Grants and Cooperative Agreements - Administrative General Terms and Conditions - Prior to June 1, 2016

Provision Title

Administrative GT&C – Mandatory

Instructions

1. Applicability of 2 CFR 200 as adopted by USDA through 2 CFR part 400

The provisions of 2 CFR 200 as adopted by USDA through 2 CFR part 400 will apply to all Federal awards made after December 26, 2014. The General Terms and Conditions below will apply for all grants and cooperative agreements made after December 26, 2014.

The provisions of 2 CFR 200 as adopted by USDA through 2 CFR part 400 and the General Terms and Conditions below will not retroactively change the terms and conditions for funds a non-Federal entity has already received (i.e. grants and cooperative agreements made prior to December 26, 2014). However, if a grant or cooperative agreement made previous to December 26, 2014 has post-December 26, 2014 funds added to it (i.e. via amendment), the provisions of 2 CFR 200 as adopted by USDA through 2 CFR part 400 and the General Terms and Conditions below will now apply to the Federal award, and not the pre-December 26, 2014 General Terms and Conditions.

Practically speaking, the provisions in 2 CFR 200 as adopted by USDA through 2 CFR part 400 will result in FAS changing its entity-wide policies (for example to payroll or procurement systems). These changes would therefore impact not only Federal awards made after December 26, 2014, but also existing and older Federal awards.

For Federal awards made prior to December 26, 2014 and that have not had post-December 26, 2014 funds added to the Federal award, the older FAS General Terms and Conditions can be found here.

2. Order of Precedence

In the event of any inconsistency between provisions of the award, the inconsistency will be resolved by giving precedence in the following order:

• Applicable laws and statutes of the United States, including any specific legislative provisions mandated in the statutory authority for the award.
• Code of Federal Regulations (CFR)
• Standard terms and conditions of the award document
• Application documents

3. Non-Federal entity (NFE)

As defined in 2 CFR 200.69, a non-Federal entity (NFE) means a state, local government, Indian tribe, institution of higher education (IHE), or nonprofit organization that carries out the Federal award as a recipient or subrecipient.
The NFE must in addition to the assurances and certifications made as a part of the Federal award, comply with all applicable terms and conditions during the project period. Failure to comply may result in actions as outlined in Remedies for Noncompliance under the Enforcement section of this part.

4. Accounting System Requirements

(a) Prior to FAS’ initial payment to the NFE, the NFE shall provide sufficient evidence to the FAS Grants Management Officer that its accounting system is in accord with the Generally Accepted Accounting Principles.

(b) The NFE’s financial management systems shall provide for the following:

(1) Accurate, current, and complete disclosure of the financial results of each FAS sponsored project or program. FAS requires financial reporting on an accrual basis; however, the NFE shall not be required to establish an accrual accounting system. The NFE shall develop such accrual data through best estimate for their reports on the basis of an analysis of the documentation on hand.

(2) Records that identify the source and application of funds for federally sponsored activities. These records shall contain information pertaining to Federal awards, authorizations, obligations, unobligated balances, assets, outlays, income and interest.

(3) Effective control over and accountability for all funds, property and other assets. NFEs shall adequately safeguard all such assets and assure they are used solely for authorized purposes.

(4) Comparison of outlays with budget amounts for each Federal award. Whenever appropriate, financial information should be related to performance and unit cost data.

(5) Written procedures to minimize the time elapsing between the transfer of funds to the NFE from the U.S. Treasury and the issuance or redemption of a check, warrant or payment by other means for program purposes by the NFE. To the extent that the provisions of the Cash Management Improvement Act (CMIA) (Pub. L. 101–453) govern, payment methods of State agencies, instrumentalities, and fiscal agents shall be consistent with CMIA Treasury-State Agreements or the CMIA default procedures codified at 31 CFR part 205, ‘‘Rules and procedures for efficient Federal State funds transfer.’’

(6) Written procedures for determining the reasonableness, allocability and allowability of costs in accordance with the provisions of the applicable Federal cost principles and the terms and conditions of the Federal award.

(7) Accounting records including cost accounting records that are supported by source documentation.

Applies to all CAs and DGs.

5. Accounting, Audit, and Records

(a) NFEs are responsible for obtaining audits in accordance with the audit requirements of 2 CFR 200.500 through 200.521. In addition, NFEs are subject to the audit requirements found in the Single Audit Act Amendments of 1996, (31 U.S.C. 7501-7507).

(b) The NFE shall maintain financial records, supporting documents, statistical records and all other records pertinent to the Federal award in accordance with Generally Accepted Accounting Principles formally prescribed by the United States to sufficiently substantiate charges to this Federal award. Accounting records that are supported by documentation shall at a minimum be adequate to show all costs incurred under the Federal award, receipt, and use of goods and services acquired under the Federal award, the costs of the program supplied from other sources, and the overall progress of the program. Unless otherwise notified, the recipient’s records and subrecipient’s records which pertain to this Federal award shall be retained for a period of three years from the date of submission of the final expenditure report, except when a longer retention period is required by law and may be audited by FAS and/or its representatives.

(b) A NFE that expends $750,000 or more during their fiscal year in Federal awards, i.e. as Recipients or subrecipients of Federal grants or cooperative agreements, or as cost reimbursable subcontractors of Federal grants or cooperative agreements, must have a single or program-specific audit conducted for that year in accordance with the provisions of 2 CFR 200 Subpart F- Audit Requirements.

(c) A NFE that expends less than $750,000 during their fiscal year in Federal awards, i.e. as Recipients or subrecipients of Federal grants or cooperative agreements, or as cost reimbursable subcontractors of Federal grants or cooperative agreements, is exempt from Federal audit and requirements for that year except as noted in 2 CFR 200.503 Relation to other audit requirements, but records must be available for review or audit by FAS officials, the pass-through entity, and the Government Accountability Office (GAO).

(d) FAS shall retain the right to conduct a financial review, require an audit, or otherwise ensure adequate accountability of organizations expending FAS funds regardless of the audit requirement.

(e) Organizations that provide FAS resources to other organizations to carry out FAS program and activities shall be responsible for monitoring their subcontractors or subrecipients. The cost of agreed-upon procedures to monitor subrecipients who are exempted from the requirements of the Single Audit Act and 2 CFR 200, Subpart F – Audit Requirements are allowable, subject to the conditions listed in 2 CFR 200.422 (c) (1)-(3).

(f) The audit report must be completed and the Data Collection Form (Form SF-SAC) and reporting package must be submitted to FAS within 30 days after receipt of the auditor’s report(s), or nine months after the end of the audit period. No audit costs may be charged to this Federal award if audits have not been made in accordance with the terms of 7 CFR Part 3052. All auditees are to submit their audit reports directly to the Federal Audit Clearinghouse (FAC). The SF-SAC and reporting package MUST be submitted electronically to FAC: http://harvester.census.gov/sac/. Any future updates to the location of the FAC may be found at the OMB website.

(g) In cases of continued inability or unwillingness to have an audit performed in accordance with the terms of 7 CFR Part 3052, FAS shall consider appropriate sanctions which may include, inter alia, suspension of all or a percentage of disbursements until the audit is satisfactorily completed.

(h) This provision in its entirety shall be incorporated into all subawards with non-U.S. organizations that meet the $750,000 threshold as described at paragraph (b) of this provision. Subawards to non-U.S. organizations which are for more than $10,000 but do not meet the $750,000 threshold shall at a minimum incorporate paragraph (d) of this provision. Subawards of grants and cooperative agreements made to U.S. organizations, except for not-for-profits, shall state that the U.S. organization is subject to the audit requirements contained in 2 CFR 200.

Applies to all CAs and DGs.

6. Federal Award Closeout

(a) As outlined in 2 CFR 300.343, the Federal award closeout is the process by which the NFE and FAS or pass-through entity determine that all required work of the Federal award and all necessary administrative actions have been completed.

(b) Unless FAS grants an extension, the NFE must submit the following no later than 90 calendar days after the end date of the period of performance:

(1) Final Financial Report;

(2) Final Performance Report; and

(3) Other reports as required by or identified in the terms and conditions.

(c) The NFE must liquidate all obligations incurred under the Federal award not later than 90 calendar days after the end of the period of performance.

(d) Any unobligated balance of cash advanced to the NFE shall be immediately refunded to FAS, including any interest (to HHS PMS), or other relevant law or regulation.

(e) FAS or the pass-through entity must complete close out actions no later than one year after receipt and acceptance of all required final reports. The one year period beings once FAS receives the final reports.

(f) In the event a final audit has not been performed prior to the closeout of the Federal award, FAS reserves the right to disallow and recover an appropriate amount after fully considering any recommended disallowances resulting from an audit which may be conducted later.

(g) Failure to close out a Federal award according to the provisions of this Federal award in a timely manner may result in adverse actions.

(h) Post-Closeout Adjustments and Continuing Responsibilities. As outlined in 2 CFR 200.344, the closeout of a Federal award does not affect any of the following:

(1) The rights of FAS or the pass-through entity to disallow costs and recover funds because of a later audit or other review. Any disallowance determinations and notifications made by FAS or the pass-through entity must be made within the record retention period.

(2) The obligation of the NFE to return any funds as a result of later refunds, corrections, or other transactions including final indirect cost rate adjustments.

(3) Audit requirements as required in the “Accounting, Audit, and Records” section of this part and 2 CFR 200.500 through 200.521.

(4) Property management and disposition requirements in 2 CFR 200.310 through 200.316

(5) Records retention as required in the “Retention and Access Requirements for Records” section of this part and 2 CFR 200.333.

Applies to all CAs and DGs.

7. Allowable Costs

(a) Allowable costs shall be determined in accordance with the cost-principles as outlined in 2 CFR Part 200/400 through 200.475 applicable to the NFE incurring the costs.

