et seq.)) that is recognized by the United
States as eligible for the special
programs and services provided by the
United States to Indians because of their
status as Indians.
§ 33.345
Local government.
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Local government means a:
(a) County;
(b) Borough;
(c) Municipality;
(d) City;
(e) Town;
(f) Township;
(g) Parish;
(h) Local public authority, including
any public housing agency under the
United States Housing Act of 1937;
(i) Special district;
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(j) School district;
(k) Intrastate district;
(l) Council of governments, whether
or not incorporated as a nonprofit
corporation under State law; and
(m) Any other instrumentality of a
local government.
§ 33.350
Nonprofit organization.
Nonprofit organization—
(a) Means any corporation, trust,
association, cooperative, or other
organization that—
(1) Is operated primarily for scientific,
educational, service, charitable, or
similar purposes in the public interest;
(2) Is not organized primarily for
profit; and
(3) Uses net proceeds to maintain,
improve, or expand the operations of
the organization.
(b) Includes nonprofit—
(1) Institutions of higher education;
(2) Hospitals; and
(3) Tribal organizations other than
those included in the definition of
‘‘Indian tribe.’’
PO 00000
Frm 00005
Fmt 4701
Sfmt 4702
§ 33.355
32421
State.
State means—
(a) Any State of the United States;
(b) The District of Columbia;
(c) Any agency or instrumentality of
a State other than a local government or
State-controlled institution of higher
education;
(d) The Commonwealths of Puerto
Rico and the Northern Mariana Islands;
and
(e) The United States Virgin Islands,
Guam, American Samoa, and a territory
or possession of the United States.
§ 33.360
Subaward.
Subaward has the meaning given in
paragraph d.4 of the award term in
§ 33.220.
§ 33.365
Subrecipient.
Subrecipient has the meaning given in
paragraph d.5 of the award term in
§ 33.220.
[FR Doc. E8–12558 Filed 6–5–08; 8:45 am]
BILLING CODE 3110–01–P
E:\FR\FM\06JNP2.SGM
06JNP2
Agencies
[Federal Register Volume 73, Number 110 (Friday, June 6, 2008)]
[Proposed Rules]
[Pages 32417-32421]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-12558]
Federal Register / Vol. 73, No. 110 / Friday, June 6, 2008 / Proposed
Rules
[[Page 32417]]
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OFFICE OF MANAGEMENT AND BUDGET
2 CFR Part 33
Requirements for Federal Funding Accountability and Transparency
Act Implementation
AGENCY: Office of Federal Financial Management, Office of Management
and Budget (OMB).
ACTION: Proposed guidance to agencies.
-----------------------------------------------------------------------
SUMMARY: OMB proposes to issue guidance to agencies to establish
requirements for federal financial assistance applicants, recipients,
and subrecipients that are necessary for the implementation of the
Federal Funding Accountability and Transparency Act of 2006 (Pub. L.
109-282, hereafter referred to as ``the Transparency Act'' or ``the
Act''). An agency under the proposed guidance would require applicants
other than individuals, with some specific exceptions, to have Dun and
Bradstreet Data Universal Numbering System (DUNS) numbers and maintain
current registrations in the Central Contractor Registration (CCR)
database. The guidance also provides standard wording for an award term
that each agency would include in its financial assistance awards. The
award term would require recipients and subrecipients that are subject
to the policy to have DUNS numbers, maintain current CCR registrations,
and report subaward data that the implementation of the Transparency
Act requires. This proposed implementation of the requirement for
reporting of subawards under federal financial assistance awards
parallels the Federal Acquisition Regulation implementation of that
Transparency Act reporting requirement for subcontracts under federal
procurement contracts (72 FR 51306, September 6, 2007).
DATES: Comments are due on or before August 5, 2008.
ADDRESSES: Due to potential delays in OMB's receipt and processing of
mail sent through the U.S. Postal Service, we encourage respondents to
submit comments electronically to ensure timely receipt. We cannot
guarantee that comments mailed will be received before the comment
closing date.
Electronic mail comments may be submitted to: Marguerite Pridgen at
mpridgen@omb.eop.gov. Please include ``Transparency Act Guidance'' in
the subject line and the full body of your comments in the text of the
electronic message and not as an attachment. Please include your name,
title, organization, postal address, telephone number, and e-mail
address in the text of the message. Comments may also be submitted via
facsimile to 202-395-3952.
