Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements, 74634-74643 [2012-30228]

Agencies

• DEPARTMENT OF COMMERCE

[Federal Register Volume 77, Number 242 (Monday, December 17, 2012)]
[Notices]
[Pages 74634-74643]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30228]


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DEPARTMENT OF COMMERCE

[Docket No.: 121115633-2633-01]


Department of Commerce Pre-Award Notification Requirements for 
Grants and Cooperative Agreements

AGENCY: Department of Commerce (DOC).

ACTION: Notice.

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SUMMARY: This notice revises and updates the Department of Commerce 
(DOC) Pre-Award Notification Requirements for Grants and Cooperative 
Agreements, as published in the Federal Register (66 FR 49917) on 
October 1, 2001, and as amended on October 30, 2002 (67 FR 66109), on 
December 30, 2004 (69 FR 78389), and February 11, 2008 (73 FR 7696). 
This announcement constitutes a recompilation of the Department of 
Commerce pre-award requirements for grants and cooperative agreements, 
including all amendments and revisions to date.

DATES: These provisions are effective December 17, 2012.

FOR FURTHER INFORMATION CONTACT: Gary Johnson, Department of Commerce 
Office of Acquisition Management, Telephone Number: 202-482-1679.

SUPPLEMENTARY INFORMATION: The DOC is authorized to award grants and 
cooperative agreements under a wide range of programs that support 
economic development; international trade; minority businesses; 
standards and technology; oceanic/atmospheric services; and 
telecommunications and information.
    It is the policy of the DOC to seek full and open competition for 
awards of discretionary financial assistance funds whenever possible. 
Moreover, DOC financial assistance must be awarded through a merit-
based review and selection process. Notices announcing the availability 
of Federal funds for new awards for each DOC competitive financial 
assistance program will be posted on www.grants.gov by the sponsoring 
operating unit in the uniform format for an announcement of Federal 
Funding Opportunity (FFO) published by the Office of Management and 
Budget (OMB). In limited circumstances (e.g., when required by 
statute), DOC will also publish notices in the Federal Register 
announcing the availability of Federal funds for new awards. These 
announcements will reference or include the DOC Pre-Award Notification 
Requirements identified in Sections A and B of this notice, and the 
program-specific information identified in Section C of this notice, 
and will follow the uniform format for announcements of funding 
opportunities as identified in Section D.
    This announcement provides notice of the DOC Pre-Award Notification 
Requirements that apply to all DOC-sponsored grant and cooperative 
agreement programs, and that may supplement those program announcements 
that reference this notice. Some of the DOC general provisions 
published herein contain, by reference or substance, a summary of the 
pertinent statutes or regulations published in the U.S. Code (U.S.C.), 
Federal Register, or Code of Federal Regulations (CFR), or requirements 
provided in Executive Orders, OMB Circulars (circulars), or Assurances 
(Forms SF-424B and SF-424D). This notice does not intend to be a 
derogation of, or amend, any statute, regulation, Executive Order, 
circular, or Standard Form.
    Each individual award notice will complete and include the relevant 
analyses pursuant to the requirements in Executive Order 12866, 
Executive Order 13132, the Administrative Procedure Act, the Regulatory 
Flexibility Act, and the Paperwork Reduction Act, as applicable.
    A. The following pre-award notice provisions apply to all 
applicants for and recipients of DOC grants and cooperative agreements:

[[Page 74635]]

    1. Federal Policies and Procedures. Applicants, recipients and 
subrecipients are subject to all Federal laws and Federal and DOC 
policies, regulations, and procedures applicable to Federal financial 
assistance.
    2. Debarment, Suspension, Drug-Free Workplace, and Lobbying 
Provisions. All applicants must comply with the requirements of subpart 
C of 2 CFR part 1326, ``Nonprocurement Debarment and Suspension,'' 15 
CFR part 29, ``Governmentwide Requirements for Drug-Free Workplace 
(Financial Assistance)'' and 15 CFR part 28, ``New Restrictions on 
Lobbying,'' including the submission of required forms and obtaining 
certification from lower tier applicants and bidders.
    3. Pre-Award Screening of Applicant's and Recipient's Management 
Capabilities, Financial Condition, and Present Responsibility. It is 
the policy of the DOC to make awards to applicants and recipients that 
are competently managed, responsible, financially capable and committed 
to achieving the objectives of the award(s) they receive. Therefore, 
pre-award screening may include, but is not limited to, the following 
reviews:
    (a) Past Performance. Unsatisfactory performance under prior 
Federal awards may result in an application not being considered for 
funding.
    (b) Credit Checks. A credit check will be performed on individuals, 
for-profit, and non-profit organizations.
    (c) Delinquent Federal Debts. No award of Federal funds shall be 
made to an applicant that has an outstanding delinquent Federal debt 
until:
    (1) The delinquent account is paid in full;
    (2) A negotiated repayment schedule is established and at least one 
payment is received; or
    (3) Other arrangements satisfactory to the DOC are made.
    Pursuant to 31 U.S.C. 720B and 31 CFR 901.6, unless waived, the DOC 
is not permitted to extend financial assistance in the form of a loan, 
loan guarantee, or loan insurance to any person delinquent on a nontax 
debt owed to a Federal agency. This prohibition does not apply to 
disaster loans.
    Pursuant to 28 U.S.C. 3201(e), a debtor who has a judgment lien 
against the debtor's property for a debt to the United States shall not 
be eligible to receive any grant or loan which is made, insured, 
guaranteed, or financed directly or indirectly by the United States or 
to receive funds directly from the Federal Government in any program, 
except funds to which the debtor is entitled as beneficiary, until the 
judgment is paid in full or otherwise satisfied. The DOC sponsoring 
operating units may promulgate regulations to allow for waiver of this 
restriction on eligibility for such grants and cooperative agreements.
    (d) List of Parties Excluded from Procurement and Nonprocurement 
Programs. The System for Award Management (SAM) (previously this 
information was located within the Excluded Parties Listing System), 
maintained by the General Services Administration (GSA), is available 
at https://www.sam.gov. SAM encompasses the capabilities of the Central 
Contractor Registration (CCR)/Federal Agency Registration (FedReg), 
Online Representations and Certifications Application (ORCA), and the 
Excluded Parties List System (EPLS), among other federal databases, and 
will be checked by DOC to ensure that an applicant is properly 
registered and eligible to receive a DOC financial assistance award.
    (e) Pre-Award Accounting System Surveys. The Grants Office may 
require a pre-award survey of the applicant's financial management 
system in cases where the recommended applicant has had no prior 
Federal support, the operating unit has reason to question whether the 
financial management system meets Federal financial management 
standards, or the applicant is being considered for a high-risk 
designation.
    (f) Other. DOC may conduct additional pre-award screenings in 
accordance with new public laws or administrative directives.
    4. No Obligation for Future Funding. If the DOC obligates funding 
for an applicant's project, the DOC has no obligation to provide any 
additional future funding in connection with that award. Any amendment 
of an award to increase funding or to extend the period of performance 
is at the total discretion of the DOC.
    5. Pre-Award Activities. If an applicant incurs any costs prior to 
receiving an award, it does so solely at its own risk of not being 
reimbursed by the Government. Notwithstanding any verbal or written 
assurance that may have been received, there is no obligation on the 
part of DOC to cover pre-award costs unless approved by the Grants 
Officer as part of the terms when the award is made, or as authorized 
for awards that support research by 15 CFR 14.25(e)(4).
    6. Freedom of Information Act (FOIA) Disclosure. The FOIA (5 U.S.C. 
552 and DOC regulations at 15 CFR part 4) sets forth the process and 
procedure the DOC follows to make requested material, information, and 
records publicly available. Unless prohibited by law and to the extent 
required under the FOIA, contents of applications, proposals, and other 
information submitted by applicants may be released in response to FOIA 
requests. In accordance with 15 CFR 4.9, applicants and recipients 
should designate by appropriate markings, either at the time of 
submission or at a reasonable time thereafter, any portions of its 
submissions that it considers protected from disclosure under 5 U.S.C. 
552(b)(4). In addition, Federal contractors may assist with program 
implementation and have access to materials applicants and recipients 
submit.
    7. False Statements. A false statement on an application is grounds 
for denial or termination of an award, and/or possible punishment by a 
fine or imprisonment as provided in 18 U.S.C. 1001.
    8. Application Forms. Unless the individual programs specify 
differently in notices announcing the availability of funding, the 
following forms, family of forms, and/or certifications are required, 
as applicable, for DOC grants and cooperative agreements: OMB Standard 
Forms (SF) SF-424, Application for Federal Assistance; SF-424A, Budget 
Information--Non-Construction Programs; SF-424B, Assurances--Non-
Construction Programs; SF-424C, Budget Information--Construction 
Programs; SF-424D, Assurances--Construction Programs; SF-424 Family of 
Forms for Research and Related Programs; SF-424 Short Organizational 
Family; SF-424 Individual Form Family; and SF-424 Mandatory Family. In 
addition, Commerce Department (CD) Forms CD-511, Certification 
Regarding Lobbying; CD-512, Certification Regarding Lobbying--Lower-
Tier Covered Transactions; and SF-LLL, Disclosure of Lobbying 
Activities, will be used as appropriate.
    9. Environmental Requirements. Environmental impacts must be 
considered by Federal decision makers in their decisions whether to (1) 
approve a proposal for Federal assistance; (2) approve the proposal 
with mitigation; or (3) approve a different proposal/grant having less 
adverse environmental impacts. Federal environmental laws require that 
the funding agency initiate an early planning process that considers 
potential impacts that projects funded with Federal assistance may have 
on the environment. Applicants, recipients and subrecipients must 
comply with all environmental standards, to include those prescribed 
under the following

