Nondiscrimination in Foreign Assistance, 3583-3587 [2024-01059]
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3583
Proposed Rules
Federal Register
Vol. 89, No. 13
Friday, January 19, 2024
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF STATE
2 CFR Part 602
[Public Notice: 12059]
RIN 1400–AF66
Nondiscrimination in Foreign
Assistance
Department of State.
Notice of proposed rulemaking,
request for comment.
AGENCY:
ACTION:
The Foreign Assistance Act of
1961 (FAA) and other related statutes
such as the FREEDOM Support Act, the
Migration and Refugee Assistance Act of
1962, and the SEED Act of 1989,
authorize the U.S. Department of State
(Department) to provide foreign
assistance that seeks to support efforts
that would have the effect of protecting
and promoting U.S. security, prosperity,
and democratic values and shape an
international environment to improve
the lives of people around the world. To
implement the Department’s
expectation of nondiscrimination
against beneficiaries of Departmentfunded foreign assistance activities, the
Department is proposing to add a new
award term entitled ‘‘Nondiscrimination
in Foreign Assistance.’’ The proposed
award term expressly states that
recipients and subrecipients receiving
Department-funded foreign assistance
funds must not discriminate on
specified bases against beneficiaries and
potential beneficiaries or in certain
employment decisions involving
persons employed in the performance of
the grants and funded in whole or in
part with foreign assistance funds
except where target populations are
specified in the relevant Federal award.
DATES: The Department will accept
comments until March 19, 2024.
ADDRESSES: Submit comments,
identified by title of the action and
Regulatory Information Number (RIN)
by any of the following methods:
• Visit the Regulations.gov website at:
https://www.regulations.gov and search
for the Regulatory Information Number
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SUMMARY:
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(RIN) 1400–AF66 or docket number
DOS–2023–0015.
• Email: aopefagrantspolicy@
state.gov. You must include RIN 1400–
AF66 in the subject line of your
message.
• All comments should include the
commenter’s name, the organization the
commenter represents (if applicable),
and the commenter’s address. If the
Department is unable to read your
comment for any reason, and cannot
contact you for clarification, the
Department may not be able to consider
your comment. After the conclusion of
the comment period, the Department
will publish a Final Rule that will
address relevant comments as
expeditiously as possible.
• For a summary of this rulemaking,
please go to www.regulations.gov/DOS2023-0015.
FOR FURTHER INFORMATION CONTACT:
Office of the Procurement Executive,
Federal Assistance Division,
aopefagrantspolicy@state.gov, (202) 890
9795.
SUPPLEMENTARY INFORMATION: The
inclusion and equitable treatment of all
individuals, organizations, and persons
relevant to Department foreign
assistance programs is critical to
achieving effective, comprehensive, and
sustainable foreign assistance results
because it enhances the participation,
contributions, and access of the target
population. Because of this premise,
which underpins all of the Department’s
programs, the Department seeks to
ensure access for all eligible
beneficiaries of the target population
within the scope of its foreign assistance
grants and cooperative agreements
without discrimination. The Department
is embedding equity across its foreign
affairs work and raising the visibility of
inequities globally by providing equal
opportunities for all eligible
individuals, including members of
minority groups and members of other
underserved communities, through its
foreign assistance programs. The
Department seeks to improve the lives
of people around the world by being
inclusive and equitable in its foreign
assistance efforts, including its
evaluation of responses to requests for
applications, notices of funding
opportunities, etc. (‘‘applications’’).
The Department is committed to a
nondiscrimination policy in its
programs and activities and welcomes
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applications irrespective of—race,
ethnicity, color, religion, sex, gender,
sexual orientation, gender identity or
expression, sex characteristics,
pregnancy, national origin, disability,
age, genetic information, indigeneity,
marital status, parental status, political
affiliation, or veteran’s status. The
Department seeks to ensure that
applications for foreign assistance that
demonstrate that the recipients of
foreign assistance would not, in
implementation of a potential award,
discriminate against any beneficiaries of
such foreign assistance funds, based on
any of the factors listed above unless
otherwise expressly authorized in the
award or otherwise required by U.S. law
in implementation of a potential award.
Discrimination in implementation of an
award could include such actions as
withholding, adversely impacting, or
denying equitable access to the benefits
provided through the award.
Establishing clear and meaningful
nondiscrimination protections in
Department foreign assistance awards
advances U.S. foreign policy by
ensuring that U.S. foreign assistance is
inclusive and equitable by reaching all
intended beneficiaries and efficiently
accomplishing its intended objectives.
Moreover, in the judgment of the
Department of State, U.S. funding is less
effective and efficient when
discrimination prevents assistance from
reaching those who might most benefit
from such assistance—which hinders
U.S. foreign policy by excluding
individuals that the United States
intended to receive such assistance.
Nondiscrimination protections also
promote equality in the administration
of foreign assistance by requiring award
recipients to comply with a uniform
nondiscrimination standard.
Nondiscrimination protections send a
strong signal to people around the world
that equity and inclusion are values that
the United States takes seriously. They
complement and affirm other
commitments to equity in U.S. foreign
policy, maximizing their coherence and
effectiveness.
Nondiscrimination principles and
protections are essential in protecting
and advancing the human rights of all
persons and ensuring equitable access to
Department foreign assistance programs.
Recipients must adhere to this
requirement by performing the activities
as outlined in the Federal award.
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Federal Register / Vol. 89, No. 13 / Friday, January 19, 2024 / Proposed Rules
In recent years, the U.S. government
has issued multiple policy
pronouncements emphasizing equity,
fairness, and human dignity. Effective
nondiscrimination protections for
beneficiaries of foreign assistance are a
means toward achieving these
objectives. For example, in 2021, the
President issued Executive Order (E.O.)
13985 on ‘‘Advancing Racial Equity and
Support for Underserved Communities
Through the Federal Government’’; and
in 2023, the President issued E.O.
14091, ‘‘Further Advancing Racial
Equity and Support for Underserved
Communities Through the Federal
Government.’’ Furthermore, in 2011, the
President issued E.O. 13563,
‘‘Improving Regulation and Regulatory
Review,’’ which, in addition to
quantitative factors, advised that the
qualitative values of equity, fairness,
and human dignity are important
considerations in agencies’ rulemaking.
This rulemaking proposes to revise 2
CFR part 600 to add an award term at
§ 602, entitled ‘‘Nondiscrimination in
Foreign Assistance.’’ The term,
applicable to all solicitations, Federal
awards, and subawards awarded with
Department of State foreign assistance
funds, prohibits recipients and
subrecipients from discriminating
against beneficiaries or potential
beneficiaries (i.e., those individuals
intended to receive the benefits of the
award except where target populations
are specified in the relevant Federal
award) or persons employed in the
performance of the award on the basis
of any listed characteristics not
expressly stated in the award.