Comments may be mailed to Marguerite Pridgen, Office of Federal
Financial Management, Office of Management and Budget, Room 6025, New
Executive Office Building, Washington, DC 20503.
Comments may also be sent via https://www.regulations.gov--a Federal
E-Government Web site that allows the public to find, review, and
submit comments on documents that agencies have published in the
Federal Register and that are open for comment. Simply type
``Transparency Act Guidance'' (in quotes) in the Comment or Submission
search box, click Go, and follow the instructions for submitting
comments. Comments received by the date specified above will be
included as part of the official record.
All responses will be summarized and included in the request for
OMB approval.
FOR FURTHER INFORMATION CONTACT: Marguerite Pridgen, Office of Federal
Financial Management, Office of Management and Budget, telephone (202)
395-7844 (direct) or (202) 395-3993 (main office) and e-mail:
Marguerite_E._Pridgen@omb.eop.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Transparency Act
The Act requires the Office of Management and Budget (OMB) to
ensure the existence and operation of a single Web site at which the
public may access and search data on federal financial assistance
awards. It:
Specifies that data on federal agencies' awards to non-
federal entities are to be available at the Web site by January 1,
2008.
Specifies that data on subawards under those federal
awards are to be available by January 1, 2009.
Exempts awards to individuals and individual transactions
of less than $25,000.
The Act identifies sixteen specific data elements that the Web site
must include for each federal award and authorizes OMB to specify
additional elements for other relevant information. The sixteen
elements the Act specifies are:
The name of the entity receiving the award;
The amount of the award;
The transaction type;
The funding agency;
The Catalog of Federal Domestic Assistance number;
The program source;
The location of the entity receiving the award, including
four data elements for the city, State, Congressional district, and
country;
The location of the primary place of performance under the
award, including four data elements for the city, State, Congressional
district, and country;
A unique identifier of the entity receiving the award; and
A unique identifier of the parent entity of the recipient,
should the recipient be owned by another entity.
Although the Act does not identify specific data elements for
subaward reporting, it does require that the data about subawards be
disclosed in the same manner as the data for federal agencies' awards.
It also requires OMB to conduct a pilot to determine how best to
implement a reporting system under which the entity issuing a subaward
is responsible for fulfilling the subaward reporting requirement.
II. Purposes of the Guidance
The proposed guidance following this preamble has three purposes,
all of which are related to the implementation of the Transparency Act.
Those purposes, which are identified in section 33.100 of the guidance,
are to establish:
A requirement to use the Data Universal Numbering System
(DUNS) number as the unique identifier for each entity receiving an
award or subaward;
Requirements for applicant, recipient and subrecipient
registration in the Central Contractor Registration (CCR) as a way to
maintain a reliable source of standard information about organizations
for Transparency Act reporting and other purposes; and
Requirements for recipient and subrecipient reporting of
obligations of federal funds for subawards.
The following paragraphs provide further information about these
three requirements.
DUNS number. The interagency task force that OMB established to
help implement the Transparency Act selected the DUNS number as the
unique identifier that the Act requires to be reported both for the
recipient and, if applicable, its parent entity. The proposed guidance
following this preamble therefore includes a Government-wide policy
under which agencies will require federal financial assistance
applicants and recipients, with a few exceptions, to have DUNS numbers.
The proposed guidance thereby would expand a current OMB policy
requiring use of DUNS numbers in conjunction with grants and
cooperative agreements, by broadening the policy to loans and other
types of
[[Page 32418]]
federal financial assistance awards. The current policy, the full text
of which is in the Federal Register [68 FR 38402, June 27, 2003], was
established by the July 15, 2003, OMB memorandum M-03-16, ``OMB Issues
Grants Management Policies'' (available at https://www.whitehouse.gov/
omb/memoranda/m03-16.pdf).
Central Contractor Registration. The proposed guidance also would
establish a requirement for applicant, recipient, and subrecipient
registration in the CCR, as a way to help ensure consistent reporting
of data about each entity and thereby make the data more useful to the
public. Without the requirement, multiple agencies doing business with
the same entity may use different variations of the entity's name,
address, or parent organization when they each report on their awards
to the entity. Using the DUNS number as the identifier for the entity,
as described in the preceding paragraph, can partially alleviate that
problem--each report of an award or subaward then can be linked to
standard information about the award recipient in data bases of Dun and
Bradstreet, Inc., which assigns and maintains DUNS numbers and
associated organizational information. The proposed guidance requiring
recipient and subrecipient registration in the CCR would further
improve data quality by allowing a report of an award or subaward to
also be linked to standard information that federal business partners
provide about themselves to that Government repository.
