Appendix D to Part 37 - What Common National Policy Requirements May Apply and Need To Be Included in TIAs
32:1.1.1.3.10.12.42.1.9 : Appendix D
Appendix D to Part 37 - What Common National Policy Requirements
May Apply and Need To Be Included in TIAs?
Whether your TIA is a cooperative agreement or another type of
assistance transaction, as discussed in Appendix B to this part,
the terms and conditions of the agreement must provide for
recipients' compliance with applicable Federal statutes and
regulations. This appendix lists some of the more common
requirements to aid you in identifying ones that apply to your TIA.
The list is not intended to be all-inclusive, however, and you may
need to consult legal counsel to verify whether there are others
that apply in your situation (e.g., due to a provision in
the appropriations act for the specific funds that you are using or
due to a statute or rule that applies to a particular program or
type of activity).
A. Certifications
One requirement that applies to all TIAs currently requires you
to obtain a certification at the time of proposal. That requirement
is in a Governmentwide common rule about lobbying prohibitions,
which is implemented by the DoD at 32 CFR part 28. The prohibitions
apply to all financial assistance. Appendix A to 32 CFR part 22
includes a sample provision that you may use, to have proposers
incorporate the certification by reference into their
proposals.
B. Assurances That Apply to All TIAs
DoD policy is to use a certification, as described in the
preceding paragraph, only for a national policy requirement that
specifically requires one. The usual approach to communicating
other national policy requirements to recipients is to incorporate
them as award terms or conditions, or assurances. Part 1122 of 2
CFR lists national policy requirements that commonly apply to DoD
grants and cooperative agreements. It also has standard wording of
general terms and conditions to incorporate the requirements in
award documents. Of those requirements, the following six apply to
all TIAs. (Note that TIAs must generally use the standard wording
in 2 CFR part 1122 for the terms and conditions of these six
requirements, but not the standard format.)
1. Requirements concerning debarment and suspension in the OMB
guidance in 2 CFR part 180, as implemented by the DoD at 2 CFR part
1125. The requirements apply to all nonprocurement
transactions.
2. Requirements concerning drug-free workplace in the
Governmentwide common rule that the DoD has codified at 32 CFR part
26. The requirements apply to all financial assistance.
3. Prohibitions on discrimination 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 DoD regulations at
32 CFR part 195. These apply to all financial assistance. They
require recipients to flow down the prohibitions to any
subrecipients performing a part of the substantive research program
(as opposed to suppliers from whom recipients purchase goods or
services).
4. Prohibitions on discrimination on the basis of age, in the
Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.).
They apply to all financial assistance and require flow down to
subrecipients, as implemented by Department of Health and Human
Services regulations at 45 CFR part 90.
5. Prohibitions on discrimination on the basis of handicap, in
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), as
implemented by Department of Justice regulations at 28 CFR part 41
and DoD regulations at 32 CFR part 56. They apply to all financial
assistance recipients and require flow down to subrecipients.
6. Preferences for use of U.S.-flag air carriers in 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, which apply to uses of U.S. Government funds.
C. Other National Policy Requirements
Additional national policy requirements may apply in certain
circumstances, as follows:
1. If construction work is to be done under a TIA or its
subawards, it is subject to the prohibitions in Executive Order
11246, as amended, on discrimination on the basis of race, color,
religion, sex, sexual orientation, gender identity, or national
origin. You must include the clause provided in 41 CFR 60-1.4(b) in
any “federally assisted construction contract” (as defined in 41
CFR 60-1.3) under this award unless provisions of 41 CFR part 60-1
exempt the contract from the requirement. The clause will require
the contractor to comply with equal opportunity requirements in 41
CFR chapter 60.
2. If the research involves human subjects or animals, it is
subject to the applicable requirements identified in appendix C of
2 CFR part 1122.
3. If the research involves actions that may affect the human
environment, it is subject to the requirements of the National
Environmental Policy Act in paragraph A.4.a of NP Article II, which
is found in appendix B of 2 CFR part 1122. It also may be subject
to one or more of the other requirements in paragraphs A.4.b
through A.4.f, A.5, and A.6 of NP Article II, which concern
flood-prone areas, coastal zones, coastal barriers, wild and scenic
rivers, underground sources of drinking water, endangered species,
and marine mammal protection.
4. If the project may impact any property listed or eligible for
listing on the National Register of Historic Places, it is subject
to the National Historic Preservation Act of 1966 (54 U.S.C.
306108) as specified in paragraph 11.a of NP Article IV, which is
found in appendix D of 2 CFR part 1122.
5. If the project has potential under this award for irreparable
loss or destruction of significant scientific, prehistorical,
historical, or archeological data, it is subject to the
Archaeological and Historic Preservation Act of 1974 (54 U.S.C.
Chapter 3125) as specified in paragraph 11.b of NP Article IV,
which is found in appendix D of 2 CFR part 1122.
[68 FR 47160, Aug. 7, 2003, as amended at 70 FR 49477, Aug. 23,
2005; 72 FR 34999, June 26, 2007; 85 FR 51247, Aug. 19, 2020]