(b) The NFE shall be reimbursed for costs incurred in carrying out the purposes of this Federal award which are determined by the Grants Management Officer to be reasonable, allocable, and allowable in accordance with the terms of this Federal award and the applicable cost principles in effect on the date of this Federal award. The NFE may obtain a copy of the applicable cost principles from the Grants Management Officer. Brief definitions of what may be considered as reasonable, allocable, and allowable costs are provided below; however, it is the NFE's responsibility to ensure that costs incurred are in accordance to the relevant federal Cost Principles.

(1) Reasonable costs. A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost. The question of reasonableness is particularly important when the NFE is predominately federally-funded. In determining reasonableness of a given cost, consideration must be given to:

(i) Whether the cost is of a type generally recognized as ordinary and necessary for the operation of the NFE or the proper efficient performance of the Federal award.
(ii) The restraints or requirements imposed by such factors as: sound business practices; arm’s-length bargaining; Federal, state and other laws and regulations; and terms and conditions of the Federal award.
(iii) Market prices for comparable goods or services for the geographic area.
(iv) Whether the individuals concerned acted with prudence in the circumstances considering their responsibilities to the NFE, its employees, where applicable, its students or membership, the public at large, and the Federal government.
(v) Whether the NFE significantly deviates from its established practices and policies regarding the incurrence of costs, which may unjustifiably increase the Federal award’s cost.

(2) Allocable Costs. A cost is allocable to a particular Federal award or other cost objective if the goods or services involved are chargeable or assignable to that Federal award or cost objective in accordance with relative benefits received.

(i) This standard is met if the cost:

(A) Is incurred specifically for the Federal award;

(B) Benefits both the Federal award and other work of the NFE and can be distributed in proportions that may be approximated using reasonable methods; and

(C) Is necessary to the overall operation of the NFE and is assignable in part to the Federal award in accordance with the principles in this subpart.

(ii) All activities which benefit from the NFE’s indirect (F&A) cost, including unallowable activities and donated services by the NFE or third parties, will receive an appropriate allocation of indirect costs.
(iii) Any cost allocable to a particular Federal award under the principles provided for in this Part may not be charged to other Federal awards to overcome fund deficiencies, to avoid restrictions imposed by Federal statutes, regulations, or terms and conditions of the Federal awards, or for other reasons. However, this prohibition would not preclude the NFE from shifting costs that are allowable under two or more Federal awards in accordance with existing Federal statutes, regulations, or the terms and conditions of the Federal award.
(iv) Direct cost allocation principles. If a cost benefits two or more projects or activities in proportions that can be determined without undue effort or cost, the cost should be allocated to the projects based on the proportional benefit. If the cost benefits two or more projects or activities or activities in proportions that cannot be determined because of the interrelationship of the work involved, then notwithstanding paragraph (iii) of this section, the costs may be allocated or transferred to benefitted projects on any reasonable documented basis. Where the purchase of equipment or other capital asset is specifically authorized under the Federal award, the costs are assignable to the Federal award regardless of the use that may be made of the equipment or other capital asset involved when no longer needed for the purpose which it was originally required. See also 2 CFR Part 200.310 Insurance coverage through 2 CFR Part 200.316 Property trust relationship and 2 CFR Part 200.439 Equipment and other capital expenditures.
(v) If the contract is subject to CAS, costs must be allocated to the contract pursuant to the Cost Accounting Standards. To the extent that CAS is applicable, the allocation of costs in accordance with CAS takes precedence over the allocation provisions of this part.

(b) Prior to incurring a questionable or unique cost, the NFE shall obtain the Grants Management Officer's written determination on whether the cost will be allowable.

(c) No funds provided under this Federal award shall be earned or kept as profit or fee by the Recipient or any subrecipient under this Federal award. However, funds may be used to pay subcontractors profit or fees under this Federal award.

(d) Failure to comply with indirect cost rate requirements may lead to substantial overpayments or underpayments.

(e) The NFE must inform FAS, through the Grants Management Officer, of all applicable indirect cost rate adjustments.

Applies to all CAs and DGs.

8. Applicability of Federal Financial Assistance Requirements, Part 1

The NFE of the Federal award agrees to comply with the following regulations, as applicable. The full text of Code of Federal Regulations (CFR) references may be found at: eCFR — Code of Federal Regulations.

1. 2 CFR Part 25, “Universal Identifier and Central Contractor Registration”;
2. 2 CFR Part 170, “Reporting Subaward and Executive Compensation Information”;
3. 2 CFR Part 175, “Award Term for Trafficking in Persons”;
4. 2 CFR part 180, “OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement)”;
5. 2 CFR Part 182, “Governmentwide Requirements for Drug-Free Workplace (Financial Assistance)”;
6. 2 CFR Part 200, “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards”;
7. 2 CFR Part 400, “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards”;
8. 2 CFR Part 415, “General Program Administrative Regulations”;
9. 2 CFR Part 416, “General Program Administrative Regulations for Grants and Cooperative Agreements to State and Local Governments”;
10. 2 CFR Part 417, “Nonprocurement Debarment and Suspension”;
11. 2 CFR Part 418, “New Restrictions on Lobbying”;
12. 2 CFR Part 421, “Requirements for Drug-Free Workplace (Financial Assistance)”;
13. 7 CFR part 3015.175(b), ‘‘Copyrights’’;
14. 37 CFR part 401.14, ‘‘Standard Patent Rights Clause’’;
15. Executive Order 13224, as amended, “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”;
16. Executive Order 13513, “Federal Leadership on Reducing Text Messaging While Driving”;
17. 41 U.S.C. §§ 351 – 358, “the McNamara-O'Hara Service Contract Act of 1965”
18. 15 U.S.C. 205a et seq., ‘‘The Metric Conversion Act, as amended by the Omnibus Trade and Competitiveness Act’’;
19. 42 U.S.C. 6962, ‘‘Resource Conservation and Recovery Act (RCRA)’’;
20. 49 U.S.C. 40118 et seq., “Fly America Act”;
21. 8 USC 1324a, “Immigration and Nationality Act”;
22. 5 U.S.C. 552, “Freedom of Information Act”;
23. 41 U.S.C. 22, “Interest of Members of Congress”;
24. 40 U.S.C. 3141-3148, “the Davis–Bacon Act”; and,
25. P.L. 109-282, “Federal Financial Accountability and Transparency Act of 2006” and P.L. 113-101, “Digital Accountability and Transparency Act of 2014”;
26. Other laws, regulations, Executive Orders, and other applicable requirements, which are hereby incorporated into this Federal award.

Applies to all CAs and DGs.

9. Conflict of Interest

As outlined in 2 CFR 200.112 and 2 CFR 400.2, the NFE must disclose in writing any potential conflict of interest to FAS or the pass-through entity in accordance with applicable FAS policy.

10. Cost Sharing or Matching Requirements

If the Federal award has specific cost-sharing or matching requirements, as outlined in 2 CFR Part 200.306, contributions must meet all of the following criteria:

1. Are verifiable from the NFE’s records;
2. Are not included as contributions for any other Federal award;
3. Are necessary and reasonable for accomplishment of project or program objectives;
4. Are allowable under 2 CFR 200.400 through 200.475;
5. Are not paid by the Federal government under another Federal award, except where the Federal statute authorizing a program specifically provides that Federal funds made available for such program can be applied to matching or cost sharing requirements of other Federal programs; and
6. Are provided for in the approved budget when required by FAS.

Unrecovered indirect costs, including indirect costs on cost sharing or matching may be included a part of cost sharing or matching only with the prior approval of the USDA awarding agency.

11. Disputes

Whenever disputes, disagreements or misunderstanding arise regarding issues under this Federal award, the NFE and FAS shall attempt to resolve the issues by discussion and mutual agreement as soon as practicable. If the parties are unable to mutually resolve the dispute, the NFE may submit, in writing, a disputed claim or issue to the FAS Deputy Administrator for the Division administering the Federal award, or their designee, for a decision. No hearing will be provided, unless another hearing, appeal, or other administrative proceeding is available to the NFE under any statute or regulations applicable to the action involved. The NFE’s submission must specify the nature and basis of the claim and the relief requested and include all data to support such claim. A copy of the submission shall be concurrently furnished to the Grants Management Officer. The Grants Management Officer shall furnish the NFE a written copy of the Deputy Administrator’s decision. Decisions of the Deputy Administrator shall be final unless, within 30 days of receipt of the decision, the NFE appeals the decision to the FAS Administrator. Any appeal made shall be in writing and addressed to the FAS Administrator. No hearing will be provided.

Applies to all CAs and DGs.

12. Endorsement

Any of the NFE’s contributions made under this Federal award do not by direct reference or implication convey FAS endorsement of the NFE's products or activities.

Applies to all CAs and DGs.

13. Enforcement

(a) Remedies for noncompliance. As outlined in 2 CFR 200.338, if a NFE materially fails to comply with Federal statutes, regulations or the terms and conditions of the FAS Federal award, FAS or the pass-through entity may impose additional conditions, as described in 2 CFR 200.207 Specific conditions. If FAS or the pass-through entity determines that noncompliance cannot be remedied by imposing additional conditions, FAS or the pass-through entity may take one or more of the following actions, as appropriate in the circumstances:

(1) Temporarily withhold cash payments pending correction of the deficiency by the NFE or more severe enforcement action by FAS or the pass-through entity.

(2) Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance.

(3) Wholly or partly suspend or terminate the Federal award.

(4) Withhold further Federal awards for the project or program.

(5) Initiate suspension or debarment proceedings as authorized under 2 CFR Part 180 and FAS regulations (or in the case of a pass-through entity, recommend such a proceeding be initiated by FAS).

(6) Take other remedies that may be legally available.

