National Policy Requirements: General Award Terms and Conditions, 51223-51229 [2020-16410]
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Federal Register / Vol. 85, No. 161 / Wednesday, August 19, 2020 / Final Rule
3. Property requirements.
a. Federally owned property. If the
subrecipient will be accountable for federally
owned property, you must include the
property management system, use, and
disposition requirements described in
Sections C and F of SUB Article V that are
applicable to federally owned property.
b. Intangible property. You must include
the applicable intangible property
requirements described in Section G of SUB
Article V.
4. Reporting requirements. You must
include requirements for reporting that you
need in order to meet your responsibilities
under this award for reporting to us.
5. Other administrative requirements.
a. Integrity-related information. You must
include the substance of the provision in
Section C of OAR Article I in any subaward
you make under this award. The provision
must require the subrecipient’s disclosure of
any evidence directly to the Inspector
General, DoD.
b. Records retention and access.
i. You must include the requirements for
records retention and access in paragraph A.3
and Sections B and F of OAR Article II, as
applicable, if the subaward is to an
institution of higher education, nonprofit
organization, State, local government, or
Indian tribe. You may not impose any other
records retention or access requirements on
the subrecipient.
ii. You must include the corresponding
requirements of 32 CFR 34.42 if the subaward
is to a for-profit entity.
c. Remedies and termination. You must
include:
i. The requirements concerning remedies
and termination that are described in
paragraphs D.1 and 2 of SUB Article VIII;
ii. Provisions addressing any hearing and
appeal rights the subrecipient has, as
described in Section E of SUB Article VIII;
and
iii. Terms and conditions addressing
adjustment of the amount of the subaward if
it is terminated before the subrecipient
accomplishes all of the specified outcomes.
d. Continuing responsibilities. You must
include requirements concerning continuing
responsibilities for audits and records
retention and access that are described in
paragraphs B.1 and 3 of OAR Article VII.
e. Collection of amounts due. You should
consider including requirements concerning
collection of amounts due, as described in
Section F of SUB Article VIII.
Section E. National policy requirements for
fixed-amount subawards. You must include
in the terms and conditions of each fixedamount subaward the national policy
requirements that SUB Article IX of this
award specifies, as applicable.
Section F. Subrecipient monitoring and
other post-award administration. You must
carry out the subrecipient monitoring and
post-award administration actions specified
in SUB Article X, as applicable.
Section G. Fixed-amount subawards at
lower tiers.
1. Authority.
a. If Section B of this article authorizes you
to use a fixed-amount type of subaward
without our prior approval in some
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situations, a cost-type subaward that you
make may authorize the subrecipient to use
fixed-amount subawards at the next lower
tier in those same situations without our
prior approval.
b. If you wish to allow a subrecipient of a
cost-type subaward to use fixed-amount
subawards at the next tier in other situations
(i.e., situations in which this article requires
you to obtain our prior approval before using
a fixed-amount type of subaward), your
subaward terms and conditions must require
the subrecipient to submit a request through
you to obtain our prior approval for use of
that type of subaward.
2. Subaward requirements. If your
subrecipient is authorized to use lower-tier
fixed-amount subawards, as described in
paragraphs 1.a and b of this section, your
subaward’s terms and conditions must:
a. Require the subrecipient, before it makes
any lower-tier fixed-amount subaward, to:
i. Ensure that the lower-tier transaction is
a subaward, rather than a procurement, by
making the determination that SUB Article I
of this award requires you to make for your
subawards.
ii. Conduct the pre-award risk assessment
of its intended subrecipient that Section B of
SUB Article II of this award requires you to
make for your subawards.
b. Include the requirements specified in
Sections A through F of this article.
Dated: July 24, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 2020–16414 Filed 8–18–20; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Office of the Secretary
2 CFR Part 1122
[DOD–2016–OS–0053]
RIN 0790–AJ48
National Policy Requirements: General
Award Terms and Conditions
Office of the Secretary,
Department of Defense (DoD).
ACTION: Final rule.
AGENCY:
This rule is the fourth of a
sequence of six final rules published in
this issue of the Federal Register. This
final rule adds a new Department of
Defense Grant and Agreement
Regulations (DoDGARs) part to establish
a consistent way for DoD Components to
organize the portion of their general
terms and conditions covering national
policy requirements, such as
nondiscrimination, environmental
protection, and live organisms. It also
provides standard wording of terms and
conditions for national policy
requirements that apply generally to
DoD programs and awards.
SUMMARY:
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DATES:
51223
This rule is effective October 19,
2020.
FOR FURTHER INFORMATION CONTACT:
Barbara Orlando, Basic Research Office,
telephone 571–372–6413.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of the Final Rule
As explained in the Supplementary
Information section of the first of the
sequence of final rules in this section of
this issue of the Federal Register, these
six rules collectively make a major
portion of needed updates to the
Department of Defense Grant and
Agreement Regulations (DoDGARs). The
purpose of this rule, the fourth of the
sequence, is to maximize uniformity of
general terms and conditions addressing
national policy requirements within
DoD grants and cooperative agreements.
As described in the second of the six
final rules, 2 CFR part 1120 of the
DoDGARs establishes a standard award
format for DoD Components’ grants and
cooperative agreements. National policy
requirements are one of the four sub
elements of an award’s general terms
and conditions. This added part—-2
CFR part 1122—-provides (1) a standard
organization for the general terms and
conditions addressing national policy
requirements, and (2) standard wording
of terms and conditions for the national
policy requirements that commonly
apply to DoD Components’ grants and
cooperative agreements.
It should be noted that 2 CFR part
1122 applies to grants and cooperative
agreements awarded to all types of
recipient entities. That scope
distinguishes part 1122 from the other
final rules in 2 CFR parts 1126 through
1138 published in the Federal Register,
which address requirements only for
Department of Defense (DoD) grants and
cooperative agreements awarded to
institutions of higher education,
nonprofit organizations, States, local
governments, and Indian tribes.
B. Revisions Implemented by This Rule
This rule supersedes the Appendix of
32 CFR part 21, moving it to 2 CFR part
1122. It provides an updated version of
the National Policies that apply to all
DoD financial assistance awards.
C. Legal Authorities for the Regulatory
Action
There are two statutory authorities for
this final rule:
• 10 U.S.C. 113, which establishes the
Secretary of Defense as the head of the
Department of Defense; and
• 5 U.S.C. 301, which authorizes the
head of an Executive department to
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prescribe regulations for the governance
of that department and the performance
of its business.
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II. Regulatory History
In December 2014 (79 FR 76047), DoD
established an interim implementation
of the final guidance, ‘‘Uniform
Administrative Requirements, Cost
Principles, and Audit Requirements for
Federal Awards,’’ published by the
Office of Management and Budget
(OMB) on December 26, 2013, in 2 CFR
part 200 (Uniform Guidance—available
at 78 FR 78589). DoD then published a
Notice of Proposed Rulemaking
(November 7, 2016 (81 FR 78376)) that
proposed to part title 2 part 1122 to
provide standard wording of terms and
conditions for national policy
requirements that apply generally to
DoD programs and awards.
III. Comments and Responses
DoD received one public comment on
the Notice of Proposed Rulemaking
(NPRM) for 2 CFR part 1122, published
on November 7, 2016. That comment
was from a nonprofit organization
representing groundwater professionals.
Comment: The commenter pointed
out that paragraph A.4.f of National
Policy Article II (appendix B to 2 CFR
part 1122), Environmental national
policy requirements addressed only
underground sources of drinking water
that are designated as the sole or
principal drinking water source (i.e., a
‘‘sole-source aquifer’’), thereby
understating the need for protection of
groundwater sources of drinking water
and not fully reflecting the provisions of
the Safe Drinking Water Act (SDWA).
The commenter pointed out that the
SDWA (1) also has provisions followed
by States and public water systems to
designate ‘‘wellhead protection areas’’
around and supplying groundwater to
public water system wells (42 U.S.C.
300h–7, also cited as SDWA Section
1428); and (2) requires States and
communities to delineate the areas to be
protected from contamination around
public water supply wells and to have
a program to manage potential sources
of contamination to minimize their
threat to underground drinking water
sources supplying communities’ wells.
Response: DOD agreed with the
comment and amended the requirement
by adding the wording ‘‘. . . and in
wellhead protection areas . . .’’ to the
specified paragraph after the words
‘‘Underground sources of drinking water
in areas that have an aquifer that is the
sole or principal drinking water source
. . .’’
DoD made one other substantive
change to this part as follows:
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In National Policy (NP) Article IV, A.7
(appendix D to 2 CFR part 1122), we
added clarifying language to indicate
that ‘‘Fly America’’ requirements apply
to transport of persons, as well as
personal effects. This change was
deemed necessary because the language
of the NPRM dealt only with air travel
of property. We also added language to
refer to both the statute and its
implementing regulations. A
comparable change was made in the
third of the final rules published in
today’s Federal Register. The change
was made in Appendix C to 2 CFR part
1132, specifically in Procurement
(PROC) Article III, ‘‘Contract provisions
for recipient procurements,’’ Section
B.10.
In addition, we made an editorial
change for clarity and consistency with
other of the final rules published in
today’s Federal Register. In several
places, where the word ‘‘agreement’’
was used generically (rather than in the
term ‘‘cooperative agreement’’), we
changed it to ‘‘award.’’
IV. Regulatory Analyses
We developed this rule after
considering numerous statutes and
Executive Orders (E.O.s) related to
rulemaking. Below we summarize our
analyses based on these statutes or
E.O.s.
A. Regulatory Planning and Review
Executive Orders 12866 (Regulatory
Planning and Review) and 13563
(Improving Regulation and Regulatory
Review) direct agencies to assess the
costs and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This rule
has been designated as a ‘‘not
significant’’ regulatory action, and not
economically significant, under section
3(f) of Executive Order 12866.