Subaward reporting. The Transparency Act requires reporting of
information about subawards under federal financial assistance awards.
The proposed guidance therefore includes a basic policy requiring
recipients and subrecipients to report on subawards they make. For two
reasons, however, it does not specify the data elements that must be
reported about each subaward. One reason is that data elements are best
maintained separately from the Code of Federal Regulations. The other
reason is that the data elements may be refined due to lessons learned
during the subaward pilot that The Transparency Act requires, so they
need not be formally established until after the pilot. At a later
date, separately from today's policy proposal, we will publish the data
elements for subaward reporting in the Federal Register with an
opportunity for comment before formally establishing them as the
required set.
III. The Proposed Guidance
The proposed guidance in 2 CFR part 33 is organized into three
subparts:
Subpart A states the purposes of the guidance, as
described above in Section II of this preamble. It also specifies the
types of federal financial assistance awards and types of recipient and
subrecipient entities to which the proposed guidance would apply.
Subpart B contains five sections that provide authorities
and specify responsibilities for agencies. Section 33.200 states
requirements for the content of agencies' program announcements,
regulations, or other issuances providing instructions for applicants.
Section 33.205 authorizes agencies to disqualify applicants that do not
comply with requirements to provide a DUNS er and register in the CCR.
Section 33.210 permits agencies to add DUNS number fields to
application forms or formats that OMB cleared previously and section
33.215 establishes requirements for agencies' information systems.
Finally, section 33.220 specifies standard wording of an award term for
federal financial assistance subject to The Transparency Act. The award
term requires recipients and subrecipients to register in the CCR and
report on subaward obligations that are subject to the Transparency Act
reporting requirements.
Subpart C contains definitions of terms used in 2 CFR part
33.
IV. Invitation To Comment
We invite comments from the affected public on all aspects of the
proposed guidance to agencies, including the proposal to require use of
the DUNS number, registration in the CCR, and reporting on subawards.
All comments will be considered in developing the final guidance.
List of Subjects in 2 CFR Part 33
Business and industry, Colleges and universities, Cooperative
agreements, Farmers, Federal aid programs, Grant programs, Grants
administration, Hospitals, Indians, Insurance, International
organizations, Loan programs, Nonprofit organizations, Reporting and
recordkeeping requirements, State and local governments, Subsidies.
Danny Werfel,
Deputy Controller.
Authority and Issuance
For the reasons set forth above, the Office of Management and
Budget proposes to amend 2 CFR chapter I by adding part 33 to read as
follows:
PART 33--UNIVERSAL IDENTIFIER, CENTRAL CONTRACTOR REGISTRATION, AND
SUBAWARD REPORTING
Sec.
Subpart A--General
33.100 Purposes of this part.
33.105 Applicability.
33.110 Deviations.
Subpart B--Policy
33.200 Requirements for program announcements, regulations, and
application instructions.
33.205 Effect of noncompliance with requirements in Sec. 33.200.
33.210 Authority to modify agency application forms or formats.
33.215 Requirements for agency information systems.
33.220 Award term.
Subpart C--Definitions
33.300 Agency.
33.305 Award.
33.310 Central Contractor Registration (CCR).
33.315 Data Universal Numbering System (DUNS) Number.
33.320 Entity.
33.325 Federal financial assistance subject to the Transparency Act.
33.330 For-profit organization.
33.335 Foreign public entity.
33.340 Indian tribe (or ``federally recognized Indian tribe'').
33.345 Local government.
33.350 Nonprofit organization.
33.355 State.
33.360 Subaward.
33.365 Subrecipient.
Authority: Pub. L. 109-282; 31 U.S.C. 6102.
Subpart A-General
Sec. 33.100 Purposes of this part.
This part provides guidance to agencies to establish:
(a) The Dun and Bradstreet (D&B) Data Universal Numbering System
(DUNS) number as a universal identifier for federal financial
assistance applicants, recipients, and subrecipients.
(b) The Central Contractor Registration (CCR) as the repository for
standard information about federal financial assistance applicants,
recipients, and subrecipients.
(c) Requirements for recipients' and subrecipients' reporting of
information on subawards, as required by the Federal Funding
Accountability and Transparency Act of 2006 (Pub. L. 109-282, hereafter
referred to as ``the Transparency Act'').