(b) Effects of suspension and termination. Costs of a NFE resulting from obligations incurred by the NFE during a suspension or after termination of a Federal award or subaward are not allowable unless FAS expressly authorizes them in the notice of suspension or termination or thereafter. Other NFE costs during suspension or after termination which are necessary and not reasonably avoidable are allowable if paragraphs (b)(1) and (2) of this provision apply.

(1) The costs result from obligations which were properly incurred by the NFE before the effective date of suspension or termination, are not in anticipation of it, and in the case of a termination, are non-cancellable.

(2) The costs would be allowable if the Federal award were not suspended or expired normally at the end of the funding period in which the termination takes effect.

(c) Relationship to debarment and suspension. The enforcement remedies identified in this provision, including suspension and termination, do not preclude a NFE from being subject to debarment and suspension under 2 CFR part 180 and part 417.

Applies to all CAs and DGs.

14. Equipment

(a) In accordance with 2 CFR 200.313:

(1) Title. Title to equipment acquired under the Federal award will vest upon acquisition to the NFE. Unless a statute specifically authorizes FAS to vest title in the NFE without further obligation to the government, and FAS elects to do so, the title must be a conditional title. Title must vest to the recipient subject to the following conditions:

(i) Use the equipment for the authorized purpose(s) of the project until funding for the project ceases, or until the property is no longer needed for the purposes of the project.
(ii) Not encumber the property without approval of FAS or the pass-through entity.
(iii) Use and dispose of the property in accordance with paragraphs (b), (c) and (e) of this section.

(2) A state must use, manage and dispose of equipment acquired under the Federal award by the state in accordance with state laws and procedures.

(b) Other NFEs must follow paragraphs (1) through (3) below:

(1) Use.

(i) Equipment must be used by the NFE in the program or project for which it was acquired as long as needed, whether or not the project or program continues to be supported by the Federal award, and the NFE must not encumber the property without prior approval of FAS. When equipment is no longer needed for the original program or project, the equipment may be used in other activities supported by FAS, in the following order or priority:

(A) Activities under the Federal award from FAS which funded the original program or project, then

(B) Activities under Federal awards from other Federal awarding agencies, including consolidated equipment for information technology systems.

(ii) During the time that equipment is used on the project or program for which it was acquired, the recipient must also make equipment available for use on other projects or programs currently or previously supported by the Federal government, provided that such use will not interfere with the work on the projects or program for which it was originally acquired.
(iii) The NFE must not use equipment acquired with the Federal award to provide services for a fee that is less than private companies charge for equivalent services unless specifically authorized by Federal statute for as long as the Federal government retains an interest in the equipment.
(iv) When acquiring replacement equipment, the NFE may use the equipment to be replaced as a trade-in or sell the property and use the proceeds to offset the cost of the replacement property.

(2) Management requirements. Procedures for managing equipment (including replacement equipment), whether acquired in whole or in part under the Federal award, until disposition takes place will, at a minimum, meet the following requirements:

(i) Property records must be maintained that include description of the property, a serial number or their identification number, the source of funding for the property (including the Federal Award Identification Number (FAIN)), who holds the title, acquisition date, and cost of the property, percentage of Federal participation in the project costs for the Federal award under which the property was acquired, the location, use and condition of the property, and any ultimate disposition data including the date of disposal and sale price of the property.
(ii) A physical inventory of the property must be taken and the results reconciled with the property records at least once every two years.
(iii) A control system must be developed to ensure adequate safeguards to prevent loss, damage, or theft must be investigated.
(iv) Adequate maintenance procedures must be developed to keep the property in good condition.
(v) If the NFE is authorized or required to sell the property, proper sales procedures must be established to ensure the highest possible return.

(3) Disposition. When the original or replacement equipment acquired under the Federal award is no longer needed for the original project or program or for other activities currently or previously supported by a Federal awarding agency, except as otherwise provided in Federal statutes, regulations or Federal awarding agency disposition instructions, the NFE must request disposition instructions from FAS if required by the terms and conditions of the Federal award. Disposition of the equipment will be made in accordance with FAS disposition instructions outlined in 2 CFR 200.313(e)(1) through (4).

15. Extensions

As outlined in 2 CFR 200.308(d)(2), the NFE may initiate a one-time extension of the period of performance by up to 12 months. The NFE must notify FAS in writing with the supporting reasons and revised period of performance at least 10 calendar days before the end of the period of performance specified in the Federal award. The one-time extension may not be exercised merely for the purpose of using unobligated balances.

16. Financial Reporting

As outlined in 2 CFR 200.327, the NFE must submit financial status reports by the frequency required in the terms and conditions of the Federal award, but no less frequently than annually nor more frequently than quarterly except in unusual circumstances by the USDA awarding agency.

The NFE must submit the completed Federal Financial Report (FFR) SF-425 to FAS 30 calendar days after the reporting period in accordance with the following schedule:

Quarterly Schedule Report Due Date
October 1 to December 31 January 31
January 1 to March 31 April 30
April 1 to June 30 July 31
July 1 to September 30 October 31

17. Indirect costs

As outlined in 2 CFR Part 200.414 (e), any NFE that has never had a negotiated indirect cost rate may use a de minimis rate of 10% of modified total direct costs (MTDC) which may be used indefinitely. As outlined in Appendix VII paragraph (D)(1)(b) to 2 CFR Part 200, this does not apply to States and Local Governments and Indian Tribes that receives more than $35 million in direct Federal funding. They are required to submit their indirect cost rate proposal to FAS for indirect costs.

As outlined in 2 CFR Part 200.414 (g), any NFE with a federally negotiated indirect cost rate may apply for a one-time extension of their current negotiated indirect cost rate rates for a period of up to four years. Such requests should be submitted prior to the due date of the next proposal for indirect costs. The extension will be subject to the review and approval of FAS for indirect costs. If an extension is granted, the NFE may not request a rate review until the extension period ends. At the end of the four year extension, the NFE must re-apply to negotiate a rate.

Indirect costs will be allowed for the Federal award when specifically included as a line item in the approved budget for this Federal award.

Negotiated rates must be accepted by all Federal awarding agencies.

Pass through entities also must accept the negotiated rate.

18. Interest Earned on Federal Advance Payments

In accordance with 2 CFR 200.305(b)(9), interest earned on Federal advance payments deposited in interest-bearing accounts must be remitted annually to:
Department of Health and Human Services (DHHS)
Payment Management System (PMS)
Rockville, MD 20852
Interest amounts up to $500 per year may be retained by for administrative expenses.

19. Modifications

Modifications to this Federal award shall be made by mutual consent of the parties, by the issuance of a written modification signed and dated by properly authorized, signatory officials, prior to any changes being performed. Requests for modification should be made at least 30 days prior to desired implementation date for the requested change. FAS is not obligated to fund any changes not properly approved in advance.

Applies to all CAs and DGs.

20. Non-Liability

FAS does not assume liability for any third-party claims for damages arising out of this Federal award. Subrecipients, subawardees, and contractors have no privity of contract with FAS under the terms of this Federal award.

Applies to all CAs and DGs.

21. Notices

Any notice given by FAS or the NFE will be sufficient only if in writing and delivered in person, or transmitted electronically by e-mail or fax (not by postal mail), as follows:

To FAS: FAS Program Manager and FAS Grants Manager Officer, at the address specified in this Federal award.

To the NFE: The NFE's address specified in this Federal award. Notices will be effective when delivered in accordance with this provision, or on the effective date of the notice, whichever is later.

Applies to all CAs & DGs. May incorporate actually addresses here along with specific names.

22. Overpayment

(a) Any funds paid in the aggregate to the NFE in excess of the amount to which the NFE is finally determined to be entitled under the terms and conditions of the Federal award constitute a debt to the Federal Government. If not paid within a reasonable period after the demand for payment, FAS may in accordance with 7 CFR part 3, reduce the debt by—

(1) Making an administrative offset against other requests for reimbursements, or

(2) Taking other action permitted by statute. (31 U.S.C. 3716 and 7 CFR, part 3, Subpart B).

(b) The following must also be considered as a debt or debts owed by the NFE to FAS:

(1) Any royalties or other special classes of program income which, under the provisions of the Federal award, are required to be returned.

(c) Except as otherwise provided by law, FAS shall charge interest on an overdue debt in accordance with 31 CFR part 900, ‘‘Federal Claims Collection Standards.’’

Applies to all CAs and DGs.

23. Participation in Similar Activities

This Federal award in no way restricts FAS or the NFE from participating in similar activities with other public or private agencies, organizations, and individuals.

Applies to all CAs and DGs.

24. Payments

Subject to 31 CFR 208.3, notwithstanding any other provision of law, effective January 2, 1999, all Federal payments made by FAS shall be made by electronic funds transfer (EFT), unless a waiver applies (see 31 CFR 208.4).

When EFT is not used, requests for payment shall be submitted on a Request for Advance or Reimbursement (SF-270). The SF-270 must be sent by one of three methods: email, fax, or postal. Email is the preferred method.

As outlined in 2 CFR 200.305(a), for states, payments are governed by Treasury-State Cash Management Improvement Act (CMIA) agreements and default procedures codified at 31 CFR Part 205 “Rules and Procedures for Efficient Federal-State Funds Transfers” and Treasury Financial Manual, TFM 4A-2000 Overall Disbursing Rules for All Federal Agencies.

As outlined in 2 CFR 200.305(b), for NFEs other than states, payment methods must minimize the time elapsing between the transfer of funds from the United States Treasury or the pass-through entity and the disbursement by the NFE whether the payment is made by EFT, or issuance or redemption of checks, warrants, or payment by other means.
NFEs requesting advances should request payment in amounts necessary to cover anticipated cash needs for all Federal awards made by FAS as outlined in 2 CFR 200.305(b)(2) and 31 CFR Part 205.