[[Page 74636]]

statutes and Executive Orders, and shall identify to the awarding 
agency any impact the award may have on the environment. The failure to 
do so is a basis for not selecting an application. In some cases, if 
additional information is required after an application is selected, 
funds can be withheld by the Grants Officer under a special award 
condition requiring the recipient to submit additional environmental 
compliance information sufficient to enable the DOC to make an 
assessment on any impacts that a project may have on the environment.
    (a) The National Environmental Policy Act (42 U.S.C. 4321 et seq.). 
Applicants for and recipients of Federal financial assistance awards 
are required to identify to the awarding agency any impact an award 
will have on the quality of the human environment, and assist the 
agency to comply with the National Environmental Policy Act, when the 
award activities remain subject to Federal authority and control. 
Applicants for and recipients of assistance may be requested to assist 
DOC in drafting an environmental impact assessment or environmental 
impact statement as part of a proposal if DOC determines such 
documentation is required.
    (b) National Historic Preservation Act (16 U.S.C. 470 et seq.). 
Applicants for and recipients of Federal financial assistance awards 
are required to identify to the awarding agency any effects the award 
may have on properties included on or eligible for inclusion on the 
National Register of Historic Places. Applicants and recipients may 
also be requested to assist DOC in consulting with State or Tribal 
Historic Preservation Officers or other applicable interested parties 
necessary to identify, assess and resolve adverse effects to historic 
properties.
    (c) Executive Order 11988 (``Floodplain Management'') and Executive 
Order 11990 (``Protection of Wetlands''). Applicants and recipients 
must identify proposed actions located in Federally defined floodplains 
and wetlands to enable DOC to make a determination whether there is an 
alternative to minimize any potential harm.
    (d) Clean Air Act (42 U.S.C. 7401 et seq.), Federal Water Pollution 
Control Act (33 U.S.C. 1251 et seq.) (Clean Water Act), and Executive 
Order 11738 (``Providing for administration of the Clean Air Act and 
the Federal Water Pollution Control Act with respect to Federal 
contracts, grants or loans''). Applicants and recipients must comply 
with the provisions of the Clean Air Act (42 U.S.C. 7401 et seq.), 
Clean Water Act (33 U.S.C. 1251 et seq.), and Executive Order 11738. 
Recipients shall not use a facility that EPA has placed on the 
Environmental Protection Agency's (EPA) List of Violating Facilities 
(this list is incorporated into the Excluded Parties List System which 
is incorporated into the SAM located at https://www.sam.gov/portal/public/SAM) in performing any award that is nonexempt under subpart J 
of 2 CFR part 1532.
    (e) The Flood Disaster Protection Act (42 U.S.C. 4002 et seq.). 
Flood insurance, when available, is required for Federally assisted 
construction or acquisition in flood-prone areas.
    (f) The Endangered Species Act (16 U.S.C. 1531 et seq.). Applicants 
and recipients must identify any impact or activities that may involve 
a threatened or endangered species. Federal agencies have the 
responsibility for ensuring that a protected species or habitat does 
not incur adverse effects from actions under Federal assistance awards, 
and for conducting the required reviews under the Endangered Species 
Act, as applicable.
    (g) The Coastal Zone Management Act (16 U.S.C. 1451 et seq.). 
Funded projects must be consistent with a coastal state's approved 
management program for the coastal zone.
    (h) The Coastal Barriers Resources Act (16 U.S.C. 3501 et seq.). 
Only in certain circumstances can Federal funding be provided for 
actions within a Coastal Barrier System.
    (i) The Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.). This 
Act applies to awards that may affect existing or proposed components 
of the National Wild and Scenic Rivers system.
    (j) The Safe Drinking Water Act (42 U.S.C. 300 et seq.). This Act 
precludes Federal assistance for any project that the EPA determines 
may contaminate a sole source aquifer so as to threaten public health.
    (k) The Resource Conservation and Recovery Act (42 U.S.C. 6901 et 
seq.). This act regulates the generation, transportation, treatment, 
and disposal of hazardous wastes, and also provides that recipients of 
Federal funds give preference in their procurement programs to the 
purchase of recycled products pursuant to EPA guidelines.
    (l) The Comprehensive Environmental Response, Compensation, and 
Liability Act (Superfund) (42 U.S.C. 9601) and the Community 
Environmental Response Facilitation Act (42 U.S.C. 9601 et seq.). These 
requirements address responsibilities related to actual or threatened 
hazardous substance releases and environmental cleanup. There are also 
reporting and community involvement requirements designed to ensure 
disclosure of the release or disposal of regulated substances and 
cleanup of hazards to state and local emergency responders.
    (m) Executive Order 12898 (``Environmental Justice in Minority 
Populations and Low Income Populations''). This Order identifies and 
addresses adverse human health or environmental effects of programs, 
policies and activities on low income and minority populations.
    10. Limitation of Liability. In no event will the Department of 
Commerce be responsible for proposal preparation costs if a program 
fails to receive funding or is cancelled because of other agency 
priorities. The publication of an announcement of funding availability 
does not oblige the agency to award any specific project or to obligate 
any available funds.
    B. The following general provisions will apply to all DOC grant and 
cooperative agreement awards:
    1. Administrative Requirements and Cost Principles. The uniform 
administrative requirements for all DOC grants and cooperative 
agreements are codified at 15 CFR part 14, ``Uniform Administrative 
Requirements for Grants and Agreements with Institutions of Higher 
Education, Hospitals, Other Non-Profit, and Commercial Organizations,'' 
and at 15 CFR part 24, ``Uniform Administrative Requirements for Grants 
and Agreements to State and Local Governments.'' The following list of 
cost principles, which are incorporated by reference in 15 CFR parts 14 
and 24, are included in the DOC's grants and cooperative agreements: 2 
CFR part 220 (OMB Circular A-21), ``Cost Principles for Educational 
Institutions;'' 2 CFR part 225 (OMB Circular A-87), ``Cost Principles 
for State, Local and Indian Tribal Governments;'' 2 CFR part 230 (OMB 
Circular A-122), ``Cost Principles for Nonprofit Organizations;'' 
Federal Acquisition Regulation subpart 31.2, ``Contracts with 
Commercial Organizations,'' codified at 48 CFR 31.2; and 45 CFR part 
74, ``Principles for Determining Costs Applicable to Research and 
Development Under Grants and Contracts with Hospitals.'' Applicable 
administrative requirements and cost principles are identified in each 
award and are incorporated by reference into the award. Expenditures 
for any financial assistance award must be necessary to carry out the 
authorized project and be consistent with the applicable cost 
principles.
    2. Award Payments. Advances will be limited to the minimum amounts 
necessary to meet immediate disbursement needs, but in no case

