National Policy Requirements: General Award Terms and Conditions
Proposed rule.
CFR Part: "2 CFR Part 1122"
RIN Number: "RIN 0790-AJ48"
Citation: "81 FR 78376"
Document Number: "
Page Number: "78376"
"Proposed Rules"
SUMMARY: This notice of proposed rulemaking (NPRM) is the fourth of a sequence of six NPRM documents in this issue of the
EFFECTIVE DATE: To ensure that they can be considered in developing the final rule, comments must be received at either the Web site or mailing address indicated below by
ADDRESSES: You may submit comments identified by docket number, or by Regulatory Information Number (RIN) and title, by either of the following methods:
The Web site: http://www.regulations.gov. Follow the instructions at that site for submitting comments.
Mail:
Instructions: All submissions received must include the agency name and docket number or RIN for this
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of the Regulatory Action
1. The Need for the Regulatory Action and How the Action Meets That Need
As explained in the Supplementary Information section of the first of the sequence of NPRMs in this section of this issue of the
Important context for this NPRM is provided by the second NPRM in this section of this issue of the
* The standard award format has three major elements that are designated as Divisions I through III of the award. The third division, Division III, contains the general terms and conditions of the award.
* The general terms and conditions in Division III have four subelements that are designated as Subdivisions A through D. Subdivision C, the third of the four subelements of Division III, is comprised of general terms and conditions addressing national policy requirements.
This NPRM proposes a new part 1122 of the DoDGARs (2 CFR part 1122) to address the general terms and conditions that the proposed award format places in Subdivision C of Division III of DoD Components' grant and cooperative agreement awards. The specific purposes of the proposed part are to establish: (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 the proposed part 1122 applies to grant and cooperative agreement awards to all types of recipient entities. That scope distinguishes the proposed part 1122 from the seven new parts of the DoDGARs proposed in the NPRM immediately preceding this one in this issue of the
2. Legal Authorities for the Regulatory Action
There are two statutory authorities for this NPRM:
* 10 U.S.C. 113, which establishes the Secretary of Defense as the head of the
* 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.
B. Summary of the Major Provisions of the Regulatory Action
1. Definition of "National Policy Requirement"
The proposed section 2 CFR 1122.2 provides a definition of "national policy requirement" to help DoD Components distinguish the requirements that are to be addressed in Subdivision C of the general terms and conditions from those to be addressed in the subdivisions with administrative or programmatic requirements.
2.
The proposed section 2 CFR 1122.105 lists the four articles into which DoD Components are to organize their general terms and conditions addressing national policy requirements. It also explains how part 1122 is organized, with an appendix for each of the four articles to provide standard wording of general terms and conditions addressing commonly applicable national policy requirements.
3. Prescriptive Wording for DoD Components
The proposed sections 2 CFR 1122.115 and 1122.120 provide direction to DoD Components on inclusion of applicable requirements in the four articles of national policy requirements. The proposed prescriptive wording requires DoD Components to use the standard wording of terms and conditions provided in the appendices to 2 CFR part 1122 unless a statute or regulation authorized alternate wording.
4. Flowdown to Subrecipients
The proposed wording of terms and conditions in 2 CFR part 1122 does not establish a requirement for recipients to flow down national policy requirements to lower-tier subrecipients. For DoD Component awards to institutions of higher education, nonprofit organizations, States, local governments, and Indian tribes, that requirement is addressed in a proposed new 2 CFR part 1138. Part 1138 provides a standard organization and wording for general terms and conditions related to recipients' award and administration of subawards under
5. Supersession
The proposed 2 CFR part 1122 supersedes the current table entitled "Suggested Award Provisions for National Policy Requirements That Often Apply," which is in Appendix B to part 22 of the DoDGARs (32 CFR part 22). The last in the sequence of six NPRMs in this section of this issue of the
C. Costs and Benefits
The principal benefits of the regulatory action proposed in this NPRM are that recipients, auditors,
* 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.
If this proposed regulatory action has any impact on a recipient's costs of complying with applicable national policy requirements, we therefore expect that the impact would be to reduce those costs.