The purpose of this proposed
rulemaking is to ensure effective
implementation of foreign assistance
programs consistent with U.S. foreign
policy and the purposes of the FAA.
Section 101 of the FAA provides that:
‘‘[T]he Congress reaffirms the traditional
humanitarian ideals of the American
people and renews its commitment to
assist people in developing countries to
eliminate hunger, poverty, illness, and
ignorance.’’ 22 U.S.C. 2151(a).
The main effect of the proposed
award term is to ensure that the
Department’s policy and practice of
nondiscrimination in planning foreign
assistance projects and activities is
followed through to completion by the
recipients that implement them. Its
impact on recipients is to require them
to refrain from the discrimination
described in the term.
Under the statutory regime governing
foreign assistance, and consistent with
his responsibilities regarding the
conduct of U.S. foreign affairs, the
President has broad discretion to set the
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terms and conditions on which the
United States provides such assistance.
Many of the authorities provided under
the Foreign Assistance Act of 1961, and
similar statutes, explicitly allow for the
provision of assistance ‘‘on such terms
and conditions as [the President] may
determine.’’ See, e.g., section 104(c)(1)
of the FAA (22 U.S.C. 2151b(c)(1))
(health assistance); section 481(a)(4) of
the FAA (22 U.S.C. 2291(a)(4))
(counternarcotics and anti-crime
assistance); section 531 of the FAA (22
U.S.C. 2346) (assistance to promote
economic or political stability); section
541(a) of the FAA (22 U.S.C. 2347)
(International Military Education and
Training assistance); section 551 of the
FAA (22 U.S.C. 2348) (Peacekeeping
Operations); section 571 of the FAA (22
U.S.C. 2349aa) (anti-terrorism
assistance); see also section 2(c)(1) of
the MRAA; section 201 of the SEED Act
of 1989 (amending the FAA by
inserting, inter alia, section 498b(i))).
The FAA provides that ‘‘[t]he
President may exercise any functions
conferred upon him by this Act through
such agency or officer of the United
States Government as he shall direct.
The head of any such agency or such
officer may from time to time
promulgate such rules and regulations
as may be necessary to carry out such
functions. . . .’’ 22 U.S.C. 2381(a). The
Secretary of State exercises authorities
under the FAA as delegated by the
President in Executive Order 12163,
dated September 29, 1979, as amended.
That includes the President’s authority
to ‘‘issue and enforce regulations
determining the eligibility of any person
to receive funds made available under’’
the FAA. 22 U.S.C. 2381(b).
These proposed rules fall within the
Department’s authority, delegated to it
by the President, to set conditions on
the provision of foreign assistance,
including on the implementers of such
assistance. Courts have repeatedly
recognized that the President has broad
discretion in the conduct of foreign
affairs to allocate foreign assistance
funding for particular programs and to
set the conditions on U.S. funding to
implementers of those programs. See,
e.g., DKT Memorial Fund v. USAID, 887
F.2d 275, 282 (D.C. Cir. 1989); Planned
Parenthood Federation of America v.
USAID, 915 F.2d 59 (2d Cir. 1990);
Center for Reproductive Law and Policy
v. Bush, 304 F.3d 183 (2d Cir. 2002).
These courts recognized the President’s
broad discretion to allocate assistance
funding for particular programs and to
set the conditions on U.S. funding to
non-governmental implementers of
those programs. See, e.g., Planned
Parenthood v. USAID, 838 F.2d 649, 654
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(2d Cir. 1988) (in carrying out the
policies under the Foreign Assistance
Act, ‘‘AID has ‘broad discretionary
power’ to decide which, among
numerous competing projects, will be
given family planning funds’’); DKT,
887 F.2d at 282 (‘‘President acted under
a congressional grant of discretion as
broadly worded as any we are likely to
see. . . .’’).
Moreover, the Secretary has the
authority to promulgate such rules and
regulations as may be necessary to carry
out his functions and the functions of
the Department of State. See 22 U.S.C.
2651a(a)(4). This rule provides an award
requirement for award recipients to
refrain from undermining the objectives,
terms, and conditions of foreign
assistance funded activities by engaging
in conduct that interferes with its
delivery to intended beneficiaries.
Under its grantmaking authority, the
Department awards grants in the
execution of foreign assistance. Prudent
and responsible exercise of the
Department’s foreign assistance and
grantmaking authority requires that
award terms ensure that foreign
assistance reaches its intended
beneficiaries and is not thwarted by
discrimination on the bases covered in
this rule. In addition to the
Department’s authority to promulgate
regulations under the FAA, described
above, 2 CFR 200.211(c), (d), and (e)
also expressly authorize the agency to
incorporate in an award general terms
and conditions; Federal awarding
agency, program, or Federal award
specific terms and conditions; and
Federal awarding agency requirements.
Finally, in the event that any portion
of this the proposed rule as finalized is
declared invalid, the Department
intends that the various aspects be
severable; the Department would intend
the remaining features of the policy to
stand.
Regulatory Analyses
Administrative Procedure Act
Pursuant to the Administrative
Procedure Act (APA), this proposed rule
is published for public comment for a
period of 60 days, notwithstanding the
fact that this rule relates to grants and
therefore is not subject to 5 U.S.C. 553.
See 5 U.S.C. 553(a)(2).).
Executive Orders 12866 (Regulatory
Planning and Review), and 13563
(Improving Regulation and Regulatory
Review), and 14094 (Modernizing
Regulatory Review)
Executive Orders (E.O.s) 12866,
13563, and 14094 direct agencies to
assess the costs and benefits of the
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Federal Register / Vol. 89, No. 13 / Friday, January 19, 2024 / Proposed Rules
intended regulation. E.O. 13563 allows
that in making this assessment, an
agency ‘‘may consider (and discuss
qualitatively) values that are difficult or
impossible to quantify, including
equity, human dignity, fairness, and
distributive impacts.’’ The Department
has submitted this rulemaking to the
Office of Information and Regulatory
Affairs (OIRA) for review. OIRA has
designated this rulemaking a
‘‘significant regulatory action’’ under
E.O. 12866, as amended.
This rule provides a benefit by
promoting nondiscrimination in
Department of State foreign assistance,
which itself promotes programmatic
efficiency, with very little additional
administrative burden anticipated for
the affected entities, which are
Department recipients and
subrecipients. It does not require them
to carry out activities beyond those in
their cooperative agreements and grants;
it does not ask them to alter the manner
in which they conduct the work as set
out in their awards. The Department
anticipates that the benefits of the
proposed rule are realized by (1)
ensuring that grant solicitations and
resulting awards clearly notify that
recipients and subrecipients must not
discriminate against beneficiaries and
potential beneficiaries of foreign
assistance or in relation to employment
decisions to support performance of the
award; (2) avoiding proposal evaluation
costs arising from grantees who are
unwilling to provide assistance to all
intended beneficiaries; (3) helping to
ensure that foreign assistance funded
activities reach intended beneficiaries
and are not undermined by
discriminatory exclusion on the bases
identified in the rule. If, for example, an
award specified the provision of food
parcels in a certain community, the
grantee could not, on its own, decide
that only certain members of that
community should receive the food
parcels or that certain members should
be excluded. This rule makes it clear at
the inception of an award solicitation
and any resulting award the grantee is
obligated to provide services and
supplies without excluding
beneficiaries on the bases stated in the
rule.