[[Page 74637]]

should advances exceed the amount of cash required for a 30-day period. 
Any advanced funds that are not disbursed in a timely manner and any 
applicable interest must be returned promptly to the DOC. Certain 
bureaus within the DOC use the Department of Treasury's Automated 
Standard Application for Payment (ASAP) system. In order to receive 
payments under ASAP, recipients will be required to enroll 
electronically in the ASAP system by providing their Federal Awarding 
Agency with pertinent information to begin the enrollment process, 
which allows them to use the on-line and Voice Response System (VRS) 
method of withdrawing funds from their ASAP established accounts. It is 
the recipient's responsibility to ensure that its contact information 
is correct. The funding agency must be provided a Point of Contact 
name, mailing address, email address, telephone number, Data Universal 
Number System (DUNS) identifier issued by the commercial company Dun & 
Bradstreet (D&B), and taxpayer identification number (TIN) to commence 
the enrollment process. In order to be able to complete the enrollment 
process, the recipient will need to identify a Head of Organization, an 
Authorizing Official, and a Financial Officer. It is very important 
that the recipient's banking data be linked to the funding agency's 
Agency Location Code in order to ensure proper payment under an award. 
For additional information on this requirement, prospective applicants 
should contact their Federal Awarding Agency.
    3. Federal and Non-Federal Cost Sharing.
    (a) Awards that include Federal and non-Federal cost sharing will 
incorporate a budget consisting of shared allowable costs. If actual 
allowable costs are less than the total approved budget, the Federal 
and non-Federal cost shares shall be calculated by applying the 
approved Federal and non-Federal cost share ratios to actual allowable 
costs. If actual allowable costs are greater than the total approved 
budget, the Federal share will not exceed the total Federal dollar 
amount authorized by the award.
    (b) The non-Federal share, whether in cash or in-kind, is to be 
paid out at the same general rate as the Federal share. Exceptions to 
this requirement may be granted by the Grants Officer based on 
sufficient documentation demonstrating previously determined plans for 
or later commitment of cash or in-kind contributions. In any case, 
recipients must meet the cost share commitment over the life of the 
award.
    4. Budget Changes and Transfers Among Cost Categories. When the 
terms of an award allow the recipient to transfer funds among approved 
direct cost categories, the transfer authority does not authorize the 
recipient to create new budget categories within an approved budget 
unless the Grants Officer has provided prior approval. In addition, the 
recipient will not be authorized at any time to transfer amounts 
budgeted for direct costs to the indirect costs line item or vice 
versa, without written prior approval of the Grants Officer.
    5. Indirect Costs and Facilities and Administrative Costs.
    (a) Indirect costs, or facilities and administrative (F&A) costs 
for educational institutions, will not be allowable charges against an 
award unless permitted under the award and specifically included as a 
line item in the award's approved budget.
    (b) Excess indirect costs may not be used to offset unallowable 
direct costs.
    (c) OMB established the cognizant agency concept, under which a 
single agency represents all others in dealing with grantees in common 
areas. The cognizant agency reviews and approves grantees' indirect 
cost rates. Approved rates must be accepted by other agencies, unless 
specific program regulations restrict the recovery of indirect costs. 
If indirect costs are permitted and the recipient would like to include 
indirect costs in its budget, but the recipient has not previously 
established an indirect cost rate with a Federal agency, the 
negotiation and approval of a rate will be subject to the procedures in 
the applicable cost principles and the following subparagraphs:
    (1)(i) State, local, and Indian Tribal Governments; Educational 
Institutions; Hospitals and Non-Profit Organizations (Non-Commercial 
Organizations).
    For those organizations for which the DOC is cognizant or has 
oversight, the DOC or its designee will either negotiate a fixed rate 
with carry-forward provisions or, in some instances, limit its review 
to evaluating the procedures described in the recipient's cost 
allocation plan. Indirect cost rates and cost allocation methodology 
reviews are subject to future audits to determine actual indirect 
costs.
    (ii) Commercial Organizations
    For commercial organizations, the term ``cognizant federal agency'' 
generally is defined as the agency that provides the largest dollar 
amount of negotiated contracts, including options. See 48 CFR part 42. 
If the only federal funds received by a commercial organization are DOC 
award funds, then the DOC becomes the cognizant federal agency for the 
purpose of indirect cost negotiations. For those organizations for 
which the DOC is cognizant, DOC or its designee will negotiate a fixed 
rate with carry-forward provisions for the recipient. ``Fixed rate'' 
means an indirect cost rate which has the same characteristics as a 
pre-determined rate, except that the difference between the estimated 
costs and the actual costs of the period covered by the rate is carried 
forward as an adjustment to the rate computation of the subsequent 
period. DOC or its designee will negotiate indirect cost rates using 
the cost principles found in 48 CFR part 31, ``Contract Cost Principles 
and Procedures.'' For guidance on how to put an indirect cost plan 
together go to: https://www.dol.gov/oasam/programs/boc/costdeterminationguide/main.htm.
    (2) Within 90 days of the award date, the recipient shall submit to 
the address listed below documentation (indirect cost proposal, cost 
allocation plan, etc.) necessary to perform the review. The recipient 
shall provide the Grants Officer with a copy of the transmittal letter.
    Office of Acquisition Management, U.S. Department of Commerce, 14th 
Street and Constitution Avenue NW., Room 6412, Washington, DC 20230.
    (3) The recipient can use the fixed rate proposed in the indirect 
cost plan until such time as the DOC provides a response to the 
submitted plan. Actual indirect costs must be calculated annually and 
adjustments made through the carry-forward provision used in 
calculating next year's rate. This calculation of actual indirect costs 
and the carry-forward provision is subject to audit. Indirect cost rate 
proposals must be submitted annually. Organizations that have 
previously established indirect cost rates must submit a new indirect 
cost proposal to the cognizant agency within six months after the close 
of each recipient's fiscal year.
    (d) When the DOC is not the oversight or cognizant Federal agency, 
the recipient shall provide the Grants Officer with a copy of a 
negotiated rate agreement or a copy of the transmittal letter submitted 
to the cognizant or oversight Federal agency requesting a negotiated 
rate agreement.
    (e) If the recipient fails to submit the required documentation to 
the DOC within 90 days of the award date, the recipient may be 
precluded from recovering any indirect costs under the award. If the 
DOC, oversight, or cognizant Federal agency determines there is good 
cause to excuse the recipient's delay in submitting the documentation, 
an extension of the 90-