IV. Regulatory Analysis
Executive Order 12866, "Regulatory Planning and Review," and Executive Order 13563, "Improving Regulation and Regulatory Review"
Executive Order 12866, as supplemented by Executive Order 13563, directs each Federal agency to: Propose regulations only after determining that benefits justify costs; tailor regulations to minimize burdens on society, consistent with achieving regulatory objectives; maximize net benefits when selecting among regulatory approaches; to the extent feasible, specify performance objectives rather than the behavior or manner of compliance; and seek the views of those likely to be affected before issuing a notice of proposed rulemaking, where feasible and appropriate. The
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act) (2 U.S.C. 1532) requires that a Federal agency prepare a budgetary impact statement before issuing a rule that includes any Federal mandate that may result in the expenditure in any one year by State, local, and tribal governments, in the aggregate, or by the private sector, of
Regulatory Flexibility Act
The Regulatory Flexibility Act requires an agency that is proposing a rule to provide a regulatory flexibility analysis or to certify that the rule will not have a significant economic impact on a substantial number of small entities. The
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44
Executive Order 13132, "Federalism"
Executive Order 13132 establishes certain requirements that an agency must meet when it proposes a regulation that has Federalism implications. This proposed regulatory action does not have any Federalism implications.
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.
Accordingly, 2 CFR chapter XI is proposed to be amended by adding part 1122 to read as follows:
PART 1122--NATIONAL POLICY REQUIREMENTS: GENERAL AWARD TERMS AND CONDITIONS
Sec.
Subpart 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
(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
(b) It thereby implements:
(1) 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
(2) National policy requirements, to the extent they apply, for general terms and conditions of
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.
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 DoDGARs. 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.
Subpart B-Terms and Conditions
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.
(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:
In . . . You will find terms and conditions That would appear specifying recipients' rights and in an award within responsibilities related to . . . NP article . . . Appendix A Non-discrimination national policy I. requirements Appendix B Environmental national policy II. requirements Appendix C National policy requirements concerning III. live organisms Appendix D Other national policy requirements IV.
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
(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.
(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
(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.
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"
DoD Components are to use the following standard wording in NP Article I of their general terms and conditions in accordance with provisions of Subpart B of this part:
NP Article I. Nondiscrimination national policy requirements. (
Section A. Cross-cutting nondiscrimination requirements
By signing this agreement or accepting funds under this agreement, 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
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
3. On the basis of age, in the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), as implemented by
4. On the basis of disability, in the Rehabilitation Act of 1973 (29 U.S.C. 794), as implemented by
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. Other nondiscrimination requirements
[Reserved]
Appendix B to Part 1122--Terms and Conditions for NP Article II, "Environmental National Policy Requirements"
DoD Components are to use the following standard wording in NP Article II of their general terms and conditions in accordance with provisions of Subpart B of this part:
NP Article II. Environmental national policy requirements. (
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.
3. Comply with applicable provisions of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846), as implemented by the
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.
d. Coastal barriers along the
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 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 (
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. Other environmental requirements
[Reserved]
Appendix C to Part 1122--Terms and Conditions for NP Article III, "National Policy Requirements Concerning Live Organisms"
DoD Components are to use the following standard wording in NP Article III of their general terms and conditions in accordance with provisions of Subpart B of this part:
NP Article III. National Policy Requirements Concerning Live Organisms. (
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,
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 criteria 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.,
B.
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.
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 section 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
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
c. Your care and use of animals must conform with the pertinent laws of
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. Other Requirements Concerning Live Organisms
[Reserved]
Appendix D to Part 1122--Terms and Conditions for NP Article IV, "Other National Policy Requirements"
DoD Components are to use the following standard wording in NP Article IV of their general terms and conditions in accordance with provisions of Subpart B of this part:
NP Article IV. Other National Policy Requirements. (
Section A. Cross-Cutting Requirements
1. Debarment and suspension. You must comply with requirements regarding debarment and suspension in Subpart C of 2 CFR part 180, as adopted by
2. Drug-free workplace. You must comply with drug-free workplace requirements in Subpart B of 2 CFR part 26, which is the
3. Lobbying.
a. You must comply with the restrictions on lobbying in 31 U.S.C. 1352, as implemented by
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
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
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
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
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
8. Use of
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
b. Within 20 days following the date of loading for shipments originating within
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
10. Requirements for an Institution of
a. As a condition for receiving funds available to the
i. The Secretary of a
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
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
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
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
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.
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 (
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
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. Additional Requirements
[Reserved]
Dated:
Alternate OSD Federal Register Liaison Officer,
[FR Doc. 2016-25700 Filed 11-4-16;
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