Accordingly, the rule has not been
reviewed by the Office of Management
and Budget (OMB) under the
requirements of these Executive Orders.
Executive Order 13771 (Reducing
Regulation and Controlling Regulatory
Costs) directs agencies to reduce
regulation and control regulatory costs
and provides that ‘‘for every one new
regulation issued, at least two prior
regulations be identified for elimination,
and that the cost of planned regulations
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be prudently managed and controlled
through a budgeting process.’’ This rule
is not subject to the requirements of this
Executive Order because it is not
significant under Executive Order
12866.
Costs
DoD has found that this rule will not
impose costs on the public, as there are
not any costs associated with
standardizing general terms and
conditions addressing national policy
requirements.
Benefits
DoD determined that providing a
central location and standard language
within the DoDGARs for the terms and
conditions of the most commonly
applicable national policy requirements
will help maximize long-term benefits
in relation to costs and burdens for
recipients of DoD grants and cooperative
agreements.
The principal benefits of this
regulatory action are that recipients and
others who use the content of awards
from multiple DoD Component
awarding offices should:
• Be able to find what they need
within different offices’ awards more
quickly and easily due to the standard
organization for general terms and
conditions covering national policy
requirements.
• Spend less time evaluating terms
and conditions, because the standard
wording for commonly applicable
national policy requirements will
obviate the need to interpret different
wording various offices’ awards include
for the same requirement.
Alternatives
1. No action—If no action was taken
DoD would not be compliance with
OMB requirements to move all financial
assistance regulations to 2 CFR.
2. Next Best alternative—The next
best alternative would be to add
additional terms, beyond those found in
the DoDGARs, which give background
explanations for the terms that are in the
DoDGARs. While the new terms may
add additional context to the terms in
the DoDGARs, it would be more
beneficial to expand the definition of
the term than to direct the public to
additional terms.
B. Congressional Review Act (5 U.S.C.
801, et seq.)
Under the Congressional Review Act,
a major rule may not take effect until at
least 60 days after submission to
Congress of a report regarding the rule.
A major rule is one that would have an
annual effect on the economy of $100
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F. Collection of Information
million or more or have certain other
impacts. This rule is not a major rule
under the Congressional Review Act.
C. Impact on Small Entities
The Regulatory Flexibility Act of
1980, 5 U.S.C. 601–612, as amended,
requires Federal agencies to consider
the potential impact of regulations on
small entities during rulemaking. The
term ‘‘small entities’’ comprises small
businesses, not-for-profit organizations
that are independently owned and
operated and are not dominant in their
fields, and governmental jurisdictions
with populations of less than 50,000.
This rule will not impose any impacts
on any entities. This means that there
will be no economic impacts on any
entities. Therefore, the Department of
Defense under 5 U.S.C. 601 et seq.
certifies that this rule will not have a
significant economic impact on a
substantial number of small entities.
D. Assistance for Small Entities
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E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1531–1538, requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or
more in any 1 year. Although this rule
will not result in such an expenditure,
we do discuss the effects of this rule
elsewhere in this preamble.
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Federalism
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a
proposed rule (and subsequent final
rule) that imposes substantial direct
requirement costs on State and local
governments, preempts State law, or
otherwise has Federalism implications.
This proposed rule does not have
federalism implications that warrant the
preparation of a federalism assessment
in accordance with Executive Order
13132.
List of Subjects in 2 CFR Part 1122
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104–
121, we want to assist small entities in
understanding this rule so that they can
better evaluate its effects on them and
participate in the rulemaking. If the rule
would affect your small business,
organization, or governmental
jurisdiction and you have questions
concerning its provisions or options for
compliance, please contact the person
in the FOR FURTHER INFORMATION
CONTACT section of this rule.
Small businesses may send comments
on the actions of Federal employees
who enforce, or otherwise determine
compliance with, Federal regulations to
the Small Business and Agriculture
Regulatory Enforcement Ombudsman
and the Regional Small Business
Regulatory Fairness Boards. The
Ombudsman evaluates these actions
annually and rates each agency’s
responsiveness to small business.
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The Paperwork Reduction Act (PRA)
(44 U.S.C. 3501–3520) applies to
collections of information using
identical questions posed to, or
reporting or recordkeeping requirements
imposed on, ten or more members of the
public. This rule does not call for a new
collection of information under the
PRA.
Business and industry, Colleges and
universities, Cooperative agreements,
Grants administration, Hospitals,
Human research subjects, Indians,
Nonprofit organizations, Research
misconduct, Small business, State and
local governments.
■ Accordingly, 2 CFR chapter XI is
amended by adding part 1122 to read as
follows:
PART 1122—NATIONAL POLICY
REQUIREMENTS: GENERAL AWARD
TERMS AND CONDITIONS
Sec.
A—General
1122.1 Purpose of this part.
1122.2 Definition of ‘‘national policy
requirement.’’
1122.3 Definitions of other terms as they are
used in this part.
Subpart B—Terms and Conditions
1122.100 Purpose of this subpart.
1122.105 Where to find the terms and
conditions.
1122.110 Organization of each article of
national policy requirements.
1122.115 Cross-cutting national policy
requirements.
1122.120 Other national policy
requirements.
Appendix A Terms and condition for NP
Article I, ‘‘Nondiscrimination National
Policy Requirements.’’
Appendix B Terms and condition for NP
Article II, ‘‘Environmental National
Policy Requirements.’’
Appendix C Terms and conditions for NP
Article III, ‘‘National Policy
Requirements Concerning Live
Organisms.’’
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Appendix D Terms and conditions for NP
Article IV, ‘‘Other National Policy
Requirements.’’
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
Subpart A—General
§ 1122.1
Purpose of this part.
(a) This part specifies a standard
format and standard wording of general
terms and conditions for Subdivision B
of the general terms and conditions of
DoD grants and cooperative agreements,
which concerns national policy
requirements.
(b) It thereby implements:
(1) Office of Management and Budget
(OMB) guidance in 2 CFR 200.210(b)(ii)
and 200.300, as those paragraphs of 2
CFR part 200 relate to national policy
requirements for general terms and
conditions of DoD grants and
cooperative agreements to institutions of
higher education and other nonprofit
organizations, States, local governments,
and Indian tribes.
(2) National policy requirements, to
the extent they apply, for general terms
and conditions of DoD awards to forprofit firms, foreign organizations, and
foreign public entities.
§ 1122.2 Definition of ‘‘national policy
requirement.’’
For the purposes of this chapter, a
national policy requirement is a
requirement:
(a) That is prescribed by a statute,
Executive order, policy guidance issued
by the Executive Office of the President,
or regulation that specifically refers to
grants, cooperative agreements, or
financial assistance in general;
(b) With which a recipient of a grant
or cooperative agreement must comply
during the period of performance; and
(c) That is outside subject matter areas
covered by administrative requirements
in subchapters D or E of this chapter.
§ 1122.3 Definition of other terms as they
are used in this part.
Because the meaning of some terms
used in this part derive from their
definitions in the statutes, Executive
orders, or other sources of national
policy requirements that this part
implements, the meanings of those
terms may vary from their meanings in
other parts of the DoD Grant and
Agreement Regulations. For example,
some statutes define ‘‘State’’ in ways
that differ from each other and from the
definition provided in 2 CFR part B. In
each case, the definition in the source
of the pertinent national policy
requirement takes precedence over the
definition in 2 CFR part B for the
purposes of complying with that
requirement.
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Subpart B—Terms and Conditions
§ 1122.100
Purpose of this subpart.
This subpart provides:
(a) Direction to DoD Components on
how to construct the four articles of
national policy requirements for
inclusion in the general terms and
conditions of grants and cooperative
agreements.
In . . .
Appendix
Appendix
Appendix
Appendix
A
B
C
D
............................
............................
............................
............................
Non-discrimination national policy requirements .........................................
Environmental national policy requirements ................................................
National policy requirements concerning live organisms ............................
Other national policy requirements ..............................................................
I.
II.
III.
IV.
§ 1122.115 Cross-cutting national policy
requirements.
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(a) Appendices A through D of this
part provide standard wording of terms
That would appear in an award within NP Article . . .
Each of NP Articles I through IV
includes two sections.
(a) Section A of each article includes
national policy requirements that are
cross-cutting in that their applicability
extends to many or all DoD awards.
Appendices A through D to this part
provide standard wording for each of
those requirements.
(b) Section B of each article is the
location in the award for programspecific national policy requirements.
Section B is reserved in the standard
wording of the articles provided in
appendices A through D to this part.
(a) General requirement to include
applicable cross-cutting requirements. A
DoD Component’s general terms and
conditions must include the standard
wording provided in appendices A
through D to this part for each national
policy requirement addressed in Section
A of NP Articles I, II, III, and IV,
respectively, that may apply either to:
(1) A recipient of an award using
those general terms and conditions; or
(2) A subrecipient of a subaward
under an award using those general
terms and conditions.
(b) Authority to reserve or omit
inapplicable paragraphs. A DoD
Component may reserve or omit any
paragraph appendices A through D to
this part provide for Section A of NP
Articles I, II, III, and IV of its general
terms and conditions if it determines
that the national policy requirement
addressed in that paragraph will not
apply to any awards using those terms
and conditions nor to any subawards
under them.
(c) Authority to use alternate wording.
(1) A DoD Component may use different
wording for a national policy
requirement than is provided in
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§ 1122.105 Where to find the terms and
conditions.
and conditions for the four articles of
national policy requirements. The
articles address the rights and
responsibilities of the Government and
the recipient related to those national
policy requirements.
(b) The following table shows which
national policy terms and conditions
may be found in each appendix to this
part:
You will find terms and conditions specifying recipients’ rights and responsibilities related to . . .