Potential costs the Department
identifies for recipients and grantees are
for minimal training and
implementation guidance, to the extent
that recipients and grantees do not
already proscribe nondiscrimination as
part of the normal conduct of their
business operations, and potential
changes in hiring practices for certain
employees hired to support performance
of the award. For grantees/recipients
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and subrecipients, potential costs could
include creation of policies and
procedures and training on
implementation. The Department
requests comment on costs of
compliance with the provisions of this
proposed rule, including estimates of
hourly burdens and wages of employees
that may be required to implement the
rule, should it be finalized.
Including this clause in all new grants
and cooperative agreements funded by
Department of State foreign assistance
provides an explicit requirement that
the Department’s recipients and
grantees not discriminate against any
designated group or individual (except
as provided in the award) and is
particularly important in countries
where stigma and discrimination toward
certain groups is tolerated or officially
endorsed by the government. The
benefits of the rule would include
expressly reinforcing notions of equity,
fairness, and human dignity under
Federal Government grants and
cooperative agreements internationally.
Regulatory Flexibility Act
Congress enacted the Regulatory
Flexibility Act of 1980, as amended, 5
U.S.C. 601–612, to ensure that
Government regulations do not
unnecessarily or disproportionately
burden small entities. It requires a
regulatory flexibility analysis if a rule is
subject to the notice-and-comment
provisions of the APA and would have
a significant economic impact, either
detrimental or beneficial, on a
substantial number of small entities.
This rule is exempt from the notice and
comment requirements of the APA, as a
matter related to grants. See 5 U.S.C.
553(a)(2). The Department nonetheless
provides the following information for
the information of the public.
The requirement this rule would
impose on small businesses is no
different than the requirement imposed
on other entities: cooperative
agreements and grants will include an
award term clause requiring them not to
discriminate in the employment of
persons engaged directly in the
performance of the Department’s foreign
assistance cooperative agreements and
grants and not to discriminate with
respect to the intended beneficiaries of
U.S. foreign assistance except as
provided in the award. For example, an
award might be specifically for
businesses owned by women; in such a
case, it would be permissible to
‘‘discriminate in favor’’ of womenowned businesses. We do not estimate
that this will impose a significant
additional cost on recipients or
subrecipients beyond adding a brief
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reminder or discussion of this
requirement to existing trainings on
business ethics and conduct that they
provide to their staff. The Department
requests comment on this assessment.
The employees of small businesses
will be expected to be mindful of the
principles of equity, fairness, and
human dignity when performing the
work funded by taxpayer dollars, as
they have always been. The Department
anticipates that the additional effort
required by small businesses as a result
of this proposed rule is de minimis and
is not likely to impose more than a
negligible cost.
In light of the above analysis, the
Department certifies that this proposed
rule would not have a significant
economic impact on a substantial
number of small entities. The
Department welcomes comment on any
of its assessments in this section.
Unfunded Mandates Act of 1995
The Unfunded Mandates Act of 1995
requires agencies to prepare several
analytical statements before proposing
any rule that may result in annual
expenditures of $100 million or more in
State, local, or Indian Tribal
governments or the private sector. Since
this final rule will not result in
expenditures of this magnitude, the
Department certifies that such
statements are not necessary.
Executive Orders 12372 and 13132—
Federalism
This regulation will not have
substantial direct effects on the states,
on the relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to require consultations or
warrant the preparation of a federalism
summary impact statement. The
regulations implementing E.O. 12372
regarding intergovernmental
consultation on Federal programs and
activities do not apply to this regulation.
Executive Order 13175—Consultation
With Tribal Governments
The Department has determined that
this rulemaking will not have Tribal
implications, will not impose
substantial direct compliance costs on
Indian Tribal governments, and will not
preempt Tribal law. Accordingly, the
requirements of E.O. 13175 do not apply
to this proposed rule.
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Federal Register / Vol. 89, No. 13 / Friday, January 19, 2024 / Proposed Rules
Paperwork Reduction Act
The Department believes that the
number of respondents submitting
reports pursuant to this rulemaking will
be low, possibly under the ‘‘10
respondents per year’’ that would trigger
the Paperwork Reduction Act.
Nevertheless, the Department provides
the following information, using a figure
of ‘‘10 respondents’’ to calculate burden.
The Department anticipates that the
burden per response would be one hour,
yielding a total burden of 10 hours for
this rulemaking. The Department invites
public comment on these figures.
Title of Information Collection:
Nondiscrimination in Foreign
Assistance.
OMB Control Number: 1405–XXXX.
Type of Request: New collection.
Originating Office: Department of
State, A/OPE.
Form Number: No form.
Respondents: Offerors and awardees
of Department of State foreign
assistance.
Estimated Number of Respondents:
10.
Estimated Number of Responses: 10.
Average Time per Response: One
hour.
Total Estimated Burden Time: 10
hours.
Frequency: On occasion.
Obligation to Respond: Mandatory.
§ 602.20
Policy.
Authority: 5 U.S.C. 301; 22 U.S.C. 2651a,
22 U.S.C. 2151, 22 U.S.C. 2451, 22 U.S.C.
1461, 2 CFR part 200.
(a) Nondiscrimination is essential in
protecting and advancing the human
rights of all persons and ensuring
equitable access to Department of State
federally funded foreign assistance
programs. The Department of State is
committed to a policy of nondiscrimination on the basis of race,
ethnicity, color, religion, sex, gender,
sexual orientation, gender identity or
expression, sex characteristics,
pregnancy, national origin, disability,
age, genetic information, indigeneity,
marital status, parental status, political
affiliation, or veteran’s status.
(b) In each Federal award (e.g., grant
or cooperative agreement) under which
funding is provided to a non-Federal
entity or a Foreign Public Entity (such
as a public research university, public
hospital, etc.), the Department will
include an award term that authorizes
action up to and including termination
of the award, without penalty, if the
recipient or a subrecipient
discriminates, and fails to remedy in a
manner reasonably acceptable to the
Department, on the basis of race,
ethnicity, color, religion, sex, sexual
orientation, gender, gender identity or
gender expression, sex characteristics,
pregnancy, national origin, disability,
age, genetic information, indigeneity,
marital status, parental status, political
affiliation, or veteran’s status or any
factor not expressly stated in the award,
against:
(1) any beneficiary or potential
beneficiary of the foreign assistance
provided in performance of the award,
such as, but not limited to, by
withholding, adversely impacting, or
denying equitable access to the benefits
of foreign assistance; or
(2) any employee, agent, or candidate
for a position, who is or will be engaged
directly in the performance of this
award and whose work will be
subsidized in whole or in part by
Federal foreign assistance funds under
this award, unless expressly permitted
by applicable U.S. law.