When FAS requires payments as reimbursements rather than advance payments, or the NFE requests payment by reimbursement, FAS or the pass-through entity must make payment within 30 calendar days after receipt of the billing, unless FAS or the pass-through entity reasonably believes the request to be improper.

25. Period of Performance

The NFE may charge the Federal award only allowable costs incurred during the period of performance. See 2 CFR Part 200.309. Any costs incurred before FAS or the pass-through entity made the Federal award are allowed as long as they were authorized by FAS or the pass-through entity. See Pre-Award Costs.

26. Pre-Award Costs

As outlined in 2 CFR Part 200.458, pre-award costs prior to the effective date of the Federal award are allowable only with written approval of FAS.
As outlined in 2 CFR Part 200.308(d)(1), all costs incurred before FAS makes the Federal award are at the risk of the recipient. FAS is under no obligation to reimburse costs if for any reason the:

(1) award is not made;

(2) award is less than anticipated; or

(3) award is inadequate to cover such costs.

27. Press Releases

Press releases or other forms of public notification will be submitted to FAS for review prior to release to the public. FAS will be given the opportunity to review, in advance, all written press releases and any other written information to be released to the public by the NFE, and require changes as deemed necessary, if the material mentions by name FAS or the USDA, or any USDA employee or research unit or location.

Applies to all CAs and DGs.

28. Prior Approvals

(a) The budget is the financial expression of the project or program as approved during the Federal award process. FAS requires that all Federal costs be itemized on the approved budget. The budget shall be related to performance for program evaluation purposes.

(b) As outlined in 2 CFR 200.308, the NFE must request written prior approval from FAS for one or more of the following budget-related reasons:

(1) Incur pre-award costs up to 90 days prior to the Federal award date. All pre-award costs are incurred at the NFE’s risk (i.e., FAS is under no obligation to reimburse such costs if for any reason the NFE does not receive a Federal award or if the Federal award is less than anticipated and inadequate to cover such costs).

(2) Change in the scope or the objective of the project or program (even if there is no associated budget revision requiring prior written approval).

(3) Change in a key person specified in the application or Federal award.

(4) The absence for more than three months, or a 25 percent reduction in time devoted to the project, by the approved project director or principal investigator.

(5) Changes in the amount of approved cost-sharing or matching provided by the NFE. No other prior approval requirements for specific items may be imposed unless a deviation has been approved by OMB.

(6) Extensions of time, within statutory limitations, unless the terms and conditions of the Federal award prohibit the extension, the extension requires additional FAS funds and/or the extension involves any change in the approved objectives or scope of the project. This extension may not be requested merely for the purpose of using unobligated balances. The NFE must notify FAS in writing with the supporting reasons and revised period of performance at least 10 calendar days before the end of the period of performance specified in the Federal award.

(7) The transfer of amounts budgeted for indirect costs to absorb increases in direct costs, or vice versa.

(8) The transfer of funds among direct cost categories or programs, functions and activities for Federal awards in which the Federal share of the project exceeds the Simplified Acquisition Threshold ($150,000) and the cumulative amount of such transfers exceeds or is expected to exceed 10 percent of the total budget as last approved by FAS. FAS cannot permit a transfer that would cause any Federal appropriation to be used for purposes other than those consistent with the appropriation.

(9) Unless described in the application and funded in the approved Federal award, the subawarding, transferring or contracting out of any work under the Federal award. This provision does not apply to the acquisition of supplies, material, equipment or general support services.

(10) If FAS requires the NFE to hire or appoint technical staff under this Federal award, the NFE shall send formal notification within 30 days of any new hires or appointments. When FAS funding derives from a PASA, and the activity requires long-term hires or appointments, FAS must participate in the NFE’s selection panel.

(11) Request for additional funding.

(12) The transfer of funds allotted for training allowances (direct payment to trainees) to other categories of expense.

(13) Advertising.

(c) As outlined in 2 CFR 200.407 and identified below, the NFE is also bound by any other prior approval requirements of the applicable administrative provisions and Federal cost principles.

(1) § 200.201 Use of grant agreements (including fixed amount awards), cooperative agreements, and contracts, paragraphs (b)(5)

(2) § 200.306 Cost sharing or matching;

(3) § 200.307 Program Income;

(4) § 200.308 Revision of budget and program plans;

(5) § 200.332 Fixed amount subawards;

(6) § 200.413 Direct costs, paragraph (c);

(7) § 200.430 Compensation—personal services, paragraph (h);

(8) § 200.431 Compensation—fringe benefits;

(9) § 200.438 Entertainment costs;

(10) § 200.439 Equipment and other capital expenditures;

(11) § 200.440 Exchange rates;

(12) § 200.441 Fines, penalties, damages and other settlements;

(13) § 200.442 Fund raising and investment management costs;

(14) § 200.445 Goods or services for personal use;

(15) § 200.447 Insurance and indemnification;

(16) § 200.454 Memberships, subscriptions, and professional activity costs, paragraph (c);

(17) § 200.455 Organization costs;

(18) § 200.456 Participant support costs;

(19) § 200.458 Pre-award costs;

(20) § 200.462 Rearrangement and reconversion costs;

(21) § 200.467 Selling and marketing costs; and

(22) § 200.474 Travel costs.

Applies to all CAs and DGs.

29. Procurement

FAS recipients shall adhere to the requirements of 2 CFR 200.317 through 200.326 which prescribes standards in establishing procedures for the procurement of supplies and other expendable property, equipment, real property and other services with Federal funds.
In accordance with 2 CFR 330:

(a) A subaward is for the purpose of carrying out a portion of a Federal award and creates a Federal assistance relationship with the subrecipient.

(b) A contract is for the purpose of obtaining goods and services for the NFE’s own use and creates a procurement relationship with the contractor.

Regardless of whether a Federal award is a grant, cooperative agreement, subgrant or contract under an award, all are expected to follow the applicable OMB cost principles in 2 CFR 200—Subpart E. The NFEs are also responsible for ensuring all contracts must contain the appropriate provisions outlined in 2 CFR 200, Appendix II.

30. Program Management

(a) The NFE shall monitor the performance of the Federal award activities to ensure that performance goals are being achieved.

(b) NFEs are responsible for managing the day-to-day operations of this Federal award using their established controls and policies, as long as they are consistent with FAS
requirements.

(c) Monitoring of a project or activity continues for as long as FAS retains a financial interest in the project or activity. FAS reserves the right to monitor a project after it has been administratively closed out and no longer providing active support in order to resolve issues of accountability and other administrative requirements.

(d) FAS reserves the right to perform site visits at the NFE’s locations.

(e) NFEs shall immediately notify FAS of developments that have a significant impact on the award-supported activities. Also, notification shall be given in the case of problems, delays, or adverse conditions which materially impair the ability to meet the objectives of the Federal award. This notification shall include a statement of the action taken or contemplated, and any assistance needed to resolve the situation.

Applies to all CAs and DGs.

31. Project Supervision and Responsibilities

(a) The NFE is solely responsible and accountable for the performance and conduct of all NFE employees assigned to the project, including, but not limited to personnel, performance and time management issues. FAS does not have authority to supervise NFE employees or engage in the employer-employee relationship.

(b) The NFE shall immediately notify FAS of developments that have a significant impact on the activities supported under this Federal award. Also, notification shall be given in case of problems, delays or adverse conditions that materially impair the ability to meet the objectives of the Federal award. This notification shall include a statement of the action taken or contemplated, and any assistance needed to resolve the situation.

Applies to all CAs and DGs.

32. Reporting Program Performance

(a) As outlined in 2 CFR 200.328, the NFE is responsible for oversight of the operations of the Federal award support activities. The NFE must monitor the activities to assure compliance with applicable Federal requirements and performance expectations are being achieved. Monitoring must cover each program, function or activity.

(b) For Federal awards of $100,000 or more the NFE shall submit a completed annual Performance Progress Report (PPR) SF-PPR. For Federal awards under $100,000 the NFE shall submit a completed annual written progress report.

(c) Each report must contain brief information on the following:

(1) A comparison of actual accomplishments to the objectives of the Federal award established for the period. Where the accomplishments of the Federal award can be quantified, a computation of the cost (for example, related to units of accomplishment) may be required if that information will be useful.

(2) The reason(s) why established goals were not met, if appropriate.

(3) Additional pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs.

(d) Annual reports are due 90 calendar days after the reporting period.

33. Responsibility for Subrecipient Monitoring and Management

(a) Flow-down of requirements under subawards: The terms and conditions of the Federal award flow down to the subawards to subrecipients, unless the terms and conditions specify an exception. See 2 CFR Part 200.101.

(b) The recipient/pass-through entity is responsible for assessing the risk of subrecipients, and ensuring subrecipients are meeting the performance goals and objectives (see 2 CFR 200.330 through 200.332).

(c) The NFE shall make subawards only to responsible subrecipients who possess the potential ability to perform successfully under the terms and conditions of a proposed Federal award. The Recipient must evaluate each subrecipient’s risk of noncompliance with Federal statutes, regulations, and the terms and conditions of the subaward. This evaluation may include consideration of such factors as:

(1) The subrecipient’s prior experience with the same or similar subawards;

(2) The results of previous audits including whether or not the subrecipient receives a Single Audit in accordance with 2 CFR 200, Subpart F – Audit Requirements of this Part, and the extent to which the same or similar subaward has been audited as a major program;

(3) Whether the subrecipient has new personnel or new or substantially changed systems; and

(4) The extent and results of Federal awarding agency monitoring (e.g. if the subrecipient also receives Federal awards directly from a Federal awarding agency).

(d) Federal awards shall not be made to firms or individuals whose name appears on the "Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs" available online at www.EPLS.gov.

(e) The pass-through entity must provide to subrecipient(s) appropriate terms and conditions concerning closeout of the subaward(s).