§ 1122.110 Organization of each article of
national policy requirements.
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(b) Standard wording for national
policy requirements that are more
commonly applicable to DoD
Components’ grants and cooperative
agreements.
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appendices A through D to this part if
it is authorized or required to do so by
a statute or a regulation published in the
Code of Federal Regulations after
opportunity for public comment.
(2) A DoD Component in that case:
(i) Must include the wording required
by the statute or regulation in Section B
of the appropriate article. This will help
a recipient recognize the wording as a
variation of the usual DoD wording for
the requirement.
(ii) May either reserve the paragraph
of Section A of the article in which that
national policy requirement otherwise
would appear or insert in that paragraph
wording to refer the recipient to the
paragraph in Section B of the article in
which the requirement does appear.
§ 1122.120 Other national policy
requirements.
If a DoD Component determines that
awards using its general terms and
conditions, or subawards under them,
are subject to a national policy
requirement that is not addressed in the
standard wording appendices A through
D to this part provide for cross-cutting
requirements, the DoD Component must
include the requirement in its general
terms and conditions. It should add the
requirement in Section B of NP Article
I, II, III, or IV, as most appropriate to the
subject matter of the requirement.
Appendix A to Part 1122—Terms and
Conditions for NP Article I,
‘‘Nondiscrimination National Policy
Requirements’’
A DoD Component must use the following
wording for NP Article I of its general terms
and conditions in accordance with the
provisions of Subpart B of this part.
NP Article I. Nondiscrimination national
policy requirements. (December 2014)
Section A. Cross-cutting nondiscrimination
requirements. By signing this award or
accepting funds under this award, you assure
that you will comply with applicable
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provisions of the national policies
prohibiting discrimination:
1. On the basis of race, color, or national
origin, in Title VI of the Civil Rights Act of
1964 (42 U.S.C. 2000d et seq.), as
implemented by Department of Defense
(DoD) regulations at 32 CFR part 195.
2. On the basis of gender, blindness, or
visual impairment, in Title IX of the
Education Amendments of 1972 (20 U.S.C.
1681 et seq.), as implemented by DoD
regulations at 32 CFR part 196.
3. On the basis of age, in the Age
Discrimination Act of 1975 (42 U.S.C. 6101
et seq.), as implemented by Department of
Health and Human Services regulations at 45
CFR part 90.
4. On the basis of disability, in the
Rehabilitation Act of 1973 (29 U.S.C. 794), as
implemented by Department of Justice
regulations at 28 CFR part 41 and DoD
regulations at 32 CFR part 56.
5. On the basis of disability in the
Architectural Barriers Act of 1968 (42 U.S.C.
4151 et seq.) related to physically
handicapped persons’ ready access to, and
use of, buildings and facilities for which
Federal funds are used in design,
construction, or alteration.
Section B. [Reserved]
Appendix B to Part 1122—Terms and
Conditions for NP Article II,
‘‘Environmental National Policy
Requirements’’
A DoD Component must use the following
wording for NP Article II of its general terms
and conditions in accordance with the
provisions of Subpart B of this part.
NP Article II. Environmental national policy
requirements. (December 2014)
Section A. Cross-cutting environmental
requirements. You must:
1. You must comply with all applicable
Federal environmental laws and regulations.
The laws and regulations identified in this
section are not intended to be a complete list.
2. Comply with applicable provisions of
the Clean Air Act (42 U.S.C. 7401, et seq.)
and Clean Water Act (33 U.S.C. 1251, et seq.).
3. Comply with applicable provisions of
the Lead-Based Paint Poisoning Prevention
Act (42 U.S.C. 4821–4846), as implemented
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by the Department of Housing and Urban
Development at 24 CFR part 35. The
requirements concern lead-based paint in
buildings owned by the Federal Government
or housing receiving Federal assistance.
4. Immediately identify to us, as the
Federal awarding agency, any potential
impact that you find this award may have on:
a. The quality of the ‘‘human
environment’’, as defined in 40 CFR 1508.14,
including wetlands; and provide any help we
may need to comply with the National
Environmental Policy Act (NEPA, at 42
U.S.C. 4321 et seq.), the regulations at 40 CFR
1500–1508, and E.O. 12114, if applicable;
and assist us to prepare Environmental
Impact Statements or other environmental
documentation. In such cases, you may take
no action that will have an environmental
impact (e.g., physical disturbance of a site
such as breaking of ground) or limit the
choice of reasonable alternatives to the
proposed action until we provide written
notification of Federal compliance with
NEPA or E.O. 12114.
b. Flood-prone areas and provide any help
we may need to comply with the National
Flood Insurance Act of 1968, as amended by
the Flood Disaster Protection Act of 1973 (42
U.S.C. 4001 et seq.), which require flood
insurance, when available, for federally
assisted construction or acquisition in floodprone areas.
c. A land or water use or natural resource
of a coastal zone that is part of a federally
approved State coastal zone management
plan and provide any help we may need to
comply with the Coastal Zone Management
Act of 1972 (16 U.S.C. 1451, et seq.)
including preparation of a Federal agency
Coastal Consistency Determination.
d. Coastal barriers along the Atlantic and
Gulf coasts and Great Lakes’ shores and
provide help we may need to comply with
the Coastal Barrier Resources Act (16 U.S.C.
3501 et seq.), concerning preservation of
barrier resources.
e. Any existing or proposed component of
the National Wild and Scenic Rivers system
and provide any help we may need to
comply with the Wild and Scenic Rivers Act
of 1968 (16 U.S.C. 1271 et seq.).
f. Underground sources of drinking water
in areas that have an aquifer that is the sole
or principal drinking water source and in
wellhead protection areas, and provide any
help we may need to comply with the Safe
Drinking Water Act (42 U.S.C. 300f et seq.).
5. You must comply fully with the
Endangered Species Act of 1973, as amended
(ESA, at 16 U.S.C. 1531 et seq.), and
implementing regulations of the Departments
of the Interior (50 CFR parts 10–24) and
Commerce (50 CFR parts 217–227). You also
must provide any help we may need in
complying with the consultation
requirements of ESA section 7 (16 U.S.C.
1536) applicable to Federal agencies or any
regulatory authorization we may need based
on the award of this grant. This is not in lieu
of responsibilities you have to comply with
provisions of the Act that apply directly to
you as a U.S. entity, independent of receiving
this award.
6. You must fully comply with the Marine
Mammal Protection Act of 1972, as amended
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(MMPA, at 16 U.S.C. 1361 et seq.) and
provide any assistance we may need in
obtaining any required MMPA permit based
on an award of this grant.
Section B. [Reserved]
Appendix C to Part 1122—Terms and
Conditions for NP Article III, ‘‘National
Policy Requirements Concerning Live
Organisms’’
A DoD Component must use the following
wording for NP Article III of its general terms
and conditions in accordance with the
provisions of Subpart B of this part.
NP Article III. National policy requirements
concerning live organisms. (December 2014)
Section A. Cross-cutting requirements
concerning live organisms.
1. Human subjects.
a. You must protect the rights and welfare
of individuals who participate as human
subjects in research under this award and
comply with the requirements at 32 CFR part
219, DoD Instruction (DoDI) 3216.02, 10
U.S.C. 980, and when applicable, Food and
Drug Administration (FDA) regulations.
b. You must not begin performance of
research involving human subjects, also
known as human subjects research (HSR),
that is covered under 32 CFR part 219, or that
meets exemption criteria under 32 CFR
219.101(b), until you receive a formal
notification of approval from a DoD Human
Research Protection Official (HRPO).
Approval to perform HSR under this award
is received after the HRPO has performed a
review of your documentation of planned
HSR activities and has officially furnished a
concurrence with your determination as
presented in the documentation.
c. In order for the HRPO to accomplish this
concurrence review, you must provide
sufficient documentation to enable his or her
assessment as follows:
i. If the HSR meets an exemption criterion
under 32 CFR 219.101(b), the documentation
must include a citation of the exemption
category under 32 CFR 219.101(b) and a
rationale statement.
ii. If your activity is determined as ‘‘nonexempt research involving human subjects’’,
the documentation must include:
(A) Assurance of Compliance (i.e.,
Department of Health and Human Services
Office for Human Research Protections
(OHRP) Federalwide Assurance (FWA))
appropriate for the scope of work or program
plan; and
(B) Institutional Review Board (IRB)
approval, as well as all documentation
reviewed by the IRB to make their
determination.
d. The HRPO retains final judgment on
what activities constitute HSR, whether an
exempt category applies, whether the risk
determination is appropriate, and whether
the planned HSR activities comply with the
requirements in paragraph 1.a of this section.
e. You must notify the HRPO immediately
of any suspensions or terminations of the
Assurance of Compliance.
f. DoD staff, consultants, and advisory
groups may independently review and
inspect your research and research
procedures involving human subjects and,
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51227
based on such findings, DoD may prohibit
research that presents unacceptable hazards
or otherwise fails to comply with DoD
requirements.
g. Definitions for terms used in paragraph
1 of this article are found in DoDI 3216.02.