[[Page 74638]]

day due date may be approved by the Grants Officer.
    (f) The maximum dollar amount of allocable indirect costs for which 
the DOC will reimburse the recipient shall be the lesser of the line 
item amount for the Federal share of indirect costs contained in the 
approved budget of the award, or the Federal share of the total 
allocable indirect costs of the award based on the indirect cost rate 
approved by an oversight or cognizant Federal agency and applicable to 
the period in which the cost was occurred, provided the rate is 
approved on or before the award end date.
    6. Tax Refunds. Refunds of Federal Insurance Contributions Act 
(FICA) or Federal Unemployment Tax Act (FUTA) taxes received by a 
recipient during or after the project period must be refunded or 
credited to the DOC where the benefits were financed with Federal funds 
under the award. Recipients are required to contact the Grants Officer 
immediately upon receipt of these refunds. Recipients are required to 
refund portions of FICA/FUTA taxes determined to belong to the Federal 
Government, including refunds received after the project period ends.
    7. Other Federal Awards with Similar Programmatic Activities. 
Recipients will be required to provide written notification to the 
Federal Program Officer and the Grants Officer in the event that, 
subsequent to receipt of the DOC award, other financial assistance is 
received to support or fund any portion of the scope of work 
incorporated into the DOC award. The DOC will not pay for costs that 
are funded by other sources.
    8. Non-Compliance with Award Provisions. Failure to comply with any 
or all of the provisions of an award, or the requirements of this 
notice, may have a negative impact on future funding by the DOC and may 
be considered grounds for any or all of the following enforcement 
actions: establishment of an account receivable, withholding payments 
under any DOC awards to the recipient, changing the method of payment 
from advance to reimbursement only, or the imposition of other special 
award conditions, suspension of any DOC active awards, or termination 
of any DOC active awards.
    9. Prohibition Against Assignment by the Recipient. Notwithstanding 
any other provision of an award, recipients may not transfer, pledge, 
mortgage, or otherwise assign an award, or any interest therein, or any 
claim arising thereunder, to any party or parties, banks, trust 
companies, or other financing or financial institutions without the 
express written approval of the Grants Officer.
    10. Non-Discrimination Requirements. There are several Federal 
statutes, regulations, Executive Orders, and policies relating to 
nondiscrimination. No person in the United States shall, on the grounds 
of race, color, national origin, handicap, religion, age, or sex, be 
excluded from participation in, be denied the benefits of, or be 
subject to discrimination under any program or activity receiving 
Federal financial assistance. These requirements include but are not 
limited to:
    (a) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 
seq.) and the DOC's implementing regulations published at 15 CFR part 8 
prohibiting discrimination on the grounds of race, color, or national 
origin under programs or activities receiving Federal financial 
assistance;
    (b) Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et 
seq.) and the DOC's implementing regulations at 15 CFR part 8a 
prohibiting discrimination on the basis of sex under Federally assisted 
education programs or activities;
    (c) Section 504 of the Rehabilitation Act of 1973, as amended (29 
U.S.C. 794) and the DOC's implementing regulations published at 15 CFR 
part 8b prohibiting discrimination on the basis of handicap under any 
program or activity receiving or benefiting from Federal assistance. 
The U.S. Department of Justice issued regulations implementing Title II 
of the Americans with Disabilities Act (ADA) (28 CFR part 35; 75 FR 
56164, as amended by 76 FR 13285) and Title III of the ADA (28 CFR part 
36; 75 FR 56164, as amended by 76 FR 13286). These regulations adopt 
enforceable accessibility standards called the ``2010 ADA Standards for 
Accessible Design'' (2010 Standards). For purposes of complying with 
DOC's regulations, the 2010 Standards are an acceptable alternative to 
the Uniform Federal Accessibility Standards (UFAS). DOC deems 
compliance with the 2010 Standards to be an acceptable means of 
complying with the Section 504 accessibility requirements for new 
construction and alteration projects under 15 CFR 8b.18(c), as follows:
    (1) Public Recipients subject to Title II of the ADA may use either 
the 2010 Standards or UFAS where the physical construction or 
alternations commence on or after September 15, 2010 and before March 
15, 2012 (see 28 CFR 35.151(c)(2));
    (2) Private Recipients subject to Title III of the ADA may use 
either the 2010 Standards or UFAS if the date when the last application 
for a building permit or permit extension is certified to be complete 
by a State, county, or local government (or, in those jurisdictions 
where the government does not certify completion of applications, if 
the date when the last application for a building permit or permit 
extension is received by the State, county, or local government) is on 
or after September 15, 2010 and before March 15, 2012, or if no permit 
is required, if the start of physical construction or alterations 
occurs on or after September 15, 2010 and before March 15, 2012 (see 28 
CFR 36.406(a)(2)); and
    (3) In all cases, once a recipient selects an applicable ADA 
accessibility standard (i.e., the 2010 Standards or UFAS), that 
standard must be applied to the entire facility. As of March 15, 2012, 
all new construction and alteration projects must comply with the 2010 
Standards.
    (d) The Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) and 
the DOC's implementing regulations published at 15 CFR part 20 
prohibiting discrimination on the basis of age in programs or 
activities receiving Federal financial assistance;
    (e) The Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et 
seq.) prohibiting discrimination on the basis of disability under 
programs, activities, and services provided or made available by state 
and local governments or instrumentalities or agencies thereto, as well 
as public or private entities that provide public transportation;
    (f) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et 
seq.), relating to nondiscrimination in the sale, rental or financing 
of housing;
    (g) Parts II and III of Executive Order 11246, as amended by 
Executive Orders 11375 and 12086 requiring Federally assisted 
construction contracts to include the nondiscrimination provisions of 
sections 202 and 203 of that Executive Order and the Department of 
Labor's regulations at 41 CFR 60-1.4(b) implementing Executive Order 
11246;
    (h) Executive Order 13166 (August 11, 2000), ``Improving Access to 
Services for Persons With Limited English Proficiency,'' requiring 
Federal agencies to examine the services provided, identify any need 
for services to those with limited English proficiency (LEP), and 
develop and implement a system to provide those services so LEP persons 
can have meaningful access to them, and DOC policy guidance issued on 
March 24, 2003 (68 FR 14180) to Federal financial assistance recipients 
on the Title VI prohibition against national