(f) The Recipient shall ensure that every subaward is clearly identified to the subrecipient as a subaward and includes the following information at the time of the subaward and if any of these data elements change, include the changes in subsequent subaward modification. When some of this information is not available, the Recipient must provide the best information available to describe the Federal award and subaward. Required information includes:

(1) Federal Award Identification.

(i) Subrecipient name (which must match registered name in DUNS);
(ii) Subrecipient’s DUNS number;
(iii)Federal Award Identification Number;
(iv) Federal Award Date;
(v) Subaward Period of Performance Start and End Date;
(vi) Amount of Federal Funds Obligated by this action;
(vii) Total Amount of the Federal Award
(viii) Federal award project description, as required to be responsive to the Federal Funding Accountability and Transparency ACT (FFATA);
(ix) Name of Federal awarding agency, pass-through entity, and contact information for awarding official;
(x) CFDA Number and Name; the pass-through entity must identify the dollar amount made available under each Federal award and the CFDA number at the time of disbursement;
(xi) Identification of whether the Federal award is R&D; and
(xii) Indirect cost rate for the Federal award.

(2) All requirements imposed by the Recipient on the subrecipient so that the Federal award is exercised in accordance with Federal statutes, regulations and terms and conditions
of the Federal award.

(3) Any additional requirements that the Recipient imposes on the subrecipient in order for the Recipient to meet its own responsibility to FAS including identification of any required financial and performance reports.

(4) An approved federally recognized indirect cost rate negotiated between the subrecipient and the Federal government or, if not such rate exists, either a rate negotiated between the Recipient and the subrecipient, or a de minimis indirect cost rate as defined in 2 CFR 200.414 Indirect (F&A) costs.

(5) A requirement that the subrecipient permit the Recipient and auditors to have access to the subrecipient’s records and financial statements as necessary for the Recipient to meet the requirements of 2 CFR 200, Subpart F – Audit Requirements and 2 CFR 200.300 Statutory and national policy requirements through 200.309 Period of performance.

(6) Appropriate terms and conditions concerning closeout of the subaward.

(g) All subawards shall at a minimum contain provisions to define a sound and complete agreement in addition to those that are specifically required by any other provisions in this Federal award and clauses required by Federal law, executive orders and the implementing Federal regulations. Whenever a provision within this Federal award is required to be inserted in a subaward, the Recipient shall insert a statement in the subaward that in all instances where FAS is mentioned, the Recipient's name will be substituted.

(h) The Recipient shall consider imposing specific subaward conditions upon a subrecipient if appropriate as described in 2 CFR 200.20, Specific conditions.

(i) The pass-through entity shall monitor the activities of the subrecipient as necessary to ensure that the subaward is used for authorized purposes, in compliance with Federal statutes, regulations, and the terms and conditions of the subaward; and that subaward performance goals are achieved. Recipient monitoring of the subrecipient(s) must include:

(1) Reviewing financial and programmatic reports required by the pass-through entity.

(2) Following-up and ensuring that the subrecipient takes timely and appropriate action on all deficiencies pertaining to the Federal award provided to the subrecipient from the pass-through entity detected through audits, on-site reviews, and other means.

(3) Issuing a management decision for audit findings pertaining to the Federal award provided to the subrecipient from the pass-through entity as required by 2 CFR 200.521, Management decision.

(j) Depending upon the Recipient’s assessment of risk posed by the subrecipient, the following monitoring tools may be useful for the Recipient to ensure proper accountability and compliance with program requirements and achievement of performance goals:

(1) Providing subrecipients with training and technical assistance on program-related matters;

(2) Performing on-site reviews of the subrecipient’s program operations;

(3) Arranging for agreed-upon-procedures engagements as described in 2 CFR 200.425, Audit services.

(k) The Recipient must verify that every subrecipient is audited as required by 2 CFR 200, Subpart F – Audit Requirements , when it is expected that the subrecipient’s Federal awards expended during the respective fiscal year equaled or exceeded the threshold set forth in the Accounting, Audit, and Records Section (g) of this Part.

(l) The Recipient must consider whether the results of the subrecipient’s audits, on-site reviews, or other monitoring indicate conditions that necessitate adjustments to the Recipient’s own records.

(m) The Recipient must consider taking enforcement action against noncompliant subrecipients as described in 2 CFR 200.338 Remedies for noncompliance and in program regulations.

Applies to all CAs and DGs.

34. Retention and Access Requirements for Records

(a) This provision sets forth requirements for record retention and access to records. As used in this provision, “records” includes books, documents, accounting procedures and practice, and other data, regardless of the type or format.

(b) In accordance with 2 CFR 200.333, financial records, supporting documents, statistical records, and all other records pertinent to a Federal award must be retained for a period of three years from the date of submission of the final expenditure report. For Federal awards that are renewed quarterly or annually, these records must be maintained for a period of three years from the date of the submission of the quarterly or annual financial report, as authorized by FAS or the pass-through entity in the case of a subrecipient(s). The only exceptions are the following:

(1) If any litigation, claim, or audit is started before the expiration of the 3- year period, the records must be retained until all litigation, claims or audit findings involving the records have been resolved and final action taken;

(2) When the NFE is notified in writing by FAS, cognizant agency for audit, cognizant agency for indirect costs, or pass-through entity to extend the retention period.

(3) Records for real property and equipment acquired with Federal funds must be retained for 3 years after final disposition;

(4) When records are transferred to or maintained by FAS or the pass-through entity, the 3- year retention requirement is not applicable;

(5) Records for program income transactions after the period of performance. In some cases the NFE must report program income after the period of performance. Where there is such a requirement, the retention period for records pertaining to the earning of the program income starts from the end of the NFE’s fiscal year in which the program income is earned.

(6) Indirect cost rate proposals, cost allocations plans, etc., as specified in paragraph (g) of this provision.

(c) Copies of original records may be substituted for the original records if authorized by FAS.

(d) As outlined in 2 CFR 200.334, FAS will request transfer of certain records to its custody from the NFE when it determines that the records possess long-term retention value. However, in order to avoid duplicate recordkeeping, FAS or the pass-through entity may make arrangements for the NFE to retain any records that are continuously needed for joint use.

(e) As outlined in 2 CFR 300.336, FAS, inspectors general, the Government Accountability Office (GAO) and the pass-through entity or any of their duly authorized representatives have the right of timely and unrestricted access to any recipient records.

(1) This access extends to any books, documents, papers and other records of the recipient that are pertinent to the Federal award for audits, examinations, excerpts and transcripts. This right extends to the NFE’s personnel for timely interviews and discussions related to associated documents. The NFE also may view pertinent records of subrecipients and contractors for similar purposes (2 CFR 200.331(a)(5)).

(2) FAS or the GAO may authorize other government officials (e.g., program officials, FAS grants management staff, federal, or pass-through program officials and other officials) to access a NFE’s records. These officials’ responsibilities extend to compliance requirements for which the NFE is held accountable, as outlined in the terms and conditions of the Federal Award. If there are questions about such access, the NFE should contact FAS for guidance. If an audit begins before the three-year period expires, the relevant records must be retained until final resolution (2 CFR 200.33).

(3) The NFE shall provide access to any program site(s) to FAS or any of its authorized representatives.

(4) The access to a NFE’s Federal award records do not expire at the end of the retention period. Authorized Federal officials have access rights as long as the records are retained by the NFE (2 CFR 200.336(c)).

(f) No NFE shall disclose its records that are pertinent to a Federal award until the NFE provides notice of the intended disclosure with copies of the relevant records to FAS.

(g) Indirect cost rate proposals, cost allocations plans, etc. Paragraphs (g)(1) and (g)(2) of this provision apply to the following types of documents, and their supporting records: Indirect cost rate computations or proposals, cost allocation plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable (such as computer usage chargeback rates or composite fringe benefit rates).

(1) If submitted for negotiation. If the NFE submits to FAS or the subrecipients submits to the Recipient the proposal, plan, or other computation to form the basis for negotiation of the rate, then the 3-year retention period for its supporting records starts on the date of such submission.

(2) If not submitted for negotiation. If the NFE is not required to submit to FAS or the subrecipients is not required to submit to the Recipient the proposal, plan, or other computation for negotiation purposes, then the 3-year retention period for the proposal, plan, or other computation and its supporting records starts from the end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computation.

Applies to all CAs and DGs.

35. Revision of Budget

(a) The approved Federal award budget in Attachment C is the financial expression of the NFE's program as approved by FAS, pending approval of any subsequent budget.

(b) The NFE is required to report deviations from budget or project scope or objective, and request prior approvals from the FAS Program Manager for any of the following reasons:

(1) To change the scope or the objectives of the program (even if there is no associated budget revision requiring written approval) and/or revise the funding allocated among program objectives.

(2) To change a key person where specified in the awarding document.

(3) The disengagement from the project for more than three months or to allow a 25% reduction in time devoted to the project, by the approved project director or principal investigator.

(4) Additional Federal funding is needed.

(5) Where indirect costs have been authorized, the NFE plans to transfer funds budgeted for indirect costs to absorb increases in direct costs or vice versa.

(6) The inclusion, unless waived by FAS, of costs that require prior approval in accordance with 2 CFR 200, Subpart E – Cost Principles or 45 CFR Part 74 Appendix E, “Principles for Determining Costs Applicable to Research and Development under Awards Contracts with Hospitals,” or 48 CFR Part 31, “Contract Cost Principles and Procedures,” as applicable.

(7) The transfer of funds budgeted for participant support costs as defined in 2 CFR 200.75, Participant support costs to other categories of expense.

(8) Unless described in the application and funded in the approved Federal award, the subawarding, transferring or contracting out of any work under the Federal award. This provision does not apply to the acquisition of supplies, material, equipment or general support services.

(9) Changes in the amount of approved cost-sharing or matching provided by the NFE.