§ 602.10
§ 602.30
List of Subjects in 2 CFR Part 602
Administrative practice and
procedure, Grant programs.
For the reasons set forth above, the
Department of State proposes to add
part 602 to title 2 of the Code of Federal
Regulations to read as follows:
PART 602—NONDISCRIMINATION IN
FOREIGN ASSISTANCE
Sec.
602.10
602.20
602.30
602.40
602.50
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the activity as defined in the Federal
award.
Purpose of this part.
Policy.
Waiver.
Award term.
Referral.
Purpose of this part.
This part establishes policy and an
award term for Federal awards
subsidized in whole or in part by
Department of State foreign assistance
funds that states that recipients and
subrecipients must not discriminate
against beneficiaries and potential
beneficiaries of foreign assistance or in
relation to employment decisions to
support performance of the award, in
any way that is contrary to the scope of
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Waiver.
(a) The Grants Officer, with written
concurrence from the Bureau’s Assistant
Secretary, Chief of Mission, or other
similar management units may waive
the application of the requirements at
paragraph (a)(2) of § 602.40,
Nondiscrimination in Foreign
Assistance, if it is determined to be in
the best interest of the U.S. government.
Such determinations will take into
account the totality of the
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circumstances, including, but not
limited to, whether the waiver is
requested as an accommodation to
comply with applicable foreign laws,
edicts, or decrees.
(b) The recipient shall submit any
request for a waiver of the requirements
of the paragraph at § 602.40(a)(2) in
writing to the Grants Officer, and with
sufficient justification for a
determination, prior to award or
thereafter by mutual agreement between
the parties.
(c) If approved pursuant to this
section, the Grants Officer shall
specifically denote the inapplicability of
the paragraph at § 602.40(a)(2) in the
Federal award.
(d) Upon making a determination to
waive the requirements at § 602.40(a)(2)
pursuant to this section, the Grants
Officer shall notify the Assistant
Secretary of the Bureau for Democracy,
Human Rights, and Labor, or their
designee in writing within 30 days.
(e) Nothing in any such waiver
approved pursuant to this section shall
negate any of the other requirements of
§ 602.40.
§ 602.40
Award term.
The following term will be
incorporated in Department of State
Federal awards as applicable:
Nondiscrimination in Foreign
Assistance (Date)
a. Department of State policy requires
that the recipient or grantee not
discriminate on the basis of race,
ethnicity, color, religion, sex, gender,
sexual orientation, gender identity or
expression, sex characteristics,
pregnancy, national origin, disability,
age, genetic information, indigeneity,
marital status, parental status, political
affiliation, or veteran’s status or any
factor not expressly stated as
permissible in the award, against:
1. any beneficiary or potential
beneficiary of the foreign assistance
provided in performance of the award,
such as, but not limited to, by
withholding, adversely impacting, or
denying equitable access to the benefits
of foreign assistance; and
2. any employee, agent, or candidate
for a position, who is or will be engaged
directly in the performance of this
award and whose work will be
subsidized in whole or in part by
Federal foreign assistance funds under
this award, unless expressly permitted
by applicable U.S. law.
b. Nothing in this award term is
intended to limit the ability of a
recipient to target activities toward the
assistance needs of certain populations
as defined in the award.
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c. The recipient shall post in
conspicuous places available to
employees and beneficiaries in their
predominant languages the notices to be
provided by the Department of State
regarding the nondiscrimination policy
implemented in this award term.
d. The recipient shall notify
beneficiaries and prospective
beneficiaries that the recipient is
prohibited from discriminating on the
basis of race, ethnicity, color, religion,
sex, gender, sexual orientation, gender
identity or expression, sex
characteristics, pregnancy, national
origin, disability, age, genetic
information, indigeneity, marital status,
parental status, political affiliation, or
veteran’s status. The notice shall
include information (telephone
numbers, email addresses, and mailing
addresses) necessary to contact the
Department of State Inspector General’s
Fraud, Waste, and Abuse hotline to
report potential violations of this award
term.
e. The recipient shall take such action
with respect to any subaward or
contract as the Department of State may
direct as a means of enforcing this
award term, including terminating for
noncompliance.
f. The recipient shall:
1. Notify its employees and agents of:
i. The policy prohibiting
discrimination, described in paragraph
(a) of this award term; and
ii. The actions that will be taken
against employees or agents for
violations of this policy. Such actions
for employees may include, but are not
limited to, removal from the award,
reduction in benefits, or termination of
employment; and
2. Take appropriate action, up to and
including termination, against
employees, agents, or subrecipients that
violate the policy in paragraph (a) of
this clause.
g. Notification.
1. The recipient shall inform the
Grants Officer, Grants Officer
Representative, and the Department of
State Inspector General immediately of:
i. Any credible information it receives
from any source (including host country
law enforcement) that alleges an
employee of the recipient, subrecipient
entity, an employee of a subrecipient, or
their agent has engaged in conduct that
violates the policy in paragraph (a) of
this award term; and
ii. Any actions taken against an
employee of the recipient, subrecipient
entity, an employee of a subrecipient
employee, or their agent pursuant to this
award term.
2. If the allegation may be associated
with more than one award, the recipient
VerDate Sep<11>2014
17:35 Jan 18, 2024
Jkt 262001
shall inform the Grants Officer for the
award with the highest dollar value.
h. Remedies. In addition to other
remedies available to the U.S.
Government, the recipient’s failure to
comply with the requirements of this
award term may result in:
1. Requiring the recipient to remove
an employee or subrecipient employee
from the performance of the award;
2. Requiring the award recipient to
terminate a subaward;
3. Suspension of award payments
until the recipient has taken appropriate
remedial action;
4. Declining to exercise available
options under the award;
5. Termination of the award for
default or cause, in accordance with the
Department of State Standard Terms
and Conditions for Federal Awards; or
6. Suspension or debarment.
i. The recipient must insert this award
term, modified as appropriate or
necessary to identify the parties,
including this paragraph, in all
subawards under this award.
(End of award term)
§ 602.50
Referral.
A Department official will inform the
Department’s suspension and
debarment official if an award is
terminated based on a violation of a
prohibition contained in the award term
under § 602.40.
Kevin E. Bryant,
Deputy Director, Office of Directives
Management, Department of State.
[FR Doc. 2024–01059 Filed 1–18–24; 8:45 am]
BILLING CODE 4710–24–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Parts 166 and 167
[Docket No. USCG–2019–0279]
RIN 1625–AC57
Shipping Safety Fairways Along the
Atlantic Coast
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Coast Guard is proposing
to establish shipping safety fairways
(‘‘fairways’’) along the Atlantic Coast of
the United States, identified in the
Atlantic Coast Port Access Route Study.