2. Animals.
a. Prior to initiating any animal work under
the award, you must:
i. Register your research, development,
test, and evaluation or training facility with
the Secretary of Agriculture in accordance
with 7 U.S.C. 2136 and 9 CFR 2.30, unless
otherwise exempt from this requirement by
meeting the conditions in 7 U.S.C. 2136 and
9 CFR parts 1–4 for the duration of the
activity.
ii. Have your proposed animal use
approved in accordance with Department of
Defense Instruction (DoDI) 3216.01, Use of
Animals in DoD Programs by a DoD
Component Headquarters Oversight Office.
iii. Furnish evidence of such registration
and approval to the grants officer.
b. You must make the animals on which
the research is being conducted, and all
premises, facilities, vehicles, equipment, and
records that support animal care and use
available during business hours and at other
times mutually agreeable to you, the United
States Department of Agriculture Office of
Animal and Plant Health Inspection Service
(USDA/APHIS) representative, personnel
representing the DoD component oversight
offices, as well as the grants officer, to
ascertain that you are compliant with 7
U.S.C. 2131 et seq., 9 CFR parts 1–4, and
DoDI 3216.01.
c. Your care and use of animals must
conform with the pertinent laws of the
United States, regulations of the Department
of Agriculture, and regulations, policies, and
procedures of the Department of Defense (see
7 U.S.C. 2131 et seq., 9 CFR parts 1–4, and
DoDI 3216.01).
d. You must acquire animals in accordance
with DoDI 3216.01.
3. Use of Remedies.
Failure to comply with the applicable
requirements in paragraphs 1–2 of this
section may result in the DoD Component’s
use of remedies, e.g., wholly or partially
terminating or suspending the award,
temporarily withholding payment under the
award pending correction of the deficiency,
or disallowing all or part of the cost of the
activity or action (including the federal share
and any required cost sharing or matching)
that is not in compliance. See OAR Article
III.
Section B. [Reserved]
Appendix D to Part 1122—Terms and
Conditions for NP Article IV, ‘‘Other
National Policy Requirements’’
A DoD Component must use the following
wording for NP Article IV of its general terms
and conditions in accordance with the
provisions of Subpart B of this part.
NP Article IV. Other National Policy
Requirements. (December 2014)
Section A. Cross-cutting requirements.
1. Debarment and suspension. You must
comply with requirements regarding
debarment and suspension in Subpart C of 2
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CFR part 180, as adopted by DoD at 2 CFR
part 1125. This includes requirements
concerning your principals under this award,
as well as requirements concerning your
procurement transactions and subawards that
are implemented in PROC Articles I through
III and SUB Article II.
2. Drug-free workplace. You must comply
with drug-free workplace requirements in
Subpart B of 2 CFR part 26, which is the DoD
implementation of 41 U.S.C. chapter 81,
‘‘Drug-Free Workplace.’’
3. Lobbying.
a. You must comply with the restrictions
on lobbying in 31 U.S.C. 1352, as
implemented by DoD at 32 CFR part 28, and
submit all disclosures required by that statute
and regulation.
b. You must comply with the prohibition
in 18 U.S.C. 1913 on the use of Federal
funds, absent express Congressional
authorization, to pay directly or indirectly for
any service, advertisement or other written
matter, telephone communication, or other
device intended to influence at any time a
Member of Congress or official of any
government concerning any legislation, law,
policy, appropriation, or ratification.
c. If you are a nonprofit organization
described in section 501(c)(4) of title 26,
United States Code (the Internal Revenue
Code of 1968), you may not engage in
lobbying activities as defined in the Lobbying
Disclosure Act of 1995 (2 U.S.C., chapter 26).
If we determine that you have engaged in
lobbying activities, we will cease all
payments to you under this and other awards
and terminate the awards unilaterally for
material failure to comply with the award
terms and conditions.
4. Officials not to benefit. You must
comply with the requirement that no member
of Congress shall be admitted to any share or
part of this award, or to any benefit arising
from it, in accordance with 41 U.S.C. 6306.
5. Hatch Act. If applicable, you must
comply with the provisions of the Hatch Act
(5 U.S.C. 1501–1508) concerning political
activities of certain State and local
government employees, as implemented by
the Office of Personnel Management at 5 CFR
part 151, which limits political activity of
employees or officers of State or local
governments whose employment is
connected to an activity financed in whole or
part with Federal funds.
6. Native American graves protection and
repatriation. If you control or possess Native
American remains and associated funerary
objects, you must comply with the
requirements of 43 CFR part 10, the
Department of the Interior implementation of
the Native American Graves Protection and
Repatriation Act of 1990 (25 U.S.C., chapter
32).
7. Fly America Act. You must comply with
the International Air Transportation Fair
Competitive Practices Act of 1974 (49 U.S.C.
40118), commonly referred to as the ‘‘Fly
America Act,’’ and implementing regulations
at 41 CFR 301–10.131 through 301–10.143.
The law and regulations require that U.S.
Government financed international air travel
of passengers and transportation of personal
effects or property must use a U.S. Flag air
carrier or be performed under a cost sharing
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17:19 Aug 18, 2020
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arrangement with a U.S. carrier, if such
service is available.
8. Use of United States-flag vessels. You
must comply with the following
requirements of the Department of
Transportation at 46 CFR 381.7, in
regulations implementing the Cargo
Preference Act of 1954:
a. Pursuant to Public Law 83–664 (46
U.S.C. 55305), at least 50 percent of any
equipment, materials or commodities
procured, contracted for or otherwise
obtained with funds under this award, and
which may be transported by ocean vessel,
must be transported on privately owned
United States-flag commercial vessels, if
available.
b. Within 20 days following the date of
loading for shipments originating within the
United States or within 30 working days
following the date of loading for shipments
originating outside the United States, a
legible copy of a rated, ‘‘on-board’’
commercial ocean bill-of-lading in English
for each shipment of cargo described in
paragraph 8.a of this section must be
furnished to both our award administrator
(through you in the case of your contractor’s
bill-of-lading) and to the Division of National
Cargo, Office of Market Development,
Maritime Administration, Washington, DC
20590.
9. Research misconduct. You must comply
with requirements concerning research
misconduct in Enclosure 4 to DoD
Instruction 3210.7, ‘‘Research Integrity and
Misconduct.’’ The Instruction implements
the Governmentwide research misconduct
policy that the Office of Science and
Technology Policy published in the Federal
Register (65 FR 76260, December 6, 2000,
available through the U.S. Government
Printing Office website: https://
www.federalregister.gov/documents/2000/12/
06/00-30852/executive-office-of-thepresident-federal-policy-on-researchmisconduct-preamble-for-research).
10. Requirements for an Institution of
Higher Education Concerning Military
Recruiters and Reserve Officers Training
Corps (ROTC).
a. As a condition for receiving funds
available to the DoD under this award, you
agree that you are not an institution of higher
education (as defined in 32 CFR part 216)
that has a policy or practice that either
prohibits, or in effect prevents:
i. The Secretary of a Military Department
from maintaining, establishing, or operating
a unit of the Senior Reserve Officers Training
Corps (ROTC)—in accordance with 10 U.S.C.
654 and other applicable Federal laws—at
that institution (or any subelement of that
institution);
ii. Any student at that institution (or any
subelement of that institution) from enrolling
in a unit of the Senior ROTC at another
institution of higher education.
iii. The Secretary of a Military Department
or Secretary of Homeland Security from
gaining access to campuses, or access to
students (who are 17 years of age or older)
on campuses, for purposes of military
recruiting in a manner that is at least equal
in quality and scope to the access to
campuses and to students that is provided to
any other employer; or
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iv. Access by military recruiters for
purposes of military recruiting to the names
of students (who are 17 years of age or older
and enrolled at that institution or any
subelement of that institution); their
addresses, telephone listings, dates and
places of birth, levels of education, academic
majors, and degrees received; and the most
recent educational institutions in which they
were enrolled.
b. If you are determined, using the
procedures in 32 CFR part 216, to be such an
institution of higher education during the
period of performance of this award, we:
i. Will cease all payments to you of DoD
funds under this award and all other DoD
grants and cooperative agreements; and
ii. May suspend or terminate those awards
unilaterally for material failure to comply
with the award terms and conditions.
11. Historic preservation. You must
identify to us any:
a. Property listed or eligible for listing on
the National Register of Historic Places that
will be affected by this award, and provide
any help we may need, with respect to this
award, to comply with Section 106 of the
National Historic Preservation Act of 1966
(54 U.S.C. 306108), as implemented by the
Advisory Council on Historic Preservation
regulations at 36 CFR part 800 and Executive
Order 11593, ‘‘Identification and Protection
of Historic Properties,’’ [3 CFR, 1971–1975
Comp., p. 559]. Impacts to historical
properties are included in the definition of
‘‘human environment’’ that require impact
assessment under NEPA (See NP Article II,
Section A).
b. Potential under this award for
irreparable loss or destruction of significant
scientific, prehistorical, historical, or
archeological data, and provide any help we
may need, with respect to this award, to
comply with the Archaeological and Historic
Preservation Act of 1974 (54 U.S.C. chapter
3125).
12. Relocation and real property
acquisition. You must comply with
applicable provisions of 49 CFR part 24,
which implements the Uniform Relocation
Assistance and Real Property Acquisition
Policies Act of 1970 (42 U.S.C. 4601, et seq.)
and provides for fair and equitable treatment
of persons displaced by federally assisted
programs or persons whose property is
acquired as a result of such programs.
13. Confidentiality of patient records. You
must keep confidential any records that you
maintain of the identity, diagnosis,
prognosis, or treatment of any patient in
connection with any program or activity
relating to substance abuse education,
prevention, training, treatment, or
rehabilitation that is assisted directly or
indirectly under this award, in accordance
with 42 U.S.C. 290dd–2.
14. Pro-Children Act.
You must comply with applicable
restrictions in the Pro-Children Act of 1994
(Title 20, Chapter 68, subchapter X, Part B of
the U.S. Code) on smoking in any indoor
facility:
a. Constructed, operated, or maintained
under this award and used for routine or
regular provision of kindergarten,
elementary, or secondary education or library
services to children under the age of 18.
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b. Owned, leased, or contracted for and
used under this award for the routine
provision of federally funded health care, day
care, or early childhood development (Head
Start) services to children under the age of
18.
15. Constitution Day. You must comply
with Public Law 108–447, Div. J, Title I, Sec.