[[Page 74639]]

origin discrimination affecting LEP persons; and
    (i) In recognition of the constitutionally-protected interest of 
religious organizations in making religiously-motivated employment 
decisions, Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e 
et seq., which expressly exempts religious organizations from the 
prohibition against discrimination on the basis of religion. See 42 
U.S.C. 2000e-1(a).
    11. Audits of Organizations Covered by OMB Circular A-133, ``Audits 
of States, Local Governments, and Non-Profit Organizations'' and the 
related Compliance Supplement. Recipients that are subject to OMB 
Circular A-133, and that expend $500,000 or more in Federal awards in a 
fiscal year shall have an audit conducted for that year in accordance 
with the requirements of OMB Circular A-133, issued pursuant to the 
Single Audit Act of 1984 (Pub. L. 98-502), as amended by the Single 
Audit Act Amendments of 1996 (Pub. L. 104-156).
    12. Unless otherwise specified in the terms and conditions of the 
award, in accordance with 15 CFR Sec.  14.26(c) and (d), for-profit 
hospitals, commercial entities, and other organizations not required to 
follow the audit provisions of OMB Circular A-133 shall have a program-
specific audit performed by an independent auditor when the federal 
share amount awarded is $500,000 or more over the duration of the 
project period. An audit is required at least once every two years 
using the following schedule for audit report submission.
    (a) For awards where the project period is less than two years, an 
audit is required within 90 days of the end of the project period to 
cover the entire project (the award close-out period is included in the 
90 days);
    (b) For awards with a two- or three-year project period, an audit 
is required within 90 days after the end of the first year to cover 
Year 1, which is the period of time when Federal funding is available 
for obligation by the recipient, and within 90 days of the end of the 
project period to cover Year 2 and Year 3 (if applicable) (the award 
close-out period is included in the 90 days); or
    (c) For awards with a four- to five-year project period, an audit 
is required within 90 days after the end of the first year to cover 
Year 1, within 90 days after the end of the third year to cover Year 2 
and Year 3, and within 90 days of the end of the project period to 
cover Year 4 for and Year 5 (if applicable) (the award close-out period 
is included in the 90 days).
    Some DOC programs have specific audit guidelines that will be 
incorporated into the award. When DOC does not have a program-specific 
audit guide available for the program, the auditor will follow the 
requirements for a program-specific audit as described in OMB Circular 
A-133, subpart B, Sec.  ----.235. The Recipient may include a line item 
in the budget for the cost of the audit for approval by the Grants 
Officer.
    13. Policies and Procedures for Resolution of Audit-Related Debts. 
The DOC has established policies and procedures for handling the 
resolution and reconsideration of financial assistance audits which 
have resulted in, or may result in, the establishment of a debt 
(account receivable) for financial assistance awards. These policies 
and procedures are contained in the Federal Register notice dated 
January 27, 1989. See 54 FR 4053. The policies and procedures also are 
provided in more detail in the Department of Commerce Financial 
Assistance Standard Terms and Conditions.
    14. Debts. Any debts determined to be owed the Federal Government 
shall be paid promptly by the recipient. The DOC's debt collection 
procedures are set out in 15 CFR part 19. In accordance with 15 CFR 
Sec.  19.1, delinquent debt is a debt that has not been paid by the 
date specified in the agency's initial written demand for payment or 
applicable agreement or instrument (including a post-delinquency 
payment agreement) unless other satisfactory payment arrangements have 
been made. In accordance with 15 CFR Sec.  19.5 and 31 U.S.C. 3717, 
failure to pay a debt by the due date, or if there is no due date, 
within 30 days of the billing date, shall result in assessment of 
interest, penalties and administrative costs in accordance with the 
provisions of 31 U.S.C. 3717 and 31 CFR Sec.  901.9. DOC entities will 
transfer any DOC debt that is more than 180 days delinquent to the 
Financial Management Service for debt collection services, a process 
known as ``cross-servicing,'' pursuant 31 U.S.C. 3711(g), 31 CFR Sec.  
285.12 and 15 CFR Sec.  19.9, and may result in the DOC taking further 
action as specified in the terms of the award. Funds for payment of a 
debt must not come from other federally sponsored programs. 
Verification that other Federal funds have not been used will be made, 
e.g., during on-site visits and audits.
    15. Post-Award Discovery of Adverse Information. After an award is 
made, if adverse information on a recipient or any key individual 
associated with a recipient is discovered which reflects significantly 
and adversely on the recipient's responsibility, the Grants Officer may 
take the following actions:
    (a) Require the recipient to correct the conditions.
    (b) Consider the recipient to be ``high risk'' and unilaterally 
impose special award conditions to protect the Federal Government's 
interest.
    (c) Suspend or terminate an active award. The recipient will be 
afforded due process while effecting such actions.
    (d) Require the removal of personnel from association with the 
management of and/or implementation of the project and require Grants 
Officer approval of personnel replacements.
    16. Competition and Codes of Conduct.
    (a) Pursuant to the certification in Form SF-424B, paragraph 3, 
recipients must maintain written standards of conduct to establish 
safeguards to prohibit employees from using their positions for a 
purpose that constitutes or presents the appearance of a personal or 
organizational conflict of interest, or personal gain in the 
administration of this award and any subawards.
    (b) Recipients must maintain written standards of conduct governing 
the performance of their employees engaged in the award and 
administration of subawards. No employee, officer, or agent shall 
participate in the selection, award, or administration of a subaward 
supported by Federal funds if such participation would cause a real or 
apparent conflict of interest. Such a conflict would arise when the 
employee, officer, or agent, any member of his or her immediate family, 
his or her partner, or an organization in which he/she serves as an 
officer or which employs or is about to employ any of the parties 
mentioned in this section, has a financial or other interest in the 
organization selected or to be selected for a subaward. The officers, 
employees, and agents of the recipient may not solicit or accept 
anything of monetary value from subrecipients. However, the recipient 
may set standards for situations in which the financial interest is not 
substantial or the gift is an unsolicited item of nominal value. The 
standards of conduct must provide for disciplinary actions to be 
applied for violations of such standards by officers, employees, or 
agents of a recipient.
    (c) All subawards will be made in a manner to provide, to the 
maximum extent practicable, open and free competition. Recipients must 
be alert to organizational conflicts of interest as well as other 
practices among subrecipients that may restrict or eliminate 
competition. In order to

[[Page 74640]]