Fairways would preserve the safe and
reliable transit of vessels along wellestablished traffic patterns and routes.
While vessels are not required to use
SUMMARY:
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
3587
them, fairways are designed to keep
traditional navigation routes free from
fixed structures that could impact
navigation safety and impede other
shared offshore activities. The Coast
Guard recognizes that there is increasing
interest in offshore commercial
development, including offshore
renewable energy installations, and
believes this development is best served
by the establishment of consistent and
well-defined fairways. The proposed
fairways would help ensure that
offshore developments remain viable by
allowing developers to construct and
maintain installations without risk of
impeding vessel traffic. The Coast Guard
is also proposing to establish traffic
separation schemes and precautionary
areas along the Atlantic coast to further
improve navigation safety.
DATES: Comments and related material
must be received by the Coast Guard on
or before April 18, 2024.
ADDRESSES: You may submit comments
identified by docket number USCG–
2019–0279 using the Federal Decision
Making Portal at www.regulations.gov.
See the ‘‘Public Participation and
Request for Comments’’ portion of the
SUPPLEMENTARY INFORMATION section for
further instructions on submitting
comments.
FOR FURTHER INFORMATION CONTACT: For
information about this document call or
email Maureen Kallgren, Coast Guard;
telephone 202–372–1561, email
Maureen.R.Kallgren@uscg.mil.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Public Participation and Request for
Comments
II. Abbreviations
III. Basis and Purpose
IV. Background
V. Discussion of ANPRM Comments
VI. Discussion of Proposed Rule
VII. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards
M. Environment
I. Public Participation and Request for
Comments
The Coast Guard views public
participation as essential to effective
rulemaking and will consider all
comments and material received during
the comment period. Your comment can
E:\FR\FM\19JAP1.SGM
19JAP1
Agencies
[Federal Register Volume 89, Number 13 (Friday, January 19, 2024)]
[Proposed Rules]
[Pages 3583-3587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01059]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 89, No. 13 / Friday, January 19, 2024 /
Proposed Rules
[[Page 3583]]
DEPARTMENT OF STATE
2 CFR Part 602
[Public Notice: 12059]
RIN 1400-AF66
Nondiscrimination in Foreign Assistance
AGENCY: Department of State.
ACTION: Notice of proposed rulemaking, request for comment.
-----------------------------------------------------------------------
SUMMARY: The Foreign Assistance Act of 1961 (FAA) and other related
statutes such as the FREEDOM Support Act, the Migration and Refugee
Assistance Act of 1962, and the SEED Act of 1989, authorize the U.S.
Department of State (Department) to provide foreign assistance that
seeks to support efforts that would have the effect of protecting and
promoting U.S. security, prosperity, and democratic values and shape an
international environment to improve the lives of people around the
world. To implement the Department's expectation of nondiscrimination
against beneficiaries of Department-funded foreign assistance
activities, the Department is proposing to add a new award term
entitled ``Nondiscrimination in Foreign Assistance.'' The proposed
award term expressly states that recipients and subrecipients receiving
Department-funded foreign assistance funds must not discriminate on
specified bases against beneficiaries and potential beneficiaries or in
certain employment decisions involving persons employed in the
performance of the grants and funded in whole or in part with foreign
assistance funds except where target populations are specified in the
relevant Federal award.
DATES: The Department will accept comments until March 19, 2024.
ADDRESSES: Submit comments, identified by title of the action and
Regulatory Information Number (RIN) by any of the following methods:
Visit the Regulations.gov website at: https://www.regulations.gov and search for the Regulatory Information Number
(RIN) 1400-AF66 or docket number DOS-2023-0015.
Email: [email protected]. You must include RIN
1400-AF66 in the subject line of your message.
All comments should include the commenter's name, the
organization the commenter represents (if applicable), and the
commenter's address. If the Department is unable to read your comment
for any reason, and cannot contact you for clarification, the
Department may not be able to consider your comment. After the
conclusion of the comment period, the Department will publish a Final
Rule that will address relevant comments as expeditiously as possible.
For a summary of this rulemaking, please go to
www.regulations.gov/DOS-2023-0015.
FOR FURTHER INFORMATION CONTACT: Office of the Procurement Executive,
Federal Assistance Division, [email protected], (202) 890
9795.
SUPPLEMENTARY INFORMATION: The inclusion and equitable treatment of all
individuals, organizations, and persons relevant to Department foreign
assistance programs is critical to achieving effective, comprehensive,
and sustainable foreign assistance results because it enhances the
participation, contributions, and access of the target population.
Because of this premise, which underpins all of the Department's
programs, the Department seeks to ensure access for all eligible
beneficiaries of the target population within the scope of its foreign
assistance grants and cooperative agreements without discrimination.
The Department is embedding equity across its foreign affairs work and
raising the visibility of inequities globally by providing equal
opportunities for all eligible individuals, including members of
minority groups and members of other underserved communities, through
its foreign assistance programs. The Department seeks to improve the
lives of people around the world by being inclusive and equitable in
its foreign assistance efforts, including its evaluation of responses
to requests for applications, notices of funding opportunities, etc.
(``applications'').
The Department is committed to a nondiscrimination policy in its
programs and activities and welcomes applications irrespective of--
race, ethnicity, color, religion, sex, gender, sexual orientation,
gender identity or expression, sex characteristics, pregnancy, national
origin, disability, age, genetic information, indigeneity, marital
status, parental status, political affiliation, or veteran's status.
The Department seeks to ensure that applications for foreign assistance
that demonstrate that the recipients of foreign assistance would not,
in implementation of a potential award, discriminate against any
beneficiaries of such foreign assistance funds, based on any of the
factors listed above unless otherwise expressly authorized in the award
or otherwise required by U.S. law in implementation of a potential
award. Discrimination in implementation of an award could include such
actions as withholding, adversely impacting, or denying equitable
access to the benefits provided through the award.
Establishing clear and meaningful nondiscrimination protections in
Department foreign assistance awards advances U.S. foreign policy by
ensuring that U.S. foreign assistance is inclusive and equitable by
reaching all intended beneficiaries and efficiently accomplishing its
intended objectives. Moreover, in the judgment of the Department of
State, U.S. funding is less effective and efficient when discrimination
prevents assistance from reaching those who might most benefit from
such assistance--which hinders U.S. foreign policy by excluding
individuals that the United States intended to receive such assistance.
Nondiscrimination protections also promote equality in the
administration of foreign assistance by requiring award recipients to
comply with a uniform nondiscrimination standard. Nondiscrimination
protections send a strong signal to people around the world that equity
and inclusion are values that the United States takes seriously. They
complement and affirm other commitments to equity in U.S. foreign
policy, maximizing their coherence and effectiveness.