(c) FAS is under no obligation to reimburse the NFE for costs incurred in excess of the total amount obligated under the Federal award. If the total obligated amount under the Federal award has been increased, FAS will notify the NFE in writing of the increase and specify the new total obligated amount.

(d) When requesting approval for budget revisions, the NFE must use the same format for budget information that was used in the application.

(e) FAS must, within 30 calendar days from the date of receipt of the request for budget revisions, review the request and notify the NFE whether the budget revisions have been approved. If the revision is still under consideration at the end of 30 calendar days, FAS must inform the NFE in writing of the date when the NFE may expect the decision.

Applies to all CAs and DGs.

36. Rules of the Workplace

NFE employees, while engaged in work at FAS’ facilities, will abide by FAS’ standard operating procedures regarding the maintenance of laboratory notebooks, dissemination of information, equipment operation standards, hours of work, conduct, HSPD-12 requirements (access to buildings and computer systems), and other incidental matters stated in the rules and regulations of FAS.

Applies to all CAs and DGs when the NFE works at FAS’ (or USDA) facilities.

37. Subrecipient Notification

The Recipient shall require subrecipients under this Federal award to comply with the terms and conditions and the cost principle and audit requirements of 2 CFR Part 200 Subpart E—Cost Principles, as applicable.

Applies to all CAs and DGs.

38. Tangible Personal Property

The NFE is required to provide annual, award closeout, and disposition request reports related to their inventories of FAS furnished tangible personal property or those tangible personal property items acquired with funds under this Federal award using the SF-428 cover sheet and either: Annual Report, SF428-A; Final (Award Closeout) Report, SF-428-B; and a Disposition Request/Report, SF-428-C. A Supplemental Sheet, SF-428S, may be used to provide detailed individual item information.

Tangible personal property means property of any kind, except real property, that has physical existence. It includes equipment and supplies. It does not include copyrights, patents or securities.

Applies to all CAs and DGs.

39. Termination

As outlined in 2 CFR 200.339, this Federal award may be terminated, in whole or part, as follows:

(a) Federal awards may be suspended or terminated in whole or in part if paragraphs (1), (2), (3), or (4) of this provision apply.

(1) By FAS, with the consent of the NFE, in which case the two parties must agree upon termination conditions , including the effective date and, in the case of partial termination, the portion to be terminated;

(2) By the NFE upon sending to FAS or the pass-through entity written notification setting forth the reasons for termination, effective date, and in the case of partial termination, the portion to be terminated. However, if FAS or the pass-through entity determines in the case of partial termination that the reduced or modified portion of the Federal award or subaward will not accomplish the purposes for which the Federal award was made, FAS or the pass-through entity may terminate the Federal award in its entirety;

(3) By FAS or the pass-through entity, if the NFE materially fails to comply with the terms and conditions of this Federal award; or

(4) By FAS or the pass-through entity for cause.

(b) If, in the case of a partial termination, FAS determines that the remaining portion of the Federal award will not accomplish the purposes for which the Federal award was made, FAS may terminate the Federal award in its entirety.

(c) Upon termination of the Federal award, the NFE shall not incur any new obligations for the terminated portion of the Federal award after the effective date, and shall cancel as many outstanding obligations as possible. FAS shall allow full credit to the NFE for the United States Federal share of the non-cancelable obligations properly incurred by the NFE up to the effective date of the termination. The NFE shall refund excess funds to FAS within 60 days after the effective date of termination.

(d) When the Federal award is terminated or partially terminated, both FAS or the pass-through entity and the NFE remain responsible for compliance with the requirements in 2 CFR 200.343, Closeout and 2 CFR 200.344, Post-closeout adjustments and continuing responsibilities.

Applies to all CAs and DGs.

40. The NFE Shall Pt. 1

(a) The PI shall:

(1) Report and obtain approval for any change in the project budget;

(2) Report and obtain approval for any change in the scope or objectives of the project;

(3) Assure that technical project performance and financial status reports are submitted on a timely basis in accordance with the terms and conditions of this Federal award;

(4) Advise the PM of any issues that may affect the timely completion of the project;

(5) Assure that the NFE meets its commitments under the terms and conditions of this Federal award;

(6) Assure that appropriate acknowledgements of support are included in all publications;

(7) Assure that inventions are appropriately reported; and

(8) Provide FAS with a project plan for use for external peer review.

(b) {NFE Specific Performance Requirements}

Applies to all CAs and DGs.

41. Program Income

(a) Program income, as defined in 2 CFR Part 200.80, means gross income earned by the NFE that is directly generated by a supported activity or earned a result of the Federal award during the period of performance.

(b) Program income includes but is not limited to:

(1) income from fees for services performed;

(2) the use or rental or real personal property acquired under Federal awards;

(3) the sale of commodities or items fabricated under a Federal award;

(4) license fees and royalties on patents and copyrights; and

(5) principal and interest on loans made with Federal award funds.

(c) Interest earned on advances of Federal funds is not program income.

(d) Except as otherwise provided in Federal statutes, regulations, or the terms and conditions of the Federal award, program income does not include rebates, credits, discounts, and interest earned on any of them.

(e)Treatment of Program income. The NFE shall apply the standards set forth in this Provision to account for program income earned under the Federal award.

(1) If any program income is generated as a result of this Federal award, the income shall be applied using the alternative as described in 7 CFR 3016.25 and 3019.24; the deductive alternative is the preferred method, unless specifically authorized by the Signatory Official.

(2) Unless the terms and conditions of the Federal award provide otherwise, NFEs shall have no obligation to the U.S. Government regarding program income earned after the end of the project period. See also 2 CFR 200.307(f) and 2 CFR 200.333(e).

(3) When the NFE is accountable for program income earned after the period of Federal award support under the terms and conditions of the Federal award, the NFE will need to retain records for program income transactions after the period of performance. The retention period for the records pertaining to the earning of the program income starts for a period of three years from the end of the NFE’s fiscal year in which the program income is earned.

(4) Costs incidental to the generation of program income may be deducted from gross income to determine program income, provided these costs have not been charged to the Federal award and they comply with the applicable Cost Principles.

(5) Unless the terms and conditions of the Federal award provide otherwise, NFEs shall have no obligation to the U.S. Government with respect to program income earned from license fees and royalties for copyrighted material, patents, patent applications, trademarks, and inventions produced under a Federal award. However, Patent and Trademark Amendments (35 U.S.C. 18) apply to inventions made under an experimental, developmental, or research awards.

Applies to all CAs and DGs when program income is anticipated.

42. Publications, Audiovisuals and Acknowledgment of Support

(a) Publications. FAS and the Federal Government shall enjoy a royalty-free, nonexclusive, and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, any materials developed in conjunction with a Federal financial assistance activity or contract under such an agreement.

(1) NFEs must acknowledge FAS support, whether cash or in-kind, in any publications written or published with Federal award support and, if feasible, on any publication reporting the results of, or describing, a Federal-award-supported activity as follows: ‘‘This material is based upon work supported by the U.S. Department of Agriculture, Foreign Agricultural Service under Federal award No. (NFE should enter the applicable Federal award number here).’’

(2) All such material must also contain the following disclaimer unless the publication is formally cleared by FAS: ‘‘Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the U.S. Department of Agriculture.’’

(3) Any public or technical information related to work carried out under a Federal award shall be submitted by the developing party to the other for advice and comment. Information released to the public shall describe the contributions of both parties to the work effort. In the event of a dispute, a separate publication may be made with effective statements of acknowledgment and disclaimer.

(4) The NFE, or its designees, is not authorized to develop and publish documents that could be sold and distributed for profit.

(b) Media. NFEs shall acknowledge FAS support, as indicated in paragraph (a)(1) above, in any form of media (print, DVD, audio production, web, etc.) produced with Federal support that has a direct production cost to the NFE of over $5,000. Unless the terms of the Federal award provide otherwise, this requirement does not apply to media produced as research instruments or for documenting experimentation or findings and intended for presentation or distribution to a USDA/FAS audience.

(c) Audiovisual. FAS must determine ownership of the audiovisual production based on the parties’ contributions to the production. Where FAS and/or other Federal agencies contribute at least 50 percent of the total costs, including in-kind contributions, to develop an audiovisual production, it is owned by the FAS.

(1) If FAS determines that it has ownership, then FAS must obtain the audiovisual using the Office of Management and Budget Governmentwide audiovisual contracting procedures.

(2) If FAS determines that the NFE has ownership, then the NFE is not subject to USDA approvals and the governmentwide audiovisual contracting procedures.

(3) FAS must obtain a copy of the NFE's audiovisual production and retain the right to duplicate the video for Government purposes. FAS must use Government procurement procedures to duplicate the video for FAS purposes.

(4) Any audiovisual which is produced with Federal award support and which has a direct production cost to the recipient of over $5,000 must contain an acknowledgement of FAS support.

(d) Printing. Title 7, United States Code, section 3318(b) does not preclude the applicability of Government Printing Office regulations when Federal dollars are used for printing, regardless of whether the printing is accomplished by the NFE or by contract.

(e) Miscellaneous.

(1) Publication and Media Releases Requirement. The NFE must provide the GMO and Project Manager with one copy of all published works developed under the Federal award and with lists of other written work produced under the grant or cooperative agreement.

(2) Nondiscrimination Statement – Printed, Electronic, or Audiovisual Material Requirement. The NFE shall include the following statement, in full, in any printed, audiovisual material, or electronic media for public distribution developed or printed with any Federal funding: “In accordance with Federal law and U.S. Department of Agriculture policy, this institution is prohibited from discriminating on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, marital status, familial status, sexual orientation, or because of all or part of an individual’s income is derived from any public assistance source. (Not all prohibited bases apply to all programs.) To file a complaint of discrimination, write USDA, Director, Office of Civil Rights, Room 326-W, Whitten Building, 1400 Independence Avenue, SW, Washington, DC 20250-9410 or call (202) 720-5964 (voice and TDD). USDA is an equal opportunity provider and employer.”) If the material is too small to permit the full statement to be included, the material must, at minimum, include the following statement, in print size no smaller than the text: "This institution is an equal opportunity provider."