Sec. 33.105 Applicability.
(a) Types of awards. This part applies to an agency's grants,
cooperative
[[Page 32419]]
agreements, loans, and other federal financial assistance subject to
the Transparency Act, as defined in Sec. 33.325.
(b) Types of recipient and subrecipient entities. (1) General.
Through an agency's implementation of the guidance in this part, this
part applies to all entities, other than those excepted in paragraph
(b)(2) of this section, that--
(i) Apply for or receive agency awards; or
(ii) Receive subawards under those awards.
(2) Exceptions. (i) None of the requirements in this part apply to
an individual who applies for or receives federal financial assistance
as a natural person (i.e., unrelated to any business or non-profit
organization he or she may own or operate in his or her name).
(ii) The requirement in this part to maintain a current
registration in the CCR does not apply to:
(A) An agency of the Federal Government that receives an award from
another agency.
(B) A foreign entity applying for or receiving an award or subaward
for a project or program performed outside the United States, if an
agency deems it to be impractical for the entity to register in the
CCR.
(C) An entity to which an agency grants an exception based on a
need to protect information about the entity from disclosure, to avoid
compromising classified information or national security or
jeopardizing the personal safety of the entity's clients.
Sec. 33.110 Deviations.
Deviations from this part require the prior approval of the Office
of Management and Budget (OMB).
Subpart B--Policy
Sec. 33.200 Requirements for program announcements, regulations, and
application instructions.
(a) Each agency that awards grants, cooperative agreements, loans,
or other Federal financial assistance subject to the Transparency Act
must include the requirements described in paragraph (b) of this
section in each program announcement, regulation, or other issuance
containing instructions for applicants:
(1) Under which awards may be made that are subject to Transparency
Act reporting requirements; and
(2) That either:
(i) Is issued on or after the effective date of this part; or
(ii) Has application or plan due dates or anticipated award dates
after October 1, 2008.
(b) The program announcement, regulation, or other issuance must
require each entity that applies and does not have an exception under
Sec. 33.105(b)(2) to:
(1) Be registered in the CCR prior to submitting an application or
plan;
(2) Maintain a current CCR registration at all times during which
it has an active federal award or an application or plan under
consideration by an agency; and
(3) Provide its DUNS number in each application or plan it submits
to the agency.
(c) For purposes of this policy:
(1) The applicant is the entity that meets the agency's or
program's eligibility criteria and has the legal authority to apply and
to receive the award. For example, if a consortium applies for an award
to be made to the consortium as the recipient, the consortium must have
a DUNS number. If a consortium is eligible to receive funding under an
agency program but the agency's policy is to make the award to a lead
entity for the consortium, the DUNS number of the lead entity will be
used.
(2) A ``program announcement'' is any paper or electronic issuance
that an agency uses to announce a funding opportunity, whether it is
called a ``program announcement,'' ``notice of funding availability,''
``broad agency announcement,'' ``research announcement,''
``solicitation,'' or something else.
Sec. 33.205 Effect of noncompliance with requirements in Sec.
33.200.
(a) An agency may not make an award to an entity until the entity
has complied with all applicable requirements to provide a valid DUNS
number and register in the CCR.
(b) If an entity does not comply with an applicable requirement to
provide a DUNS number or register in the CCR, as specified in the
program announcement or other instructions, the agency:
(1) May determine that the applicant is not qualified to receive an
award; and
(2) May use that determination as a basis for making an award to an
alternative applicant.
Sec. 33.210 Authority to modify agency application forms or formats.
To implement the policies in Sec. Sec. 33.200 and 33.205, an
agency may add a DUNS number field to application forms or formats
previously approved by OMB, without having to obtain further approval
to add the field.
Sec. 33.215 Requirements for agency information systems.
Each agency that awards or administers grants, cooperative
agreements, loans, or other federal financial assistance subject to the
Transparency Act must ensure that systems processing information
related to the awards, and other systems as appropriate, are able to
accept and use the DUNS number as the universal identifier for
financial assistance applicants and recipients.
Sec. 33.220 Award term.
(a) To accomplish the purposes described in Sec. 33.100, an agency
must include the following award term in each award to a non-federal
entity of federal financial assistance subject to the Transparency Act:
I. Central Contractor Registration and subaward reporting.
a. Central Contractor Registration.
1. Unless you are excepted from this requirement under 2 CFR
33.105(b)(2), you as the recipient must maintain the currency of your
information in the Central Contractor Registration (CCR) until you
submit the final financial report required under this award or receive
the final payment, whichever is later.