Nondiscrimination principles and protections are essential in
protecting and advancing the human rights of all persons and ensuring
equitable access to Department foreign assistance programs. Recipients
must adhere to this requirement by performing the activities as
outlined in the Federal award.
[[Page 3584]]
In recent years, the U.S. government has issued multiple policy
pronouncements emphasizing equity, fairness, and human dignity.
Effective nondiscrimination protections for beneficiaries of foreign
assistance are a means toward achieving these objectives. For example,
in 2021, the President issued Executive Order (E.O.) 13985 on
``Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government''; and in 2023, the President issued
E.O. 14091, ``Further Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government.'' Furthermore,
in 2011, the President issued E.O. 13563, ``Improving Regulation and
Regulatory Review,'' which, in addition to quantitative factors,
advised that the qualitative values of equity, fairness, and human
dignity are important considerations in agencies' rulemaking.
This rulemaking proposes to revise 2 CFR part 600 to add an award
term at Sec. 602, entitled ``Nondiscrimination in Foreign
Assistance.'' The term, applicable to all solicitations, Federal
awards, and subawards awarded with Department of State foreign
assistance funds, prohibits recipients and subrecipients from
discriminating against beneficiaries or potential beneficiaries (i.e.,
those individuals intended to receive the benefits of the award except
where target populations are specified in the relevant Federal award)
or persons employed in the performance of the award on the basis of any
listed characteristics not expressly stated in the award.
The purpose of this proposed rulemaking is to ensure effective
implementation of foreign assistance programs consistent with U.S.
foreign policy and the purposes of the FAA. Section 101 of the FAA
provides that: ``[T]he Congress reaffirms the traditional humanitarian
ideals of the American people and renews its commitment to assist
people in developing countries to eliminate hunger, poverty, illness,
and ignorance.'' 22 U.S.C. 2151(a).
The main effect of the proposed award term is to ensure that the
Department's policy and practice of nondiscrimination in planning
foreign assistance projects and activities is followed through to
completion by the recipients that implement them. Its impact on
recipients is to require them to refrain from the discrimination
described in the term.
Under the statutory regime governing foreign assistance, and
consistent with his responsibilities regarding the conduct of U.S.
foreign affairs, the President has broad discretion to set the terms
and conditions on which the United States provides such assistance.
Many of the authorities provided under the Foreign Assistance Act of
1961, and similar statutes, explicitly allow for the provision of
assistance ``on such terms and conditions as [the President] may
determine.'' See, e.g., section 104(c)(1) of the FAA (22 U.S.C.
2151b(c)(1)) (health assistance); section 481(a)(4) of the FAA (22
U.S.C. 2291(a)(4)) (counternarcotics and anti-crime assistance);
section 531 of the FAA (22 U.S.C. 2346) (assistance to promote economic
or political stability); section 541(a) of the FAA (22 U.S.C. 2347)
(International Military Education and Training assistance); section 551
of the FAA (22 U.S.C. 2348) (Peacekeeping Operations); section 571 of
the FAA (22 U.S.C. 2349aa) (anti-terrorism assistance); see also
section 2(c)(1) of the MRAA; section 201 of the SEED Act of 1989
(amending the FAA by inserting, inter alia, section 498b(i))).
The FAA provides that ``[t]he President may exercise any functions
conferred upon him by this Act through such agency or officer of the
United States Government as he shall direct. The head of any such
agency or such officer may from time to time promulgate such rules and
regulations as may be necessary to carry out such functions. . . .'' 22
U.S.C. 2381(a). The Secretary of State exercises authorities under the
FAA as delegated by the President in Executive Order 12163, dated
September 29, 1979, as amended. That includes the President's authority
to ``issue and enforce regulations determining the eligibility of any
person to receive funds made available under'' the FAA. 22 U.S.C.
2381(b).
These proposed rules fall within the Department's authority,
delegated to it by the President, to set conditions on the provision of
foreign assistance, including on the implementers of such assistance.
Courts have repeatedly recognized that the President has broad
discretion in the conduct of foreign affairs to allocate foreign
assistance funding for particular programs and to set the conditions on
U.S. funding to implementers of those programs. See, e.g., DKT Memorial
Fund v. USAID, 887 F.2d 275, 282 (D.C. Cir. 1989); Planned Parenthood
Federation of America v. USAID, 915 F.2d 59 (2d Cir. 1990); Center for
Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002). These
courts recognized the President's broad discretion to allocate
assistance funding for particular programs and to set the conditions on
U.S. funding to non-governmental implementers of those programs. See,
e.g., Planned Parenthood v. USAID, 838 F.2d 649, 654 (2d Cir. 1988) (in
carrying out the policies under the Foreign Assistance Act, ``AID has
`broad discretionary power' to decide which, among numerous competing
projects, will be given family planning funds''); DKT, 887 F.2d at 282
(``President acted under a congressional grant of discretion as broadly
worded as any we are likely to see. . . .'').
Moreover, the Secretary has the authority to promulgate such rules
and regulations as may be necessary to carry out his functions and the
functions of the Department of State. See 22 U.S.C. 2651a(a)(4). This
rule provides an award requirement for award recipients to refrain from
undermining the objectives, terms, and conditions of foreign assistance
funded activities by engaging in conduct that interferes with its
delivery to intended beneficiaries. Under its grantmaking authority,
the Department awards grants in the execution of foreign assistance.
Prudent and responsible exercise of the Department's foreign assistance
and grantmaking authority requires that award terms ensure that foreign
assistance reaches its intended beneficiaries and is not thwarted by
discrimination on the bases covered in this rule. In addition to the
Department's authority to promulgate regulations under the FAA,
described above, 2 CFR 200.211(c), (d), and (e) also expressly
authorize the agency to incorporate in an award general terms and
conditions; Federal awarding agency, program, or Federal award specific
terms and conditions; and Federal awarding agency requirements.
Finally, in the event that any portion of this the proposed rule as
finalized is declared invalid, the Department intends that the various
aspects be severable; the Department would intend the remaining
features of the policy to stand.
Regulatory Analyses
Administrative Procedure Act
Pursuant to the Administrative Procedure Act (APA), this proposed
rule is published for public comment for a period of 60 days,
notwithstanding the fact that this rule relates to grants and therefore
is not subject to 5 U.S.C. 553. See 5 U.S.C. 553(a)(2).).
Executive Orders 12866 (Regulatory Planning and Review), and 13563
(Improving Regulation and Regulatory Review), and 14094 (Modernizing
Regulatory Review)
Executive Orders (E.O.s) 12866, 13563, and 14094 direct agencies to
assess the costs and benefits of the
[[Page 3585]]
intended regulation. E.O. 13563 allows that in making this assessment,
an agency ``may consider (and discuss qualitatively) values that are
difficult or impossible to quantify, including equity, human dignity,
fairness, and distributive impacts.'' The Department has submitted this
rulemaking to the Office of Information and Regulatory Affairs (OIRA)
for review. OIRA has designated this rulemaking a ``significant
regulatory action'' under E.O. 12866, as amended.