111 (36 U.S.C. 106 note), which requires each
educational institution receiving Federal
funds in a Federal fiscal year to hold an
educational program on the United States
Constitution on September 17th during that
year for the students served by the
educational institution.
16. Trafficking in persons. You must
comply with requirements concerning
trafficking in persons specified in the award
term at 2 CFR 175.15(b), as applicable.
17. Whistleblower protections. You must
comply with 10 U.S.C. 2409, including the:
a. Prohibition on reprisals against
employees disclosing certain types of
information to specified persons or bodies;
and
b. Requirement to notify your employees in
writing, in the predominant native language
of the workforce, of their rights and
protections under that statute.
Section B. [Reserved]
Dated: July 24, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
DEPARTMENT OF DEFENSE
Office of the Secretary
2 CFR Part 1108
[DOD–2016–OS–0051]
RIN 0790–AJ46
Definitions for DoD Grant and
Agreement Regulations
Office of the Secretary,
Department of Defense (DoD).
ACTION: Final rule.
AGENCY:
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B. Legal Authorities for the Regulatory
Action
There are two statutory authorities for
this rule:
• 10 U.S.C. 113, which establishes the
Secretary of Defense as the head of the
Department of Defense (DoD); and
• 5 U.S.C. 301, which authorizes the
head of an Executive department to
prescribe regulations for the governance
of that department and the performance
of its business.
III. Comments and Responses
This rule is the fifth of a
sequence of six final rules published in
the Federal Register to update the DoD
Grant and Agreement Regulations
(DoDGARs). Additionally, this rule
provides definitions of terms that are
common to the DoDGARs and
establishes a central regulatory location
for each term.
DATES: This rule is effective October 19,
2020.
FOR FURTHER INFORMATION CONTACT:
Barbara Orlando, Basic Research Office,
571–372–6413.
SUPPLEMENTARY INFORMATION:
17:19 Aug 18, 2020
This final rule incorporates the Office
of Management and Budget’s (OMB)
guidance to Federal agencies on
administrative requirements, cost
principles, and audit requirements that
apply to Federal grants, cooperative
agreements, and other assistance
instruments (2 CFR part 200).
Additionally, this rule provides
definitions of terms that are common to
the DoDGARs and establishes a central
regulatory location for each term.
In December 2014 (79 FR 76047), DoD
established an interim implementation
of the final guidance, ‘‘Uniform
Administrative Requirements, Cost
Principles, and Audit Requirements for
Federal Awards,’’ published by the
Office of Management and Budget
(OMB) on December 26, 2013, in 2 CFR
part 200 (Uniform Guidance—available
at 78 FR 78589). DoD then published a
Notice of Proposed Rulemaking
(November 7, 2016 (81 FR 78360)) that
proposed changes to 2 CFR part 1108,
Definitions, that would establish
definitions of terms that are common to
most portions of those regulations, as
well as create a central location for the
definitions.
BILLING CODE 5001–06–P
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A. Purpose of the Final Rule
II. Regulatory History
[FR Doc. 2020–16410 Filed 8–18–20; 8:45 am]
SUMMARY:
I. Executive Summary
DoD did not receive public comments
in response to the Notice of Proposed
Rulemaking that proposed 2 CFR part
1108, Definitions, which was published
in the Federal Register on November 7,
2016. However, in reviewing the five
other rules proposed on that date, which
are being published as final rules in
today’s Federal Register, and in
developing the yet-to-be-published
portions of the updated DoDGARs, DoD
identified the need for changes to make
corrections and enhance the clarity and
currency of this part and its consistency
with other parts of the DoDGARs.
Therefore, we:
• Added ‘‘or agreements’’ to modify
‘‘officer’’ in 2 CFR 1108.80, Claim.
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51229
• Added ‘‘Indian tribe’’ in 2 CFR
1108.85(a), Cognizant agency for
indirect costs.
• Added a definition of ‘‘cost-type
award’’ at 2 CFR 1108.128 to be parallel
to other terms defined in 2 CFR part
1108.
• Added a definition of ‘‘prior
approval’’ at 2 CFR 1108.298 to ensure
consistent understanding of use of the
term.
• Added to the definition of ‘‘State’’
in 2 CFR 1108.350 the qualifier ‘‘for
purposes of the administrative
requirements of these regulations . . .’’
for clarity. Although this part already
recognizes that a term can be defined
differently in a national policy
requirement, there also may be
instances where an authorizing statute
defines the term ‘‘State’’ differently
when establishing eligibility for
financial assistance.
• Modified the name of appendix A
by substituting the term ‘‘types of
awards’’ with ‘‘types of legal
instruments’’ (i.e., Background on
assistance, acquisition, and terms for
types of legal instruments) for
consistency with the usage in the
Federal Grant and Cooperative
Agreement Act. Throughout this part,
where appropriate, we used the word(s)
‘‘instruments’’ or ‘‘legal instruments, in
lieu of ‘‘awards.’’
• Eliminated redundancy, e.g., by
removing ‘‘prime’’ as a modifier of the
defined term ‘‘award.’’
• Updated language to ensure use of
current terminology, e.g., substituted
‘‘notice of funding opportunity’’ for
‘‘program announcement’’ in 2 CFR
1108.405(a), Voluntary (committed or
uncommitted) cost sharing.
In addition, we made some minor
edits, e.g., changing plural usage to
singular where the context warranted it;
using defined terms, rather than
descriptive language; and substituting
language that is consistent with other
parts of the DoDGARs.
IV. Regulatory Analyses
We developed this rule after
considering numerous statutes and
Executive Orders (E.O.s) related to
rulemaking. Below we summarize our
analyses based on these statutes or
E.O.s.
A. Regulatory Planning and Review
Executive Orders 12866 (Regulatory
Planning and Review) and 13563
(Improving Regulation and Regulatory
Review) direct agencies to assess the
costs and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
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]]>Agencies
[Federal Register Volume 85, Number 161 (Wednesday, August 19, 2020)]
[Unknown Section]
[Pages 51223-51229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16410]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
2 CFR Part 1122
[DOD-2016-OS-0053]
RIN 0790-AJ48
National Policy Requirements: General Award Terms and Conditions
AGENCY: Office of the Secretary, Department of Defense (DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule is the fourth of a sequence of six final rules
published in this issue of the Federal Register. This final rule adds a
new Department of Defense Grant and Agreement Regulations (DoDGARs)
part to establish a consistent way for DoD Components to organize the
portion of their general terms and conditions covering national policy
requirements, such as nondiscrimination, environmental protection, and
live organisms. It also provides standard wording of terms and
conditions for national policy requirements that apply generally to DoD
programs and awards.
DATES: This rule is effective October 19, 2020.
FOR FURTHER INFORMATION CONTACT: Barbara Orlando, Basic Research
Office, telephone 571-372-6413.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of the Final Rule
As explained in the Supplementary Information section of the first
of the sequence of final rules in this section of this issue of the
Federal Register, these six rules collectively make a major portion of
needed updates to the Department of Defense Grant and Agreement
Regulations (DoDGARs). The purpose of this rule, the fourth of the
sequence, is to maximize uniformity of general terms and conditions
addressing national policy requirements within DoD grants and
cooperative agreements.
As described in the second of the six final rules, 2 CFR part 1120
of the DoDGARs establishes a standard award format for DoD Components'
grants and cooperative agreements. National policy requirements are one
of the four sub elements of an award's general terms and conditions.
This added part---2 CFR part 1122---provides (1) a standard
organization for the general terms and conditions addressing national
policy requirements, and (2) standard wording of terms and conditions
for the national policy requirements that commonly apply to DoD
Components' grants and cooperative agreements.
It should be noted that 2 CFR part 1122 applies to grants and
cooperative agreements awarded to all types of recipient entities. That
scope distinguishes part 1122 from the other final rules in 2 CFR parts
1126 through 1138 published in the Federal Register, which address
requirements only for Department of Defense (DoD) grants and
cooperative agreements awarded to institutions of higher education,
nonprofit organizations, States, local governments, and Indian tribes.
B. Revisions Implemented by This Rule
This rule supersedes the Appendix of 32 CFR part 21, moving it to 2
CFR part 1122. It provides an updated version of the National Policies
that apply to all DoD financial assistance awards.
C. Legal Authorities for the Regulatory Action
There are two statutory authorities for this final rule:
10 U.S.C. 113, which establishes the Secretary of Defense
as the head of the Department of Defense; and
5 U.S.C. 301, which authorizes the head of an Executive
department to
[[Page 51224]]
prescribe regulations for the governance of that department and the
performance of its business.
II. Regulatory History
In December 2014 (79 FR 76047), DoD established an interim
implementation of the final guidance, ``Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards,'' published by the Office of Management and Budget (OMB) on
December 26, 2013, in 2 CFR part 200 (Uniform Guidance--available at 78
FR 78589). DoD then published a Notice of Proposed Rulemaking (November
7, 2016 (81 FR 78376)) that proposed to part title 2 part 1122 to
provide standard wording of terms and conditions for national policy
requirements that apply generally to DoD programs and awards.
III. Comments and Responses
DoD received one public comment on the Notice of Proposed
Rulemaking (NPRM) for 2 CFR part 1122, published on November 7, 2016.
That comment was from a nonprofit organization representing groundwater
professionals.
Comment: The commenter pointed out that paragraph A.4.f of National
Policy Article II (appendix B to 2 CFR part 1122), Environmental
national policy requirements addressed only underground sources of
drinking water that are designated as the sole or principal drinking
water source (i.e., a ``sole-source aquifer''), thereby understating
the need for protection of groundwater sources of drinking water and
not fully reflecting the provisions of the Safe Drinking Water Act
(SDWA). The commenter pointed out that the SDWA (1) also has provisions
followed by States and public water systems to designate ``wellhead
protection areas'' around and supplying groundwater to public water
system wells (42 U.S.C. 300h-7, also cited as SDWA Section 1428); and
(2) requires States and communities to delineate the areas to be
protected from contamination around public water supply wells and to
have a program to manage potential sources of contamination to minimize
their threat to underground drinking water sources supplying
communities' wells.