2. If you are authorized to make subawards under this award and it
is possible that you will make a subaward to an entity (see definition
in paragraph d of this award term) with a total value of $25,000 or
more in federal funds over the life of the subaward, you:
i. Must notify potential subrecipients that no entity may receive
funds for a subaward with a total value in that range unless the entity
is registered in the CCR, which also requires that the subrecipient
have a Data Universal Numbering System (DUNS) number.
ii. May not make a subaward to an entity with a total value in that
range, or obligate additional funds for the subaward, unless the entity
is registered in the CCR.
b. Reporting of first-tier subawards.
1. Applicability. Unless you have a current exception from this
requirement under paragraph (e) of the Federal Funding Accountability
and Transparency Act of 2006 (Pub. L. 109-282), you must report each
action that obligates $25,000 or more in federal funds under any
subaward to an entity (see definitions in paragraph d of this award
term).
2. Where and when to report. You must report each action described
in paragraph b.1 of this award term:
i. To the https://WWW.USASpending.gov at usaspendingdata@gsa.gov.
[[Page 32420]]
ii. No later than 30 days after the date of the obligation.
3. What to report. You must report the information about each
action that the https://WWW.USASpending.gov specifies.
c. Requirements for lower-tier subawards and obligating actions.
1. Subawards. In any subaward that you make to an entity under this
award that you expect to have a total value of $25,000 or more in
federal funds over the life of the subaward, you must include an award
term that:
i. Provides the subrecipient with the federal award number or other
unique federal identifying number for this award.
ii. Requires the subrecipient to maintain a current registration in
the CCR during the period of performance under the subaward; and
iii. Requires the subrecipient, if it makes any obligating action
to which paragraph b.1 of this award term applies, to:
A. Report the action to either:
(1) The https://WWW.USASpending.gov within 30 days of the date of
obligation, providing the information about the action that the system
specifies; or
(2) You, if you prefer to have your subrecipient report each
obligating action to you, in which case you must report the action to
the https://WWW.USASpending.gov within 30 days of the subrecipient's
obligation; and
B. Ensure that the lower-tier subaward includes a term requiring
the lower-tier subrecipient to comply with the requirements in
paragraph c of this award term.
2. Obligating actions. For each action that you take to obligate
funding under a subaward described in paragraph c.1 of this award term,
you must provide the subrecipient with the amount of federal funding
that is included in the amount of funding obligated by the action.
d. Definitions. For purposes of this award term:
1. Central Contractor Registration (CCR) means the federal
repository into which an entity must provide information required for
the conduct of business as an award recipient or subrecipient.
Additional information about registration procedures may be found at
the CCR Internet site (currently at https://www.ccr.gov).
2. Data Universal Numbering System (DUNS) number means the nine-
digit number established and assigned by Dun and Bradstreet, Inc. (D&B)
to uniquely identify business entities. A DUNS number may be obtained
from D&B by telephone or the Internet (currently at https://
www.dunandbradstreet.com).
3. Entity means all of the following, as defined at 2 CFR part 33,
subpart C:
i. A Governmental organization, which is a State, local government,
or Indian tribe;
ii. A foreign public entity;
iii. A domestic or foreign nonprofit organization; and
iv. A domestic or foreign for-profit organization.
4. Subaward:
i. This term means a legal instrument to provide support for the
performance of any portion of the substantive project or program for
which you received this award and that:
A. You as the recipient awards to an eligible subrecipient; or
B. A subrecipient at one tier awards to a subrecipient at the next
lower tier.
ii. The term does not include your procurement of property and
services needed to carry out the project or program (for further
explanation, see Sec. --.210 of the attachment to OMB Circular A-133,
``Audits of States, Local Governments, and Non-Profit Organizations'').
iii. A subaward may be provided through any legal agreement,
including an agreement that you or a subrecipient considers a contract.
5. Subrecipient means an entity that:
i. Receives a subaward from you or from another subrecipient under
this award; and
ii. Is accountable to you or the other subrecipient for the use of
the federal funds provided by the subaward.
(b) An agency may--
(1) Reserve paragraphs b and c of the award term in paragraph (a)
of this section if there is no possibility of a subaward with a total
value of $25,000 or more in federal funds over the life of the
subaward; and
(2) Use different letters and numbers to designate the paragraphs
of the award term, if necessary, to conform the system of paragraph
designations with the one used in other terms and conditions in the
agency's awards.