This rule provides a benefit by promoting nondiscrimination in
Department of State foreign assistance, which itself promotes
programmatic efficiency, with very little additional administrative
burden anticipated for the affected entities, which are Department
recipients and subrecipients. It does not require them to carry out
activities beyond those in their cooperative agreements and grants; it
does not ask them to alter the manner in which they conduct the work as
set out in their awards. The Department anticipates that the benefits
of the proposed rule are realized by (1) ensuring that grant
solicitations and resulting awards clearly notify that recipients and
subrecipients must not discriminate against beneficiaries and potential
beneficiaries of foreign assistance or in relation to employment
decisions to support performance of the award; (2) avoiding proposal
evaluation costs arising from grantees who are unwilling to provide
assistance to all intended beneficiaries; (3) helping to ensure that
foreign assistance funded activities reach intended beneficiaries and
are not undermined by discriminatory exclusion on the bases identified
in the rule. If, for example, an award specified the provision of food
parcels in a certain community, the grantee could not, on its own,
decide that only certain members of that community should receive the
food parcels or that certain members should be excluded. This rule
makes it clear at the inception of an award solicitation and any
resulting award the grantee is obligated to provide services and
supplies without excluding beneficiaries on the bases stated in the
rule.
Potential costs the Department identifies for recipients and
grantees are for minimal training and implementation guidance, to the
extent that recipients and grantees do not already proscribe
nondiscrimination as part of the normal conduct of their business
operations, and potential changes in hiring practices for certain
employees hired to support performance of the award. For grantees/
recipients and subrecipients, potential costs could include creation of
policies and procedures and training on implementation. The Department
requests comment on costs of compliance with the provisions of this
proposed rule, including estimates of hourly burdens and wages of
employees that may be required to implement the rule, should it be
finalized.
Including this clause in all new grants and cooperative agreements
funded by Department of State foreign assistance provides an explicit
requirement that the Department's recipients and grantees not
discriminate against any designated group or individual (except as
provided in the award) and is particularly important in countries where
stigma and discrimination toward certain groups is tolerated or
officially endorsed by the government. The benefits of the rule would
include expressly reinforcing notions of equity, fairness, and human
dignity under Federal Government grants and cooperative agreements
internationally.
Regulatory Flexibility Act
Congress enacted the Regulatory Flexibility Act of 1980, as
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not
unnecessarily or disproportionately burden small entities. It requires
a regulatory flexibility analysis if a rule is subject to the notice-
and-comment provisions of the APA and would have a significant economic
impact, either detrimental or beneficial, on a substantial number of
small entities. This rule is exempt from the notice and comment
requirements of the APA, as a matter related to grants. See 5 U.S.C.
553(a)(2). The Department nonetheless provides the following
information for the information of the public.
The requirement this rule would impose on small businesses is no
different than the requirement imposed on other entities: cooperative
agreements and grants will include an award term clause requiring them
not to discriminate in the employment of persons engaged directly in
the performance of the Department's foreign assistance cooperative
agreements and grants and not to discriminate with respect to the
intended beneficiaries of U.S. foreign assistance except as provided in
the award. For example, an award might be specifically for businesses
owned by women; in such a case, it would be permissible to
``discriminate in favor'' of women-owned businesses. We do not estimate
that this will impose a significant additional cost on recipients or
subrecipients beyond adding a brief reminder or discussion of this
requirement to existing trainings on business ethics and conduct that
they provide to their staff. The Department requests comment on this
assessment.
The employees of small businesses will be expected to be mindful of
the principles of equity, fairness, and human dignity when performing
the work funded by taxpayer dollars, as they have always been. The
Department anticipates that the additional effort required by small
businesses as a result of this proposed rule is de minimis and is not
likely to impose more than a negligible cost.
In light of the above analysis, the Department certifies that this
proposed rule would not have a significant economic impact on a
substantial number of small entities. The Department welcomes comment
on any of its assessments in this section.
Unfunded Mandates Act of 1995
The Unfunded Mandates Act of 1995 requires agencies to prepare
several analytical statements before proposing any rule that may result
in annual expenditures of $100 million or more in State, local, or
Indian Tribal governments or the private sector. Since this final rule
will not result in expenditures of this magnitude, the Department
certifies that such statements are not necessary.
Executive Orders 12372 and 13132--Federalism
This regulation will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement. The
regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
regulation.
Executive Order 13175--Consultation With Tribal Governments
The Department has determined that this rulemaking will not have
Tribal implications, will not impose substantial direct compliance
costs on Indian Tribal governments, and will not preempt Tribal law.
Accordingly, the requirements of E.O. 13175 do not apply to this
proposed rule.
[[Page 3586]]
Paperwork Reduction Act
The Department believes that the number of respondents submitting
reports pursuant to this rulemaking will be low, possibly under the
``10 respondents per year'' that would trigger the Paperwork Reduction
Act. Nevertheless, the Department provides the following information,
using a figure of ``10 respondents'' to calculate burden. The
Department anticipates that the burden per response would be one hour,
yielding a total burden of 10 hours for this rulemaking. The Department
invites public comment on these figures.
Title of Information Collection: Nondiscrimination in Foreign
Assistance.
OMB Control Number: 1405-XXXX.
Type of Request: New collection.
Originating Office: Department of State, A/OPE.
Form Number: No form.
Respondents: Offerors and awardees of Department of State foreign
assistance.
Estimated Number of Respondents: 10.
Estimated Number of Responses: 10.
Average Time per Response: One hour.
Total Estimated Burden Time: 10 hours.
Frequency: On occasion.
Obligation to Respond: Mandatory.
List of Subjects in 2 CFR Part 602
Administrative practice and procedure, Grant programs.
For the reasons set forth above, the Department of State proposes
to add part 602 to title 2 of the Code of Federal Regulations to read
as follows:
PART 602--NONDISCRIMINATION IN FOREIGN ASSISTANCE
Sec.
602.10 Purpose of this part.
602.20 Policy.
602.30 Waiver.
602.40 Award term.
602.50 Referral.
Authority: 5 U.S.C. 301; 22 U.S.C. 2651a, 22 U.S.C. 2151, 22
U.S.C. 2451, 22 U.S.C. 1461, 2 CFR part 200.
Sec. 602.10 Purpose of this part.
This part establishes policy and an award term for Federal awards
subsidized in whole or in part by Department of State foreign
assistance funds that states that recipients and subrecipients must not
discriminate against beneficiaries and potential beneficiaries of
foreign assistance or in relation to employment decisions to support
performance of the award, in any way that is contrary to the scope of
the activity as defined in the Federal award.
Sec. 602.20 Policy.