Response: DOD agreed with the comment and amended the requirement
by adding the wording ``. . . and in wellhead protection areas . . .''
to the specified paragraph after the words ``Underground sources of
drinking water in areas that have an aquifer that is the sole or
principal drinking water source . . .''
DoD made one other substantive change to this part as follows:
In National Policy (NP) Article IV, A.7 (appendix D to 2 CFR part
1122), we added clarifying language to indicate that ``Fly America''
requirements apply to transport of persons, as well as personal
effects. This change was deemed necessary because the language of the
NPRM dealt only with air travel of property. We also added language to
refer to both the statute and its implementing regulations. A
comparable change was made in the third of the final rules published in
today's Federal Register. The change was made in Appendix C to 2 CFR
part 1132, specifically in Procurement (PROC) Article III, ``Contract
provisions for recipient procurements,'' Section B.10.
In addition, we made an editorial change for clarity and
consistency with other of the final rules published in today's Federal
Register. In several places, where the word ``agreement'' was used
generically (rather than in the term ``cooperative agreement''), we
changed it to ``award.''
IV. Regulatory Analyses
We developed this rule after considering numerous statutes and
Executive Orders (E.O.s) related to rulemaking. Below we summarize our
analyses based on these statutes or E.O.s.
A. Regulatory Planning and Review
Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated as a ``not significant''
regulatory action, and not economically significant, under section 3(f)
of Executive Order 12866. Accordingly, the rule has not been reviewed
by the Office of Management and Budget (OMB) under the requirements of
these Executive Orders.
Executive Order 13771 (Reducing Regulation and Controlling
Regulatory Costs) directs agencies to reduce regulation and control
regulatory costs and provides that ``for every one new regulation
issued, at least two prior regulations be identified for elimination,
and that the cost of planned regulations be prudently managed and
controlled through a budgeting process.'' This rule is not subject to
the requirements of this Executive Order because it is not significant
under Executive Order 12866.
Costs
DoD has found that this rule will not impose costs on the public,
as there are not any costs associated with standardizing general terms
and conditions addressing national policy requirements.
Benefits
DoD determined that providing a central location and standard
language within the DoDGARs for the terms and conditions of the most
commonly applicable national policy requirements will help maximize
long-term benefits in relation to costs and burdens for recipients of
DoD grants and cooperative agreements.
The principal benefits of this regulatory action are that
recipients and others who use the content of awards from multiple DoD
Component awarding offices should:
Be able to find what they need within different offices'
awards more quickly and easily due to the standard organization for
general terms and conditions covering national policy requirements.
Spend less time evaluating terms and conditions, because
the standard wording for commonly applicable national policy
requirements will obviate the need to interpret different wording
various offices' awards include for the same requirement.
Alternatives
1. No action--If no action was taken DoD would not be compliance
with OMB requirements to move all financial assistance regulations to 2
CFR.
2. Next Best alternative--The next best alternative would be to add
additional terms, beyond those found in the DoDGARs, which give
background explanations for the terms that are in the DoDGARs. While
the new terms may add additional context to the terms in the DoDGARs,
it would be more beneficial to expand the definition of the term than
to direct the public to additional terms.
B. Congressional Review Act (5 U.S.C. 801, et seq.)
Under the Congressional Review Act, a major rule may not take
effect until at least 60 days after submission to Congress of a report
regarding the rule. A major rule is one that would have an annual
effect on the economy of $100
[[Page 51225]]
million or more or have certain other impacts. This rule is not a major
rule under the Congressional Review Act.
C. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. This rule will not impose any impacts on any entities. This
means that there will be no economic impacts on any entities.
Therefore, the Department of Defense under 5 U.S.C. 601 et seq.
certifies that this rule will not have a significant economic impact on
a substantial number of small entities.
D. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, we want to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rulemaking. If the rule
would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact the person in the FOR FURTHER
INFORMATION CONTACT section of this rule.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business.
E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538,
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any 1 year. Although this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
F. Collection of Information
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3520) applies to
collections of information using identical questions posed to, or
reporting or recordkeeping requirements imposed on, ten or more members
of the public. This rule does not call for a new collection of
information under the PRA.
Federalism
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. This proposed rule does not have federalism implications
that warrant the preparation of a federalism assessment in accordance
with Executive Order 13132.
List of Subjects in 2 CFR Part 1122
Business and industry, Colleges and universities, Cooperative
agreements, Grants administration, Hospitals, Human research subjects,
Indians, Nonprofit organizations, Research misconduct, Small business,
State and local governments.
0
Accordingly, 2 CFR chapter XI is amended by adding part 1122 to read as
follows:
PART 1122--NATIONAL POLICY REQUIREMENTS: GENERAL AWARD TERMS AND
CONDITIONS
Sec.
A--General
1122.1 Purpose of this part.
1122.2 Definition of ``national policy requirement.''
1122.3 Definitions of other terms as they are used in this part.
Subpart B--Terms and Conditions
1122.100 Purpose of this subpart.
1122.105 Where to find the terms and conditions.
1122.110 Organization of each article of national policy
requirements.
1122.115 Cross-cutting national policy requirements.
1122.120 Other national policy requirements.
Appendix A Terms and condition for NP Article I, ``Nondiscrimination
National Policy Requirements.''
Appendix B Terms and condition for NP Article II, ``Environmental
National Policy Requirements.''
Appendix C Terms and conditions for NP Article III, ``National
Policy Requirements Concerning Live Organisms.''
Appendix D Terms and conditions for NP Article IV, ``Other National
Policy Requirements.''
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
Subpart A--General
Sec. 1122.1 Purpose of this part.
(a) This part specifies a standard format and standard wording of
general terms and conditions for Subdivision B of the general terms and
conditions of DoD grants and cooperative agreements, which concerns
national policy requirements.
(b) It thereby implements:
(1) Office of Management and Budget (OMB) guidance in 2 CFR
200.210(b)(ii) and 200.300, as those paragraphs of 2 CFR part 200
relate to national policy requirements for general terms and conditions
of DoD grants and cooperative agreements to institutions of higher
education and other nonprofit organizations, States, local governments,
and Indian tribes.
(2) National policy requirements, to the extent they apply, for
general terms and conditions of DoD awards to for-profit firms, foreign
organizations, and foreign public entities.
Sec. 1122.2 Definition of ``national policy requirement.''
For the purposes of this chapter, a national policy requirement is
a requirement:
(a) That is prescribed by a statute, Executive order, policy
guidance issued by the Executive Office of the President, or regulation
that specifically refers to grants, cooperative agreements, or
financial assistance in general;
(b) With which a recipient of a grant or cooperative agreement must
comply during the period of performance; and
(c) That is outside subject matter areas covered by administrative
requirements in subchapters D or E of this chapter.
Sec. 1122.3 Definition of other terms as they are used in this part.
Because the meaning of some terms used in this part derive from
their definitions in the statutes, Executive orders, or other sources
of national policy requirements that this part implements, the meanings
of those terms may vary from their meanings in other parts of the DoD
Grant and Agreement Regulations. For example, some statutes define
``State'' in ways that differ from each other and from the definition
provided in 2 CFR part B. In each case, the definition in the source of
the pertinent national policy requirement takes precedence over the
definition in 2 CFR part B for the purposes of complying with that
requirement.
[[Page 51226]]
Subpart B--Terms and Conditions
Sec. 1122.100 Purpose of this subpart.
This subpart provides:
(a) Direction to DoD Components on how to construct the four
articles of national policy requirements for inclusion in the general
terms and conditions of grants and cooperative agreements.
(b) Standard wording for national policy requirements that are more
commonly applicable to DoD Components' grants and cooperative
agreements.
Sec. 1122.105 Where to find the terms and conditions.
(a) Appendices A through D of this part provide standard wording of
terms and conditions for the four articles of national policy
requirements. The articles address the rights and responsibilities of
the Government and the recipient related to those national policy
requirements.
(b) The following table shows which national policy terms and
conditions may be found in each appendix to this part:
------------------------------------------------------------------------
You will find terms
and conditions That would
specifying recipients' appear in an
In . . . rights and award within NP
responsibilities Article . . .
related to . . .
------------------------------------------------------------------------
Appendix A.................... Non[dash]discriminatio I.
n national policy
requirements.
Appendix B.................... Environmental national II.
policy requirements.
Appendix C.................... National policy III.
requirements
concerning live
organisms.
Appendix D.................... Other national policy IV.
requirements.
------------------------------------------------------------------------
Sec. 1122.110 Organization of each article of national policy
requirements.
Each of NP Articles I through IV includes two sections.
(a) Section A of each article includes national policy requirements
that are cross-cutting in that their applicability extends to many or
all DoD awards. Appendices A through D to this part provide standard
wording for each of those requirements.
(b) Section B of each article is the location in the award for
program-specific national policy requirements. Section B is reserved in
the standard wording of the articles provided in appendices A through D
to this part.
Sec. 1122.115 Cross-cutting national policy requirements.
(a) General requirement to include applicable cross-cutting
requirements. A DoD Component's general terms and conditions must
include the standard wording provided in appendices A through D to this
part for each national policy requirement addressed in Section A of NP
Articles I, II, III, and IV, respectively, that may apply either to:
(1) A recipient of an award using those general terms and
conditions; or
(2) A subrecipient of a subaward under an award using those general
terms and conditions.