Subpart C--Definitions
Sec. 33.300 Agency.
Agency means a Federal agency as defined at 5 U.S.C. 551(1) and
further clarified by 5 U.S.C. 552(f).
Sec. 33.305 Award.
Award means an award of Federal financial assistance subject to the
Transparency Act, as defined in Sec. 33.325.
Sec. 33.310 Central Contractor Registration (CCR).
Central Contractor Registration (CCR) has the meaning given in
paragraph d.1 of the award term in Sec. 33.220.
Sec. 33.315 Data Universal Numbering System (DUNS) Number.
Data Universal Numbering System (DUNS) Number has the meaning given
in paragraph d.2 of the award term in Sec. 33.220.
Sec. 33.320 Entity.
Entity has the meaning given in paragraph d.3 of the award term in
Sec. 33.220.
Sec. 33.325 Federal financial assistance subject to the Transparency
Act.
Federal financial assistance subject to the Transparency Act means
assistance that non-federal entities described in Sec. 33.105(b)
receive or administer in the form of--
(a) Grants;
(b) Cooperative agreements;
(c) Loans;
(d) Loan guarantees;
(e) Subsidies;
(f) Insurance;
(g) Food commodities;
(h) Direct appropriations; and
(i) Other financial assistance transactions that authorize the non-
federal entities' expenditure of federal funds.
Sec. 33.330 For-profit organization.
For-profit organization means a non-Federal party organized for
profit. It includes, but is not limited to:
(a) An ``S corporation'' incorporated under Subchapter S of the
Internal Revenue Code;
(b) A corporation incorporated under another authority;
(c) A partnership;
(d) A limited liability corporation or partnership; and
(e) A sole proprietorship.
Sec. 33.335 Foreign public entity.
Foreign public entity means:
(a) A foreign government or foreign governmental entity;
(b) A public international organization, which is an organization
entitled to enjoy privileges, exemptions, and immunities as an
international organization under the International Organizations
Immunities Act (22 U.S.C. 288-288f);
(c) An entity owned (in whole or in part) or controlled by a
foreign government; and
(d) Any other entity consisting wholly or partially of one or more
foreign governments or foreign governmental entities.
[[Page 32421]]
Sec. 33.340 Indian tribe (or ``federally recognized Indian tribe'').
Indian tribe (or ``federally recognized Indian tribe'') means any
Indian tribe, band, nation, or other organized group or community,
including any Alaskan Native village or regional or village corporation
(as defined in, or established under, the Alaskan Native Claims
Settlement Act (43 U.S.C. 1601, et seq.)) that is recognized by the
United States as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
Sec. 33.345 Local government.
Local government means a:
(a) County;
(b) Borough;
(c) Municipality;
(d) City;
(e) Town;
(f) Township;
(g) Parish;
(h) Local public authority, including any public housing agency
under the United States Housing Act of 1937;
(i) Special district;
(j) School district;
(k) Intrastate district;
(l) Council of governments, whether or not incorporated as a
nonprofit corporation under State law; and
(m) Any other instrumentality of a local government.
Sec. 33.350 Nonprofit organization.
Nonprofit organization--
(a) Means any corporation, trust, association, cooperative, or
other organization that--
(1) Is operated primarily for scientific, educational, service,
charitable, or similar purposes in the public interest;
(2) Is not organized primarily for profit; and
(3) Uses net proceeds to maintain, improve, or expand the
operations of the organization.
(b) Includes nonprofit--
(1) Institutions of higher education;
(2) Hospitals; and
(3) Tribal organizations other than those included in the
definition of ``Indian tribe.''
Sec. 33.355 State.
State means--
(a) Any State of the United States;
(b) The District of Columbia;
(c) Any agency or instrumentality of a State other than a local
government or State-controlled institution of higher education;
(d) The Commonwealths of Puerto Rico and the Northern Mariana
Islands; and
(e) The United States Virgin Islands, Guam, American Samoa, and a
territory or possession of the United States.
Sec. 33.360 Subaward.
Subaward has the meaning given in paragraph d.4 of the award term
in Sec. 33.220.
Sec. 33.365 Subrecipient.
Subrecipient has the meaning given in paragraph d.5 of the award
term in Sec. 33.220.
[FR Doc. E8-12558 Filed 6-5-08; 8:45 am]
BILLING CODE 3110-01-P