Applies to all CAs and DGs when publication of any printed, audiovisual, or electronic material is contemplated.

43. Davis-Bacon and Service Contract Act

Additionally, federal wage provisions (Davis-Bacon or Service Contract Act) are applicable to any contract developed and awarded under this Federal award where all or part of the funding is provided with FAS funds. Davis-Bacon wage rates apply on all public works contracts in excess of $2,000 and Service Contract Act wage provisions apply to service contracts in excess of $2,500.

Applies to all CAs and DGs when procurement of goods and/or services are anticipated.

44. Funding Equipment and Supplies

Federal funding under this Federal award is available for reimbursement of the NFE’s purchase of equipment and supplies. Equipment is defined as tangible personal property (including information technology systems) having a useful life of more than one year and a per-unit acquisition cost which equals or exceeds the lesser of the capitalization level established by the NFE for financial statement purposes, or $5,000. Supplies are all tangible personal property that is not equipment. A computing device is a supply if the acquisition cost is less than the lesser of the capitalization level established by the NFE for financial statement purposes or $5,000, regardless of the length of its useful life.

Applies to all CAs & DGs when FAS is funding supplies.

45. Copyrighting

(a) Allocation of rights of copyrights must be in accordance with 2 CFR 200.315 and 2 CFR 200.448.

(b) The NFE may copyright any work that is subject to copyright and was developed, or for which ownership was acquired, by the NFE, or jointly by the Federal Government and the NFE, under this Federal award. FAS reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so for Federal purposes. The NFE may not copyright text, photographs, or materials created by FAS or other USG employees on Government time and/or composed on Government equipment.

(b) NFEs are subject to applicable regulations governing patents and inventions, including governmentwide regulations issued by the Department of Commerce at 37 CFR part 401, ‘‘Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements.’’

(c) FAS has the right to:

(1) Obtain, reproduce, publish or otherwise use the data first produced under this Federal award; and

(2) Authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes.

(d) In addition, in response to a Freedom of Information Act (FOIA) request for research data relating to published research findings produced under this Federal award that were used by the Federal Government in developing an Agency action that has the force and effect of law, FAS shall request, and the NFE shall provide, within a reasonable time, the research data so that they can be made available to the public through the procedures established under the FOIA. If FAS obtains the research data solely in response to a FOIA request, FAS may charge the requester a reasonable fee equaling the full incremental cost of obtaining the research data. This fee should reflect costs incurred by the Agency, the Recipient, and applicable subrecipients. This fee is in addition to any fees FAS may assess under the FOIA (5 U.S.C. 552(a)(4)(A)).

(e) The following definitions apply for purposes of paragraph (d) of this provision:

(1) Research data is defined as the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. This ‘‘recorded’’ material excludes physical objects (e.g., laboratory samples). Research data also do not include:

(i) Trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are published, or similar information which is protected under law; and
(ii) Personnel and medical information and similar information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as information that could be used to identify a particular person in a research study.

(2) Published is defined as either when:

(i) Research findings are published in a peer-reviewed scientific or technical journal; or
(ii) A Federal Agency publicly and officially cites the research findings in support of an Agency action that has the force and effect of law. “Used by the Federal Government in developing an Agency action that has the force and effect of law” is defined as when an Agency publicly and officially cites the research findings in support of an Agency action that has the force and effect of law.
(iii) All rights, title, and interest in any Subject Invention made solely by employee(s) of FAS shall be owned by FAS. All rights, title, and interest in any Subject Invention made solely by at least one (1) employee of FAS and at least one (1) employee of the NFE shall be jointly owned by FAS and the NFE, subject to the provisions of 37 CFR part 401.
(iv) FAS shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States the subject invention throughout the world.

Applies to all CAs and DGs when development or publication of any printed, audiovisual, or electronic material is contemplated.

46. Patent Rights

(a) Allocation of rights of patents must be in accordance with 2 CFR 200.315 and 2 CFR 200.448.

(b) Each agreement awarded by the NFE to a small business firm, non-profit organization, or university which is to be performed in the United States, its possessions, or Puerto Rico and has as a purpose the performance of experimental, development, or research work, must contain the Patents Rights Provision.

(c) Definitions:

(1) Invention. Any invention or discovery which is or may be patentable, or otherwise protectable under Title 35 of the United States Code (U.S.C.), or any novel variety of plant which is or may be protected under the Plant Variety Protection Act (7 U.S.C. 2321 et seq.).

(2) Subject Invention. Any invention of the NFE conceived or first actually reduced to practice in the performance of work under this Federal award, provided that in the case of a variety of plant, the date of determination (as defined in section 41(d) of the Plant Variety Protection Act, 7 U.S.C. 2401(d) must also occur during the period of the Federal award performance.

(3) Practical Application. To manufacture in the case of a composition or product, to practice in the case of a process or method, or to operate in the case of a machine or system and, in each case, under such conditions as to establish that the invention is being utilized and that its benefits are, to the extent permitted by law or Government regulations available to the public on reasonable terms.

(4) Made. When used in relation to any invention, the conception or first actual reduction to practice of such invention.

(5) Small Business Firm. A small business concern as defined at section 2 of Public Law 85-536 (15 U.S.C. 632) and implementing regulations of the administrator of the Small Business Administration. For the purpose of this provision, the size standard for small business concerns involved in Government procurement and subgranting as 13 CFR 121.3-8 and 13 CFR 121.3-12, respectively, will be used.

(6) Non-Profit Organization. A university or other institution of higher education or an organization of the type described in section 501 (c) (3) of the Internal Revenue Code of 1954 Internal Revenue Code (26 U.S.C. 501c) and exempt from taxation under section 501(a) of the Internal Revenue Code (26 U.S.C. 501(a)) or any nonprofit scientific or educational organization qualified under a State nonprofit organization statute.

(b) Allocation of Principal Rights.

(1) All rights, title, and interest in any Subject Invention made solely by employee(s) of FAS shall be owned by FAS.

(2) All rights, title, and interest in any Subject Invention made solely by employee(s) of the NFE shall be owned by the NFE.

(3) All rights, title, and interest in any Subject invention made jointly by at least one (1) employee of FAS and at least one (1) employee of the NFE shall be jointly owned by FAS and the NFE.

(4) With respect to any subject invention in which the NFE retains title, the Federal Government shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States any subject invention throughout the world.

(c) Invention Disclosure, Election of Title and Filing of Patent Applications by the NFE.

(1) In accordance with 37 CFR 401.4, the NFE must disclose each subject invention to FAS within 2 months after the inventor discloses it in writing to personnel responsible for patent matters. The disclosure to FAS shall be in the form of a written report and must identify the Federal award under which the invention was made and the inventor(s). It must be sufficiently complete in technical detail to convey a clear understanding, to the extent known at the time of the disclosure, of the nature, purpose, operation, and the physical, chemical, biological or electric characteristics of the invention. The disclosure must also identify any publication, on sale of public use of the invention, and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure. In addition, after disclosure to FAS, the NFE shall promptly notify FAS of the acceptance of any manuscript describing the invention for publication or of any on sale or public use planned by the NFE.

(2) The NFE shall elect in writing whether or not to retain title to any such invention by notifying FAS within 2 years of disclosure by the NFE; provided that in any case where publication, on sale or public use has initiated the 1 year statutory period wherein valid patent protection can still be obtained in the United States, the period for election of title may be shortened by FAS to a date that is no more than 60 days prior to the end of the statutory period.

(3) The NFE shall file its initial patent application on an elected invention within 1 year after election or, if earlier, prior to the end of any statutory period wherein valid protection can be obtained in the United States after publication, on sale, or public use. The NFE shall file patent applications in additional countries within either 10 months from the corresponding initial patent application or 6 months from the date permission is granted by the Commissioner of Patents and trademarks to file foreign patent applications where such filing has been prohibited by a Secrecy Order.

(4) Requests for extension of the time for disclosure to FAS, election, and filing may, at the discretion of FAS, be granted.

(d) Conditions when the Government May Obtain Title. The NFE shall convey to FAS, upon written request, title to any subject invention:

(1) If the NFE fails to disclose or elect the subject invention within the times specified in item (c) herein or elects not to retain title; provided that FAS may only request title within 60 days after learning of the failure of the NFE to disclose or elect within the specified times.

(2) In those countries in which the NFE fails to file patent applications within the times specified in item (c)(3) herein; provided, however, that if the NFE has/have filed a patent application in a country after the times specified in item (c)(3), but prior to its receipt of the written request of FAS, the NFE shall continue to retain title in that country.

(3) In any country in which the NFE decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in reexamination or opposition proceeding on, a patent on a subject invention.

(e) Minimum Rights to the NFE and Protection of the Contractor Right to File.

(1) The NFE shall retain a nonexclusive, royalty-free license throughout the world in each subject invention to which the Government obtains title, except if the NFE fails to disclose the subject invention within the times specified in item (c) herein. The NFE’s license extends to its domestic subsidiaries and affiliates, if any, within the corporate structure of which the NFE is a party and includes the right to grant sublicenses of the same scope to the extent the NFE was legally obligated to do so at the time the Federal award was awarded. The license is transferable only with approval of FAS, except when transferred to the successor of that party of the NFE’s business to which the invention pertains.