(b) Authority to reserve or omit inapplicable paragraphs. A DoD
Component may reserve or omit any paragraph appendices A through D to
this part provide for Section A of NP Articles I, II, III, and IV of
its general terms and conditions if it determines that the national
policy requirement addressed in that paragraph will not apply to any
awards using those terms and conditions nor to any subawards under
them.
(c) Authority to use alternate wording. (1) A DoD Component may use
different wording for a national policy requirement than is provided in
appendices A through D to this part if it is authorized or required to
do so by a statute or a regulation published in the Code of Federal
Regulations after opportunity for public comment.
(2) A DoD Component in that case:
(i) Must include the wording required by the statute or regulation
in Section B of the appropriate article. This will help a recipient
recognize the wording as a variation of the usual DoD wording for the
requirement.
(ii) May either reserve the paragraph of Section A of the article
in which that national policy requirement otherwise would appear or
insert in that paragraph wording to refer the recipient to the
paragraph in Section B of the article in which the requirement does
appear.
Sec. 1122.120 Other national policy requirements.
If a DoD Component determines that awards using its general terms
and conditions, or subawards under them, are subject to a national
policy requirement that is not addressed in the standard wording
appendices A through D to this part provide for cross-cutting
requirements, the DoD Component must include the requirement in its
general terms and conditions. It should add the requirement in Section
B of NP Article I, II, III, or IV, as most appropriate to the subject
matter of the requirement.
Appendix A to Part 1122--Terms and Conditions for NP Article I,
``Nondiscrimination National Policy Requirements''
A DoD Component must use the following wording for NP Article I
of its general terms and conditions in accordance with the
provisions of Subpart B of this part.
NP Article I. Nondiscrimination national policy requirements. (December
2014)
Section A. Cross-cutting nondiscrimination requirements. By
signing this award or accepting funds under this award, you assure
that you will comply with applicable provisions of the national
policies prohibiting discrimination:
1. On the basis of race, color, or national origin, in Title VI
of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), as
implemented by Department of Defense (DoD) regulations at 32 CFR
part 195.
2. On the basis of gender, blindness, or visual impairment, in
Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et
seq.), as implemented by DoD regulations at 32 CFR part 196.
3. On the basis of age, in the Age Discrimination Act of 1975
(42 U.S.C. 6101 et seq.), as implemented by Department of Health and
Human Services regulations at 45 CFR part 90.
4. On the basis of disability, in the Rehabilitation Act of 1973
(29 U.S.C. 794), as implemented by Department of Justice regulations
at 28 CFR part 41 and DoD regulations at 32 CFR part 56.
5. On the basis of disability in the Architectural Barriers Act
of 1968 (42 U.S.C. 4151 et seq.) related to physically handicapped
persons' ready access to, and use of, buildings and facilities for
which Federal funds are used in design, construction, or alteration.
Section B. [Reserved]
Appendix B to Part 1122--Terms and Conditions for NP Article II,
``Environmental National Policy Requirements''
A DoD Component must use the following wording for NP Article II
of its general terms and conditions in accordance with the
provisions of Subpart B of this part.
NP Article II. Environmental national policy requirements. (December
2014)
Section A. Cross-cutting environmental requirements. You must:
1. You must comply with all applicable Federal environmental
laws and regulations. The laws and regulations identified in this
section are not intended to be a complete list.
2. Comply with applicable provisions of the Clean Air Act (42
U.S.C. 7401, et seq.) and Clean Water Act (33 U.S.C. 1251, et seq.).
3. Comply with applicable provisions of the Lead-Based Paint
Poisoning Prevention Act (42 U.S.C. 4821-4846), as implemented
[[Page 51227]]
by the Department of Housing and Urban Development at 24 CFR part
35. The requirements concern lead-based paint in buildings owned by
the Federal Government or housing receiving Federal assistance.
4. Immediately identify to us, as the Federal awarding agency,
any potential impact that you find this award may have on:
a. The quality of the ``human environment'', as defined in 40
CFR 1508.14, including wetlands; and provide any help we may need to
comply with the National Environmental Policy Act (NEPA, at 42
U.S.C. 4321 et seq.), the regulations at 40 CFR 1500-1508, and E.O.
12114, if applicable; and assist us to prepare Environmental Impact
Statements or other environmental documentation. In such cases, you
may take no action that will have an environmental impact (e.g.,
physical disturbance of a site such as breaking of ground) or limit
the choice of reasonable alternatives to the proposed action until
we provide written notification of Federal compliance with NEPA or
E.O. 12114.
b. Flood-prone areas and provide any help we may need to comply
with the National Flood Insurance Act of 1968, as amended by the
Flood Disaster Protection Act of 1973 (42 U.S.C. 4001 et seq.),
which require flood insurance, when available, for federally
assisted construction or acquisition in flood-prone areas.
c. A land or water use or natural resource of a coastal zone
that is part of a federally approved State coastal zone management
plan and provide any help we may need to comply with the Coastal
Zone Management Act of 1972 (16 U.S.C. 1451, et seq.) including
preparation of a Federal agency Coastal Consistency Determination.
d. Coastal barriers along the Atlantic and Gulf coasts and Great
Lakes' shores and provide help we may need to comply with the
Coastal Barrier Resources Act (16 U.S.C. 3501 et seq.), concerning
preservation of barrier resources.
e. Any existing or proposed component of the National Wild and
Scenic Rivers system and provide any help we may need to comply with
the Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et seq.).
f. Underground sources of drinking water in areas that have an
aquifer that is the sole or principal drinking water source and in
wellhead protection areas, and provide any help we may need to
comply with the Safe Drinking Water Act (42 U.S.C. 300f et seq.).
5. You must comply fully with the Endangered Species Act of
1973, as amended (ESA, at 16 U.S.C. 1531 et seq.), and implementing
regulations of the Departments of the Interior (50 CFR parts 10-24)
and Commerce (50 CFR parts 217-227). You also must provide any help
we may need in complying with the consultation requirements of ESA
section 7 (16 U.S.C. 1536) applicable to Federal agencies or any
regulatory authorization we may need based on the award of this
grant. This is not in lieu of responsibilities you have to comply
with provisions of the Act that apply directly to you as a U.S.
entity, independent of receiving this award.
6. You must fully comply with the Marine Mammal Protection Act
of 1972, as amended (MMPA, at 16 U.S.C. 1361 et seq.) and provide
any assistance we may need in obtaining any required MMPA permit
based on an award of this grant.
Section B. [Reserved]
Appendix C to Part 1122--Terms and Conditions for NP Article III,
``National Policy Requirements Concerning Live Organisms''
A DoD Component must use the following wording for NP Article
III of its general terms and conditions in accordance with the
provisions of Subpart B of this part.
NP Article III. National policy requirements concerning live organisms.
(December 2014)
Section A. Cross-cutting requirements concerning live organisms.
1. Human subjects.
a. You must protect the rights and welfare of individuals who
participate as human subjects in research under this award and
comply with the requirements at 32 CFR part 219, DoD Instruction
(DoDI) 3216.02, 10 U.S.C. 980, and when applicable, Food and Drug
Administration (FDA) regulations.
b. You must not begin performance of research involving human
subjects, also known as human subjects research (HSR), that is
covered under 32 CFR part 219, or that meets exemption criteria
under 32 CFR 219.101(b), until you receive a formal notification of
approval from a DoD Human Research Protection Official (HRPO).
Approval to perform HSR under this award is received after the HRPO
has performed a review of your documentation of planned HSR
activities and has officially furnished a concurrence with your
determination as presented in the documentation.
c. In order for the HRPO to accomplish this concurrence review,
you must provide sufficient documentation to enable his or her
assessment as follows:
i. If the HSR meets an exemption criterion under 32 CFR
219.101(b), the documentation must include a citation of the
exemption category under 32 CFR 219.101(b) and a rationale
statement.
ii. If your activity is determined as ``non-exempt research
involving human subjects'', the documentation must include:
(A) Assurance of Compliance (i.e., Department of Health and
Human Services Office for Human Research Protections (OHRP)
Federalwide Assurance (FWA)) appropriate for the scope of work or
program plan; and
(B) Institutional Review Board (IRB) approval, as well as all
documentation reviewed by the IRB to make their determination.
d. The HRPO retains final judgment on what activities constitute
HSR, whether an exempt category applies, whether the risk
determination is appropriate, and whether the planned HSR activities
comply with the requirements in paragraph 1.a of this section.
e. You must notify the HRPO immediately of any suspensions or
terminations of the Assurance of Compliance.
f. DoD staff, consultants, and advisory groups may independently
review and inspect your research and research procedures involving
human subjects and, based on such findings, DoD may prohibit
research that presents unacceptable hazards or otherwise fails to
comply with DoD requirements.
g. Definitions for terms used in paragraph 1 of this article are
found in DoDI 3216.02.
2. Animals.
a. Prior to initiating any animal work under the award, you
must:
i. Register your research, development, test, and evaluation or
training facility with the Secretary of Agriculture in accordance
with 7 U.S.C. 2136 and 9 CFR 2.30, unless otherwise exempt from this
requirement by meeting the conditions in 7 U.S.C. 2136 and 9 CFR
parts 1-4 for the duration of the activity.
ii. Have your proposed animal use approved in accordance with
Department of Defense Instruction (DoDI) 3216.01, Use of Animals in
DoD Programs by a DoD Component Headquarters Oversight Office.
iii. Furnish evidence of such registration and approval to the
grants officer.
b. You must make the animals on which the research is being
conducted, and all premises, facilities, vehicles, equipment, and
records that support animal care and use available during business
hours and at other times mutually agreeable to you, the United
States Department of Agriculture Office of Animal and Plant Health
Inspection Service (USDA/APHIS) representative, personnel
representing the DoD component oversight offices, as well as the
grants officer, to ascertain that you are compliant with 7 U.S.C.