ensure objective subrecipient performance and eliminate unfair 
competitive advantage, subrecipients that develop or draft work 
requirements, statements of work, or requests for proposals will be 
excluded from competing for such subawards.
    (d) For purposes of the award, a financial interest may include 
employment, stock ownership, a creditor or debtor relationship, or 
prospective employment with an applicant. An appearance of impairment 
of objectivity could result from an organizational conflict where, 
because of other activities or relationships with other persons or 
entities, a person is unable or potentially unable to act in an 
impartial manner. It also could result from non-financial gain to the 
individual, such as benefit to reputation or prestige in a professional 
field.
    17. Small Businesses, Minority Business Enterprises and Women's 
Business Enterprises. The DOC encourages recipients to utilize small 
businesses, minority business enterprises and women's business 
enterprises in contracts under financial assistance awards. The DOC's 
Minority Business Development Agency can assist recipients in matching 
qualified minority business enterprises with contract opportunities.
    18. Subaward and/or Contract to a Federal Agency. Recipients, 
subrecipients, contractors, and/or subcontractors may not sub-grant or 
sub-contract any part of an approved project to any Federal department, 
agency, instrumentality, or employee thereof, without the prior written 
approval of the Grants Officer.
    19. Foreign Travel. Recipients must comply with the provisions of 
the Fly America Act (49 U.S.C. 40118) and the implementing Federal 
Travel Regulations (41 CFR Sec. Sec.  301-10.131 through 301-10.143). 
The Fly America Act requires that Federal travelers and others 
performing U.S. Government-financed air travel must use U.S. flag 
carriers, to the extent that service by such carriers is available. 
Foreign air carriers may be used only in specific instances, such as 
when a U.S. flag air carrier is unavailable, or use of U.S. flag 
carrier service will not accomplish the agency's mission. If a foreign 
air carrier is anticipated to be used for any portion of travel under a 
DOC financial assistance award, the recipient must receive prior 
approval from the Grants Officer.
    20. Purchase of American-Made Equipment and Products. Recipients 
are hereby notified that they are encouraged, to the greatest extent 
practicable, to purchase American-made equipment and products with 
funding provided under DOC financial assistance awards.
    21. Intellectual Property Rights.
    (a) Inventions. The rights to any invention made by a recipient 
under a DOC financial assistance award are determined by the Bayh-Dole 
Act, as amended (Pub. L. 96-517), as amended, and codified at 35 U.S.C. 
200 et seq., except as otherwise required by law. The specific rights 
and responsibilities are described in more detail in 37 CFR part 401 
and in particular, in the standard patent rights clause in 37 CFR Sec.  
401.14, which is incorporated by reference into awards. Recipients of 
DOC financial assistance awards are required to submit their 
disclosures and elections electronically using the Interagency Edison 
extramural invention reporting system (iEdison) at www.iedison.gov. 
Recipients may obtain a waiver of this electronic submission 
requirement by providing to the DOC compelling reasons for allowing the 
submission of paper copies of reports related to inventions.
    (b) Patent Notification Procedures. Pursuant to Executive Order 
12889, the DOC is required to notify the owner of any valid patent 
covering technology whenever the DOC or its financial assistance 
recipients, without making a patent search, knows (or has demonstrable 
reasonable grounds to know) that technology covered by a valid United 
States patent has been or will be used without a license from the 
owner. To ensure proper notification, if the recipient uses or has used 
patented technology under this award without a license or permission 
from the owner, the recipient will be required to notify the Grants 
Officer. This notice does not necessarily mean that the government 
authorizes and consents to any copyright or patent infringement 
occurring under the financial assistance award.
    (c) Data, Databases, and Software. The rights to any work produced 
or purchased under a DOC financial assistance award are determined by 
15 CFR Sec. Sec.  14.36, for State and Local Governments, or 24.34, for 
Institutions of Higher Education, Hospitals, Other Non-Profit, and 
Commercial Organizations, as applicable. Such works may include data, 
databases or software. The recipient owns any work produced or 
purchased under a DOC financial assistance award subject to DOC's right 
to obtain, reproduce, publish or otherwise use the work or authorize 
others to receive, reproduce, publish or otherwise use the data for 
Federal Government purposes.
    (d) Copyright. The recipient may copyright any work produced under 
a DOC financial assistance award subject to the DOC's royalty-free 
nonexclusive and irrevocable right to reproduce, publish or otherwise 
use the work, or authorize others to do so for Federal Government 
purposes. Works jointly authored by the DOC and recipient employees may 
be copyrighted but only the part authored by the recipient is protected 
because, under 17 U.S.C. Sec.  105, works produced by Government 
employees are not copyrightable in the United States. On occasion, the 
DOC may require the recipient to transfer to DOC its copyright in a 
particular work for government purposes or when the DOC is undertaking 
the primary dissemination of the work. Ownership of copyright by the 
Federal Government through assignment is permitted by 17 U.S.C. 105.
    22. Seat Belt Use. Pursuant to Executive Order 13043, recipients 
shall seek to encourage employees and contractors to enforce on-the-job 
seat belt policies and programs when operating recipient/company-owned, 
rented or personally owned vehicles.
    23. Research Involving Human Subjects. All proposed research 
involving human subjects must be conducted in accordance with 15 CFR 
part 27, ``Protection of Human Subject.'' No research involving human 
subjects is permitted under any DOC financial assistance award unless 
expressly authorized by the Grants Officer.
    24. Federal Employee Expenses. Federal agencies are generally 
barred from accepting funds from a recipient to pay transportation, 
travel, or other expenses for any Federal employee. Use of award funds 
(Federal or non-Federal) or the recipient's provision of in-kind goods 
or services for the purposes of transportation, travel, or any other 
expenses for any Federal employee, may raise appropriation augmentation 
issues. In addition, DOC policy prohibits the acceptance of gifts, 
including travel payments for Federal employees, from recipients or 
applicants regardless of the source.
    25. Minority Serving Institutions (MSIs) Initiative. Pursuant to 
Executive Orders 13555 (``White House Initiative on Educational 
Excellence for Hispanics''), 13270 (``Tribal Colleges and 
Universities''), and 13532 (``Promoting Excellence, Innovation, and 
Sustainability at Historically Black Colleges and Universities''), the 
DOC is strongly committed to broadening the participation of minority 
serving institutions (MSIs) in its financial assistance award programs. 
The DOC's goals include achieving full

[[Page 74641]]

participation of MSIs in order to advance the development of human 
potential, strengthen the Nation's capacity to provide high-quality 
education, and increase opportunities for MSIs to participate in and 
benefit from Federal financial assistance programs. The DOC encourages 
all applicants and recipients to include meaningful participation of 
MSIs. Institutions eligible to be considered MSIs are listed on the 
Department of Education's Web site.
    26. Access to Records. The DOC, the Inspector General of the DOC, 
the Comptroller General of the United States, or any of their duly 
authorized representatives, and, if appropriate, the State, shall have 
access to any pertinent books, documents, papers and records of the 
parties to a grant or cooperative agreement, whether written, printed, 
recorded, produced, or reproduced by any electronic, mechanical, 
magnetic or other process or medium, in order to make audits, 
inspections, excerpts, transcripts, or other examinations as authorized 
by law. An audit of an award may be conducted at any time.
    27. Research Misconduct. The DOC adopts, and applies to financial 
assistance awards for research, the Federal Policy on Research 
Misconduct (Federal Policy) issued by the Executive Office of the 
President's Office of Science and Technology Policy on December 6, 2000 
(65 FR 76260 (2000)). As provided for in the Federal Policy, research 
misconduct refers to the fabrication, falsification, or plagiarism in 
proposing, performing, or reviewing research, or in reporting research 
results. Research misconduct does not include honest errors or 
differences of opinion. Recipient organizations that conduct extramural 
research funded by DOC must foster an atmosphere conducive to the 
responsible conduct of sponsored research by safeguarding against and 
resolving allegations of research misconduct. Recipient organizations 
also have the primary responsibility to prevent, detect, and 
investigate allegations of research misconduct and, for this purpose, 
may rely on their internal policies and procedures, as appropriate, to 
do so. Federal award funds expended on an activity that is determined 
to be invalid or unreliable because of research misconduct may result 
in appropriate enforcement action under the award, up to and including 
award termination and possible suspension or debarment. The DOC 
requires that any allegation that contains sufficient information to 
proceed with an inquiry be submitted to the Grants Officer, who will 
also notify the OIG of such allegation. Once the recipient organization 
has investigated the allegation, it will submit its findings to the 
Grants Officer. The DOC may accept the recipient's findings or proceed 
with its own investigation. The Grants Officer shall inform the 
recipient of the DOC's final determination.
    28. Intergovernmental Personnel Act of 1970 (42 U.S.C. 4728-4763). 
Recipients must comply with this Act relating to prescribed standards 
for merit systems for programs funded under one of the 19 statutes or 
regulations specified in Appendix A of the Office of Personnel 
Management Standards for a Merit System of Personnel Administration (5 
CFR part 900, subpart F).
    29. Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970, as amended (42 U.S.C. 4601 et seq.) and the DOC's 
implementing regulations issued at 15 CFR part 11. These provide for 
fair and equitable treatment of persons displaced or whose property is 
acquired as a result of Federal or Federally-assisted programs. These 
requirements apply to all interests in real property acquired for 
project purposes regardless of Federal participation in purchases.
    30. Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4801 et 
seq.). This Act prohibits the use of lead-based paint in construction 
or rehabilitation of residential structures.
    31. Hatch Act (5 U.S.C. 1501-1508 and 7324-7328). This Act limits 
the political activities of employees or officers of State or local 
governments whose principal employment activities are funded in whole 
or in part with Federal funds.
    32. Labor standards for Federally-assisted construction 
subagreements (wage guarantees). Recipients must comply, as applicable, 
with the provisions of the Davis-Bacon Act (40 U.S.C. 276a to 276a-7); 
the Copeland Act (40 U.S.C. 276c and 18 U.S.C. 874); and the Contract 
Work Hours and Safety Standards Act (40 U.S.C. 327-333).
    33. Care and Use of Live Vertebrate Animals. Recipients must comply 
with the Laboratory Animal Welfare Act of 1966 (Pub. L. 89-544), as 
amended (7 U.S.C. 2131 et seq.) (animal acquisition, transport, care, 
handling, and use in projects) and implementing regulations, 9 CFR 
parts 1, 2, and 3; the Endangered Species Act (16 U.S.C. 1531 et seq.); 
Marine Mammal Protection Act (16 U.S.C. 1361 et seq.) (taking 
possession, transport, purchase, sale, export or import of wildlife and 
plants); the Nonindigenous Aquatic Nuisance Prevention and Control Act 
(16 U.S.C. 4701 et seq.) (ensure preventive measures are taken or that 
probable harm of using species is minimal if there is an escape or 
release); and all other applicable statutes pertaining to the care, 
handling, and treatment of warm blooded animals held for research, 
teaching, or other activities supported by Federal financial 
assistance. No research involving vertebrate animals is permitted under 
any DOC financial assistance award unless authorized by the Grants 
Officer.
    34. Publications, Videos, and Acknowledgment of Sponsorship. 
Publication of the results or findings in appropriate professional 
journals and production of videos or other media is encouraged as an 
important method of recording, reporting and otherwise disseminating 
information and expanding public access to federally-funded projects 
(e.g., scientific research). The recipient may be required to submit a 
copy of any publication materials, including but not limited to print, 
recorded or Internet materials to the funding agency. When releasing 
information related to a funded project the recipient must include a 
statement that the project or effort undertaken was or is sponsored by 
DOC. The recipient is also responsible for assuring that every 
publication of material based on, developed under or otherwise produced 
under a DOC award, except scientific articles or papers appearing in 
scientific, technical or professional journals, contains the following 
disclaimer or other disclaimer approved by the Grants Officer: ``This 
[report/video/etc.] was prepared by [recipient name] using Federal 
funds under award [number] from [name of operating unit], U.S. 
Department of Commerce. The statements, findings, conclusions, and 
recommendations are those of the author(s) and do not necessarily 
reflect the views of the [name of operating unit] or the U.S. 
Department of Commerce.''
    35. Homeland Security Presidential Directive--12. If the 
performance of a grant award requires recipient organization personnel 
to have routine access to Federally-controlled facilities and/or 
Federally-controlled information systems (for purpose of this term 
``routine access'' is defined as more than 180 days), such personnel 
must undergo the personal identity verification credential process. In 
the case of foreign nationals, the DOC will conduct a check with U.S. 
Citizenship and Immigration Services' (USCIS) Verification Division, a 
component of the Department of Homeland Security (DHS), to ensure the 
individual is in a lawful immigration status and that he or she is 
eligible for employment within the United States. Any items or services 
delivered under a financial assistance award shall comply