(a) Nondiscrimination is essential in protecting and advancing the
human rights of all persons and ensuring equitable access to Department
of State federally funded foreign assistance programs. The Department
of State is committed to a policy of non-discrimination on the basis of
race, ethnicity, color, religion, sex, gender, sexual orientation,
gender identity or expression, sex characteristics, pregnancy, national
origin, disability, age, genetic information, indigeneity, marital
status, parental status, political affiliation, or veteran's status.
(b) In each Federal award (e.g., grant or cooperative agreement)
under which funding is provided to a non-Federal entity or a Foreign
Public Entity (such as a public research university, public hospital,
etc.), the Department will include an award term that authorizes action
up to and including termination of the award, without penalty, if the
recipient or a subrecipient discriminates, and fails to remedy in a
manner reasonably acceptable to the Department, on the basis of race,
ethnicity, color, religion, sex, sexual orientation, gender, gender
identity or gender expression, sex characteristics, pregnancy, national
origin, disability, age, genetic information, indigeneity, marital
status, parental status, political affiliation, or veteran's status or
any factor not expressly stated in the award, against:
(1) any beneficiary or potential beneficiary of the foreign
assistance provided in performance of the award, such as, but not
limited to, by withholding, adversely impacting, or denying equitable
access to the benefits of foreign assistance; or
(2) any employee, agent, or candidate for a position, who is or
will be engaged directly in the performance of this award and whose
work will be subsidized in whole or in part by Federal foreign
assistance funds under this award, unless expressly permitted by
applicable U.S. law.
Sec. 602.30 Waiver.
(a) The Grants Officer, with written concurrence from the Bureau's
Assistant Secretary, Chief of Mission, or other similar management
units may waive the application of the requirements at paragraph (a)(2)
of Sec. 602.40, Nondiscrimination in Foreign Assistance, if it is
determined to be in the best interest of the U.S. government. Such
determinations will take into account the totality of the
circumstances, including, but not limited to, whether the waiver is
requested as an accommodation to comply with applicable foreign laws,
edicts, or decrees.
(b) The recipient shall submit any request for a waiver of the
requirements of the paragraph at Sec. 602.40(a)(2) in writing to the
Grants Officer, and with sufficient justification for a determination,
prior to award or thereafter by mutual agreement between the parties.
(c) If approved pursuant to this section, the Grants Officer shall
specifically denote the inapplicability of the paragraph at Sec.
602.40(a)(2) in the Federal award.
(d) Upon making a determination to waive the requirements at Sec.
602.40(a)(2) pursuant to this section, the Grants Officer shall notify
the Assistant Secretary of the Bureau for Democracy, Human Rights, and
Labor, or their designee in writing within 30 days.
(e) Nothing in any such waiver approved pursuant to this section
shall negate any of the other requirements of Sec. 602.40.
Sec. 602.40 Award term.
The following term will be incorporated in Department of State
Federal awards as applicable:
Nondiscrimination in Foreign Assistance (Date)
a. Department of State policy requires that the recipient or
grantee not discriminate on the basis of race, ethnicity, color,
religion, sex, gender, sexual orientation, gender identity or
expression, sex characteristics, pregnancy, national origin,
disability, age, genetic information, indigeneity, marital status,
parental status, political affiliation, or veteran's status or any
factor not expressly stated as permissible in the award, against:
1. any beneficiary or potential beneficiary of the foreign
assistance provided in performance of the award, such as, but not
limited to, by withholding, adversely impacting, or denying equitable
access to the benefits of foreign assistance; and
2. any employee, agent, or candidate for a position, who is or will
be engaged directly in the performance of this award and whose work
will be subsidized in whole or in part by Federal foreign assistance
funds under this award, unless expressly permitted by applicable U.S.
law.
b. Nothing in this award term is intended to limit the ability of a
recipient to target activities toward the assistance needs of certain
populations as defined in the award.
[[Page 3587]]
c. The recipient shall post in conspicuous places available to
employees and beneficiaries in their predominant languages the notices
to be provided by the Department of State regarding the
nondiscrimination policy implemented in this award term.
d. The recipient shall notify beneficiaries and prospective
beneficiaries that the recipient is prohibited from discriminating on
the basis of race, ethnicity, color, religion, sex, gender, sexual
orientation, gender identity or expression, sex characteristics,
pregnancy, national origin, disability, age, genetic information,
indigeneity, marital status, parental status, political affiliation, or
veteran's status. The notice shall include information (telephone
numbers, email addresses, and mailing addresses) necessary to contact
the Department of State Inspector General's Fraud, Waste, and Abuse
hotline to report potential violations of this award term.
e. The recipient shall take such action with respect to any
subaward or contract as the Department of State may direct as a means
of enforcing this award term, including terminating for noncompliance.
f. The recipient shall:
1. Notify its employees and agents of:
i. The policy prohibiting discrimination, described in paragraph
(a) of this award term; and
ii. The actions that will be taken against employees or agents for
violations of this policy. Such actions for employees may include, but
are not limited to, removal from the award, reduction in benefits, or
termination of employment; and
2. Take appropriate action, up to and including termination,
against employees, agents, or subrecipients that violate the policy in
paragraph (a) of this clause.
g. Notification.
1. The recipient shall inform the Grants Officer, Grants Officer
Representative, and the Department of State Inspector General
immediately of:
i. Any credible information it receives from any source (including
host country law enforcement) that alleges an employee of the
recipient, subrecipient entity, an employee of a subrecipient, or their
agent has engaged in conduct that violates the policy in paragraph (a)
of this award term; and
ii. Any actions taken against an employee of the recipient,
subrecipient entity, an employee of a subrecipient employee, or their
agent pursuant to this award term.
2. If the allegation may be associated with more than one award,
the recipient shall inform the Grants Officer for the award with the
highest dollar value.
h. Remedies. In addition to other remedies available to the U.S.
Government, the recipient's failure to comply with the requirements of
this award term may result in:
1. Requiring the recipient to remove an employee or subrecipient
employee from the performance of the award;
2. Requiring the award recipient to terminate a subaward;
3. Suspension of award payments until the recipient has taken
appropriate remedial action;
4. Declining to exercise available options under the award;
5. Termination of the award for default or cause, in accordance
with the Department of State Standard Terms and Conditions for Federal
Awards; or
6. Suspension or debarment.
i. The recipient must insert this award term, modified as
appropriate or necessary to identify the parties, including this
paragraph, in all subawards under this award.
(End of award term)
Sec. 602.50 Referral.
A Department official will inform the Department's suspension and
debarment official if an award is terminated based on a violation of a
prohibition contained in the award term under Sec. 602.40.
Kevin E. Bryant,
Deputy Director, Office of Directives Management, Department of State.
[FR Doc. 2024-01059 Filed 1-18-24; 8:45 am]
BILLING CODE 4710-24-P