2131 et seq., 9 CFR parts 1-4, and DoDI 3216.01.
c. Your care and use of animals must conform with the pertinent
laws of the United States, regulations of the Department of
Agriculture, and regulations, policies, and procedures of the
Department of Defense (see 7 U.S.C. 2131 et seq., 9 CFR parts 1-4,
and DoDI 3216.01).
d. You must acquire animals in accordance with DoDI 3216.01.
3. Use of Remedies.
Failure to comply with the applicable requirements in paragraphs
1-2 of this section may result in the DoD Component's use of
remedies, e.g., wholly or partially terminating or suspending the
award, temporarily withholding payment under the award pending
correction of the deficiency, or disallowing all or part of the cost
of the activity or action (including the federal share and any
required cost sharing or matching) that is not in compliance. See
OAR Article III.
Section B. [Reserved]
Appendix D to Part 1122--Terms and Conditions for NP Article IV,
``Other National Policy Requirements''
A DoD Component must use the following wording for NP Article IV
of its general terms and conditions in accordance with the
provisions of Subpart B of this part.
NP Article IV. Other National Policy Requirements. (December 2014)
Section A. Cross-cutting requirements.
1. Debarment and suspension. You must comply with requirements
regarding debarment and suspension in Subpart C of 2
[[Page 51228]]
CFR part 180, as adopted by DoD at 2 CFR part 1125. This includes
requirements concerning your principals under this award, as well as
requirements concerning your procurement transactions and subawards
that are implemented in PROC Articles I through III and SUB Article
II.
2. Drug-free workplace. You must comply with drug-free workplace
requirements in Subpart B of 2 CFR part 26, which is the DoD
implementation of 41 U.S.C. chapter 81, ``Drug-Free Workplace.''
3. Lobbying.
a. You must comply with the restrictions on lobbying in 31
U.S.C. 1352, as implemented by DoD at 32 CFR part 28, and submit all
disclosures required by that statute and regulation.
b. You must comply with the prohibition in 18 U.S.C. 1913 on the
use of Federal funds, absent express Congressional authorization, to
pay directly or indirectly for any service, advertisement or other
written matter, telephone communication, or other device intended to
influence at any time a Member of Congress or official of any
government concerning any legislation, law, policy, appropriation,
or ratification.
c. If you are a nonprofit organization described in section
501(c)(4) of title 26, United States Code (the Internal Revenue Code
of 1968), you may not engage in lobbying activities as defined in
the Lobbying Disclosure Act of 1995 (2 U.S.C., chapter 26). If we
determine that you have engaged in lobbying activities, we will
cease all payments to you under this and other awards and terminate
the awards unilaterally for material failure to comply with the
award terms and conditions.
4. Officials not to benefit. You must comply with the
requirement that no member of Congress shall be admitted to any
share or part of this award, or to any benefit arising from it, in
accordance with 41 U.S.C. 6306.
5. Hatch Act. If applicable, you must comply with the provisions
of the Hatch Act (5 U.S.C. 1501-1508) concerning political
activities of certain State and local government employees, as
implemented by the Office of Personnel Management at 5 CFR part 151,
which limits political activity of employees or officers of State or
local governments whose employment is connected to an activity
financed in whole or part with Federal funds.
6. Native American graves protection and repatriation. If you
control or possess Native American remains and associated funerary
objects, you must comply with the requirements of 43 CFR part 10,
the Department of the Interior implementation of the Native American
Graves Protection and Repatriation Act of 1990 (25 U.S.C., chapter
32).
7. Fly America Act. You must comply with the International Air
Transportation Fair Competitive Practices Act of 1974 (49 U.S.C.
40118), commonly referred to as the ``Fly America Act,'' and
implementing regulations at 41 CFR 301-10.131 through 301-10.143.
The law and regulations require that U.S. Government financed
international air travel of passengers and transportation of
personal effects or property must use a U.S. Flag air carrier or be
performed under a cost sharing arrangement with a U.S. carrier, if
such service is available.
8. Use of United States-flag vessels. You must comply with the
following requirements of the Department of Transportation at 46 CFR
381.7, in regulations implementing the Cargo Preference Act of 1954:
a. Pursuant to Public Law 83-664 (46 U.S.C. 55305), at least 50
percent of any equipment, materials or commodities procured,
contracted for or otherwise obtained with funds under this award,
and which may be transported by ocean vessel, must be transported on
privately owned United States-flag commercial vessels, if available.
b. Within 20 days following the date of loading for shipments
originating within the United States or within 30 working days
following the date of loading for shipments originating outside the
United States, a legible copy of a rated, ``on-board'' commercial
ocean bill-of-lading in English for each shipment of cargo described
in paragraph 8.a of this section must be furnished to both our award
administrator (through you in the case of your contractor's bill-of-
lading) and to the Division of National Cargo, Office of Market
Development, Maritime Administration, Washington, DC 20590.
9. Research misconduct. You must comply with requirements
concerning research misconduct in Enclosure 4 to DoD Instruction
3210.7, ``Research Integrity and Misconduct.'' The Instruction
implements the Governmentwide research misconduct policy that the
Office of Science and Technology Policy published in the Federal
Register (65 FR 76260, December 6, 2000, available through the U.S.
Government Printing Office website: https://www.federalregister.gov/documents/2000/12/06/00-30852/executive-office-of-the-president-federal-policy-on-research-misconduct-preamble-for-research).
10. Requirements for an Institution of Higher Education
Concerning Military Recruiters and Reserve Officers Training Corps
(ROTC).
a. As a condition for receiving funds available to the DoD under
this award, you agree that you are not an institution of higher
education (as defined in 32 CFR part 216) that has a policy or
practice that either prohibits, or in effect prevents:
i. The Secretary of a Military Department from maintaining,
establishing, or operating a unit of the Senior Reserve Officers
Training Corps (ROTC)--in accordance with 10 U.S.C. 654 and other
applicable Federal laws--at that institution (or any subelement of
that institution);
ii. Any student at that institution (or any subelement of that
institution) from enrolling in a unit of the Senior ROTC at another
institution of higher education.
iii. The Secretary of a Military Department or Secretary of
Homeland Security from gaining access to campuses, or access to
students (who are 17 years of age or older) on campuses, for
purposes of military recruiting in a manner that is at least equal
in quality and scope to the access to campuses and to students that
is provided to any other employer; or
iv. Access by military recruiters for purposes of military
recruiting to the names of students (who are 17 years of age or
older and enrolled at that institution or any subelement of that
institution); their addresses, telephone listings, dates and places
of birth, levels of education, academic majors, and degrees
received; and the most recent educational institutions in which they
were enrolled.
b. If you are determined, using the procedures in 32 CFR part
216, to be such an institution of higher education during the period
of performance of this award, we:
i. Will cease all payments to you of DoD funds under this award
and all other DoD grants and cooperative agreements; and
ii. May suspend or terminate those awards unilaterally for
material failure to comply with the award terms and conditions.
11. Historic preservation. You must identify to us any:
a. Property listed or eligible for listing on the National
Register of Historic Places that will be affected by this award, and
provide any help we may need, with respect to this award, to comply
with Section 106 of the National Historic Preservation Act of 1966
(54 U.S.C. 306108), as implemented by the Advisory Council on
Historic Preservation regulations at 36 CFR part 800 and Executive
Order 11593, ``Identification and Protection of Historic
Properties,'' [3 CFR, 1971-1975 Comp., p. 559]. Impacts to
historical properties are included in the definition of ``human
environment'' that require impact assessment under NEPA (See NP
Article II, Section A).
b. Potential under this award for irreparable loss or
destruction of significant scientific, prehistorical, historical, or
archeological data, and provide any help we may need, with respect
to this award, to comply with the Archaeological and Historic
Preservation Act of 1974 (54 U.S.C. chapter 3125).
12. Relocation and real property acquisition. You must comply
with applicable provisions of 49 CFR part 24, which implements the
Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970 (42 U.S.C. 4601, et seq.) and provides for fair and
equitable treatment of persons displaced by federally assisted
programs or persons whose property is acquired as a result of such
programs.
13. Confidentiality of patient records. You must keep
confidential any records that you maintain of the identity,
diagnosis, prognosis, or treatment of any patient in connection with
any program or activity relating to substance abuse education,
prevention, training, treatment, or rehabilitation that is assisted
directly or indirectly under this award, in accordance with 42
U.S.C. 290dd-2.
14. Pro-Children Act.
You must comply with applicable restrictions in the Pro-Children
Act of 1994 (Title 20, Chapter 68, subchapter X, Part B of the U.S.
Code) on smoking in any indoor facility:
a. Constructed, operated, or maintained under this award and
used for routine or regular provision of kindergarten, elementary,
or secondary education or library services to children under the age
of 18.
[[Page 51229]]
b. Owned, leased, or contracted for and used under this award
for the routine provision of federally funded health care, day care,
or early childhood development (Head Start) services to children
under the age of 18.
15. Constitution Day. You must comply with Public Law 108-447,
Div. J, Title I, Sec. 111 (36 U.S.C. 106 note), which requires each
educational institution receiving Federal funds in a Federal fiscal
year to hold an educational program on the United States
Constitution on September 17th during that year for the students
served by the educational institution.
16. Trafficking in persons. You must comply with requirements
concerning trafficking in persons specified in the award term at 2
CFR 175.15(b), as applicable.
17. Whistleblower protections. You must comply with 10 U.S.C.
2409, including the:
a. Prohibition on reprisals against employees disclosing certain
types of information to specified persons or bodies; and
b. Requirement to notify your employees in writing, in the
predominant native language of the workforce, of their rights and
protections under that statute.
Section B. [Reserved]
Dated: July 24, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-16410 Filed 8-18-20; 8:45 am]
BILLING CODE 5001-06-P