[[Page 74642]]

with the DOC personal identity verification procedures that implement 
Homeland Security Presidential Directive--12, ``Policy for a Common 
Identification Standard for Federal Employees and Contractors,'' FIPS 
PUB 201, and OMB Memorandum M-05-24. The recipient shall ensure that 
its subrecipients and contractors (at all tiers) performing work under 
this award comply with the requirements contained in this term. The 
Grants Officer may delay final payment under an award if the 
subrecipient or contractor fails to comply with the requirements listed 
in the term below. The recipient shall insert the following terms in 
all subawards and contracts when the subaward recipient or contractor 
is required to have routine physical access to a Federally-controlled 
facility or routine access to a Federally-controlled information 
system:
    (a) The subrecipient or contractor shall comply with DOC personal 
identity verification procedures identified in the subaward or contract 
that implement Homeland Security Presidential Directive 12 (HSPD-12), 
Office of Management and Budget (OMB) Guidance M-05-24, as amended, and 
Federal Information Processing Standards Publication (FIPS PUB) Number 
201, as amended, for all employees under this subaward or contract who 
require routine physical access to a Federally-controlled facility or 
routine access to a Federally-controlled information system.
    (b) The subrecipient or contractor shall account for all forms of 
Government-provided identification issued to the subrecipient or 
contractor employees in connection with performance under this subaward 
or contract. The subrecipient or contractor shall return such 
identification to the issuing agency at the earliest of any of the 
following, unless otherwise determined by DOC: (1) When no longer 
needed for subaward or contract performance; (2) upon completion of the 
subrecipient or contractor employee's employment; (3) upon completion 
of the subaward or contract.
    36. Compliance with Department of Commerce Bureau of Industry and 
Security Export Administration Regulations.
    (a) This clause applies to the extent that a financial assistance 
award involves access to export-controlled items.
    (b) In performing a financial assistance award, the recipient may 
gain access to items subject to export controls (export-controlled 
items) under the Export Administration Regulations (EAR). The recipient 
is responsible for compliance with all applicable laws and regulations 
regarding export-controlled items, including the EAR's deemed exports 
and reexport provisions. The recipient shall establish and maintain 
effective export compliance procedures at DOC and non-DOC facilities 
throughout performance of the financial assistance award. At a minimum, 
these export compliance procedures must include adequate controls 
relating to physical, verbal, visual and electronic access to export-
controlled items, including by foreign nationals.
    (c) Definitions:
    (1) Export-controlled items. Items (commodities, software or 
technology) that are subject to the EAR (15 CFR Sec. Sec.  730-774), 
implemented by the DOC's Bureau of Industry and Security. These are 
generally known as ``dual-use'' items, items with military and 
commercial application.
    (2) Deemed Export/Reexport. The EAR defines a deemed export as a 
release of export-controlled items (specifically, technology or source 
code) to a foreign national in the U.S. Such release is ``deemed'' to 
be an export to the home country of the foreign national. 15 CFR Sec.  
734.2(b)(2)(ii). A release may take the form of visual inspection, oral 
exchange of information, or the application abroad of knowledge or 
technical experience acquired in the U.S. If such a release occurs 
abroad, it is considered a deemed reexport to the foreign national's 
home country. Licenses from DOC may be required for deemed exports or 
reexports.
    (d) The recipient shall control access to all export-controlled 
items that it possesses or that comes into its possession in 
performance of a financial assistance award, to ensure that access to, 
or release of, such items are restricted, or licensed, as required by 
applicable Federal laws, Executive Orders, and/or regulations, 
including the EAR.
    (e) As applicable, recipient personnel and associates at DOC sites 
will be informed of any procedures to identify and protect export-
controlled items.
    (f) To the extent the recipient wishes to provide foreign nationals 
with access to export-controlled items, the recipient shall be 
responsible for obtaining any necessary licenses, including licenses 
required under the EAR for deemed exports or deemed reexports.
    (g) Nothing in the terms of this financial assistance award is 
intended to change, supersede, or waive the requirements of applicable 
Federal laws, Executive Orders or regulations.
    (h) Compliance with this term will not satisfy any legal 
obligations the recipient may have regarding items that may be subject 
to export controls administered by other agencies such as the 
Department of State, which has jurisdiction over exports of munitions 
items subject to the International Traffic in Arms Regulations (ITAR) 
(22 CFR Sec. Sec.  120-130), including releases of such items to 
foreign nationals.
    (i) The recipient shall include this term, including this 
paragraph, in all lower tier transactions (subawards, contracts, and 
subcontracts) under this financial assistance award that may involve 
access to export-controlled items.
    37. The Trafficking Victims Protection Act of 2000 (22 U.S.C. 
7104(g)), as amended, and the implementing regulations at 2 CFR part 
175. The Trafficking Victims Protection Act of 2000 authorizes 
termination of financial assistance provided to a private entity, 
without penalty to the Federal Government, if the recipient or 
subrecipient engages in certain activities related to trafficking in 
persons. The DOC incorporates the award term required by 2 CFR Sec.  
175.15(b) into all financial assistance awards. See https://www.gpo.gov/fdsys/pkg/CFR-2012-title2-vol1/pdf/CFR-2012-title2-vol1-sec175-15.pdf 
for the full award term.
    38. The Federal Funding Accountability and Transparency Act of 2006 
(Pub. L. 109-282; codified at 31 U.S.C. 6101 note) (FFATA).
    (a) The FFATA requires information on Federal awards (Federal 
financial assistance and expenditures) be made available to the public 
via a single, searchable Web site. This information is available at 
USASpending.gov. Recipients and subrecipients must include the 
following required data elements in their application:
    (1) Name of entity receiving award;
    (2) Award amount;
    (3) Transaction type, funding agency, Catalog of Federal Domestic 
Assistance Number, and descriptive award title;
    (4) Location of: entity, primary location of performance (City/
State/Congressional District/Country; and
    (5) Unique identifier of entity.
    (b) Reporting Subawards and Executive Compensation. Prime grant 
recipients awarded a new Federal grant greater than or equal to $25,000 
on or after October 1, 2010, other than those funded by the Recovery 
Act, are subject to FFATA subaward reporting requirements as outlined 
in 2 CFR part 170. The prime recipient is required to file a FFATA 
subaward report by the end of the month following the month in which 
the prime recipient awards any sub-grant greater than or equal to 
$25,000. See Public Law 109-282, as

[[Page 74643]]

amended by section 6202(a) of Public Law 110-252 (see 31 U.S.C. 6101 
note). The DOC incorporates the award term required by Appendix A of 2 
CFR part 170 into all financial assistance awards. See https://www.gpo.gov/fdsys/pkg/CFR-2011-title2-vol1/pdf/CFR-2011-title2-vol1-part170-appA.pdf for the full award term.
    (c) Central Contractor Registration (CCR) and Universal Identifier 
Requirements. Unless an exemption applies under 2 CFR Sec.  25.110, 
applicants for federal financial assistance awards must be registered 
in the Central Contractor Registration (CCR) prior to submitting an 
application for financial assistance, maintain an active CCR 
registration with current information at all times during which it has 
an active Federal award or an application under consideration by an 
agency, and provide its DUNS number in each application it submits to 
the agency. For this purpose, the DOC incorporates the award term 
required by Appendix A of 2 CFR part 25 into all financial assistance 
awards. See https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=d1bbde1c530112e7133a03bb635bf2fe&rgn=div9&view=text&node=2:1.1.1.3.3.3.1.14.1&idno=2 for the full award term.
    C. In limited circumstances (e.g., when required by statute), the 
DOC will issue a Federal Register notice, in addition to a notice on 
www.grants.gov, announcing the availability of Federal funds for each 
DOC competitive financial assistance program. Unless statute or 
regulation requires otherwise, such Federal Register notices will 
contain only the following program-specific information: Summary 
description of program; deadline date for receipt of applications; 
addresses for submission of applications; information contacts 
(including electronic access); the amount of funding available; 
statutory authority; the applicable Catalog of Federal Domestic 
Assistance (CFDA) number(s); eligibility requirements; cost-sharing or 
matching requirements; Intergovernmental Review requirements; 
evaluation criteria used by the merit reviewers; selection procedures, 
including funding priorities/selection factors/policy factors to be 
applied by the selecting official; and administrative and national 
policy requirements; and information about how to access the full 
program notice at www.grants.gov.
    D. The DOC follows the uniform format for an announcement of 
Federal Funding Opportunity (FFO) for discretionary grants and 
cooperative agreements established by OMB in a guidance published in 
the Federal Register (see 68 FR 37370 (June 23, 2003) and 68 FR 58146 
(October 8, 2003)). FFOs published by DOC are available at 
www.grants.gov. Applicants are strongly encouraged and in some cases 
required to apply through www.grants.gov. It can take up to two weeks 
to register with www.grants.gov if problems are encountered. 
Registration is required only once. Applicants should consider the time 
needed to register with www.grants.gov, and should begin the 
registration process well in advance of the application due date if 
they have never registered. Applicants should allow themselves adequate 
time to submit the proposal through www.grants.gov, as the deadline for 
submission generally cannot be extended and there is significant 
potential for human or computer error during the electronic submission 
process. After registering, it may take several days or longer from the 
initial log-on before a new Grants.gov system user can submit an 
application. Only authorized individual(s) will be able to submit the 
application, and the system may need time to process a submitted 
proposal. Applicants should save and print the proof of submission they 
receive from Grants.gov, which may take up to two days to receive.

Executive Order 12866

    This notice has been determined to be ``not significant'' for 
purposes of Executive Order 12866, ``Regulatory Planning and Review.''

Administrative Procedure Act and Regulatory Flexibility Act

    Because notice and comment are not required under 5 U.S.C. 553, or 
any other law, for this notice relating to public property, loans, 
grants benefits or contracts (5 U.S.C. 553(a)), a Regulatory 
Flexibility Analysis is not required and has not been prepared for this 
notice.

Executive Order 13132 (Federalism)

    It has been determined that this notice does not contain policies 
with Federalism implications as that term is defined in Executive Order 
13132.

Paperwork Reduction Act

    This notice does not impose any new reporting or recordkeeping 
requirements under the Paperwork Reduction Act. Notwithstanding any 
other provisions of the law, no person is required to respond to, nor 
shall any person be subject to a penalty for failure to comply with a 
collection-of-information, subject to the requirements of the Paperwork 
Reduction Act (PRA), 44 U.S.C. 3501 et seq., unless that collection of 
information displays a currently valid OMB control number. The use of 
the following family of forms has been approved by OMB under the 
following control numbers: (1) SF-424 Family: 0348-0041, 0348-0044, 
4040-0003, and 4040-0004; (2) SF-424 Research and Related Family: 4040-
0001; SF-424 Individual Family: 4040-0005; (3) SF-424 Mandatory Family: 
4040-0002; and (4) SF-424 Short Organizational Family: 4040-0003. The 
use of Form SF-LLL is approved by OMB under the control numbers 0348-
0046.

Catalog of Federal Domestic Assistance

    This notice affects all of the grant and cooperative agreement 
programs funded by the DOC. The Catalog of Federal Domestic Assistance 
can be accessed on the Internet at: https://www.cfda.gov.

List of Subjects

    Accounting, Administrative practice and procedures, Grants 
administration, Grant programs--economic development, Grant programs--
oceans, atmosphere and fisheries management, Grant programs--minority 
businesses, Grant programs--technology, Grant programs--
telecommunications, Grant programs--international, Reporting and 
recordkeeping requirements.

    Dated: December 4, 2012.
Barry E. Berkowitz,
Senior Procurement Executive and Director of Acquisition Management.
[FR Doc. 2012-30228 Filed 12-14-12; 8:45 am]
BILLING CODE P