(2) The NFE‘s domestic license may be revoked or modified by FAS to the extent necessary to achieve expeditious practical application of the subject invention, pursuant to an application for an exclusive license submitted in accordance with applicable provisions at 37 CFR Part 404. This license will not be revoked in that field of use or the geographical areas in which the NFE has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public. The license in any foreign country may be revoked or modified at the discretion of FAS to the extent the NFE, its licensees, or its domestic subsidiaries or affiliates have failed to achieve practical application in that foreign country.

(3) Before revocation or modification of the license FAS shall furnish the NFE a written notice of its intention to revoke or modify the license, and the NFE shall be allowed 30 days (or such other time as may be authorized by FAS for good cause shown by the NFE) after the notice to show cause why the license should not be revoked or modified. The NFE has the right to appeal, in accordance with applicable regulations in 37 CFR Part 404 concerning the licensing Government-owned inventions, any decision concerning the revocation or modification of its license.

(f) Action to Protect the Government's Interest

(1) The NFE agrees to execute, or to have executed, and promptly deliver to FAS all agreements necessary to:

(i) establish or confirm the rights the Government has throughout the world in those subject inventions to which the NFE elects to retain title; and
(ii) Convey title to FAS when requested under paragraph (c) herein and to enable the Government to obtain patent protection throughout the world in that subject invention.

(2) The NFE agrees to require, by written agreement, its employees, other than clerical and non-technical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the NFE each subject invention made under the disclose provisions of paragraph (c) herein and to execute all papers necessary to file patent applications on subject inventions and to establish the Government's rights in the subject invention. This disclosure format should require, at a minimum, the information required by paragraph (c) above, and to execute all papers necessary to file patent applications on subject inventions and to establish the government's rights in the subject inventions. This disclosure format should require, at a minimum, the information required by paragraph (c)(1). The NFE shall instruct such employees' agreements or other suitable educational programs on the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to United States or foreign statutory bars.

(2) The NFE shall notify FAS of any decision not to continue the prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceeding on a patent, in any country, not less than 30 days before the expiration of the response period required by the relevant patent office.

(3) The NFE agrees to include, within the specification of any United States patent application and any patent issuing thereon covering a subject invention, the following statement: This invention was made with the Government support under (insert FAS award number) awarded by FAS. The Government has certain rights in this invention.

(g) Subcontracts

(1) The NFE shall include this provision, suitably modified to identify the parties, in all subcontracts, regardless of tier, for experimental, developmental, or research work to be performed by a small business firm or domestic nonprofit organization. The subcontractor shall retain all rights provided for the NFE in this provision, and the NFE shall not, as part of the consideration for awarding the subgrant or subcontract under the Federal award, obtain rights in the subgrantee's or subcontractor's subject inventions.

(2) The NFE shall include in all other subcontracts the patent rights provision, regardless of tier, for experimental, developmental, or research work.

(3) In the case of subcontracts, at any tier, when the prime award with the Federal agency was a contract (but not a grant or cooperative agreement), the agency, subcontractors, and the contractor agree that the mutual obligations of the parties created by this provision constitute a contract between the subcontractor and the Federal agency with respect to those matters covered by this provision; provided, however, that nothing in this paragraph is intended to confer any jurisdiction under the Contract Disputes Act in connection with proceedings under paragraph (j) of this provision.

(h) Reporting on Utilization of Subject Invention. The NFE agrees to submit, on request, periodic reports no more frequently than annually on the utilization of a subject invention or on efforts at obtaining such utilization that are being made by the NFE or its licensees or assignees. Such reports must include information regarding the status of development, date of first commercial sale or use, gross royalties received by the NFE, and such other data and information as FAS may reasonably specify. The NFE also agrees to provide additional reports as may be requested by FAS in connection with any march-in proceeding undertaken by FAS in accordance with paragraph (j) of this provision. As required by 35 U.S.C. 202(c)(5), FAS agrees it shall not disclose such information to persons outside the government without permission of the NFE.

(i) Preference for United States Industry. Notwithstanding any other part of this provision, the NFE agrees that neither it nor any assignee shall grant to any person the exclusive right to use or sell any subject invention in the United States unless such person agrees that any product embodying the subject invention will be manufactured substantially in the United States. However, in individual cases the requirement for such a Federal award may be waived by FAS upon a showing by the NFE or its assignee that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States, or that under the circumstances, domestic manufacture is not commercially feasible.
(j) March-in-Rights. The NFE agrees that with respect to any subject invention in which it has acquired title, FAS has the right in accordance with the procedures in 37 CFR 401.6 and any supplemental regulations of FAS to require the NFE, an assignee or exclusive licensee of a subject invention to grant a nonexclusive, partially exclusive, or exclusive license in any field of use to a responsible applicant or applicants, upon terms that are reasonable under the circumstances, and if the NFE assignee, or exclusive licensee refuses such a request, FAS has the right to grant such a license itself if FAS determines that:

(1) Such action is necessary because the NFE or assignee has not taken, or is not expected to take within a reasonable time, effective steps to achieve practical application of the subject invention in such field of use;

(2) Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by the NFE, assignee, or their licensees;

(3) Such action is necessary to meet requirements for public use specified by Federal regulations and such requirements are not reasonably satisfied by the NFE, assignee, or licensees; or

(4) Such action is necessary because the agreement required by paragraph (i) of this provision has not been obtained or waived, or because a licensee of the exclusive right to use or sell any subject invention in the United States is in breach of such Federal award.

(k) Special Provisions for Contracts with Non-profit Organizations. If the NFE/contractor is a non-profit organization, it agrees that:

(1) Rights to a subject invention in the United States may not be assigned without the approval of FAS, except where such assignment is made to an organization which has as one of its primary functions the management of inventions provided that such assignee shall be subject to the same provisions as the NFE.

(2) The NFE shall share royalties collected on a subject invention with the inventor, including Federal employee co-inventors (when FAS deems it appropriate) when the subject invention is assigned in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10.

(3) The balance of any royalties or income earned by the NFE with respect to subject inventions, after payment of expense (including payments to inventor) incidental to the administration of subject inventions will be utilized for the support of scientific research or education; and

(4) It shall make efforts that are reasonable under the circumstances to attract licensees of subject invention that are small business firms and that it shall give preference to a small business firm when licensing a subject invention if the NFE determines that the small business firm has a plan or proposal for marketing the invention which, if executed, is equally as likely to bring the invention to practical application as any plans or proposals from applicants that are not small business firms; provided, that the NFE is also satisfied that the small business firm has the capability and resources to carry out its plan or proposal. The decision whether to give preference in any specific case will be at the discretion of the NFE. However, the NFE agrees that the Secretary may review the NFE’s licensing program and decisions regarding small business applicants, and the NFE shall negotiate changes to its licensing policies, procedures, or practices with the Secretary when the Secretary's review discloses that the NFE could take reasonable steps to implement more effectively the requirements of this paragraph.

(l) Communication

(1) Communications relating to the administration of this provision and disclosure statements should be directed to the GMO.

(2) Practice statements are also made to the Patent Advisor. NOTE: Exceptions for Not Using the Patent Rights Provision:

(i) When the Federal award is for the operation of a federally funded research and development center of a government-owned production facility;
(ii) In exceptional circumstances when it is determined by FAS that restriction or elimination of the right to retain title to any subject invention shall better promote the policy and objective of Title 35, Chapter 18 of the United States Code; or
(iii) When it is determined by a Government authority which is authorized by statute or Executive Order to conduct foreign intelligence or counter intelligence activities that the restriction or elimination of the right to retain title to any subject invention is necessary to protect the security of such activities.

(3) Any determination under this provision must be in writing and accompanied by a written statement of facts and must contain such information as FAS field office deems relevant and, at a minimum, must:

(i) Identify the small business firm or nonprofit organization involved.
(ii) Describe the extent to which FAS action restricted or eliminated the right to retain title to a subject invention.
(iii) State the facts and rationale supporting FAS action.
(iv) Provide supporting documentation for those facts and rationale.
(v) Indicate the nature of any objections to FAS action and provide any documentation in which those objections appear. A copy of each such determination and written statement of facts must be sent to the Director, Fiscal and Public Safety, Washington Office, for review and forwarded to the Comptroller General of the United States within 30 days after the awarding of the applicable Federal award. In some cases of determinations applicable to Federal awards with small business firms, copies must also be sent to the Chief Counsel for advocacy of the Small Business Administration.

Applies to all CAs and DGs when patents are anticipated.

47. Research Misconduct

(a) The NFE bears the primary responsibility for prevention and detection of research misconduct and for the inquiry, investigation and adjudication of research misconduct alleged to have occurred in association with their own institution.

(b) The NFE and its employees shall comply with the Code of Scientific Ethics of USDA. See, http://www.fs.fed.us/research/publications/fs_code_of%20_scientific_ethics.pdf.

(c) The NFE shall:

(1) Maintain procedures for responding to allegations or instances of research misconduct that has the following components:

(i) Objectivity;
(ii) Due process;
(iii) Whistle blower protection;
(iv) Confidentiality;
(v) Timely resolution;

(2) Promptly conduct an inquiry into any allegation of research misconduct;

(3) Conduct an investigation if an inquiry determines that the allegation or apparent instance of research misconduct has substance;

(4) Provide appropriate separation of responsibilities between those responsible for inquiry and investigation, and those responsible for adjudication;

(5) Advise FAS of outcome at end of inquiries and investigations into allegations or instances of research misconduct; and

(6) Upon request, provide FAS, upon request, hard copy (or website address) of their policies and procedures related to research misconduct.
(d) Research misconduct or allegations of research misconduct shall be reported to the USDA Research Integrity Officer (RIO) and/or to the USDA, Office of Inspector General (OIG) Hotline.

(1) The USDA RIO can be reached at: USDA Research Integrity Officer, 214–W Whitten Building, Washington, DC 20250, Telephone: 202–720–5923, Email: researchintegrity@usda.gov.

(2) The USDA OIG Hotline can be reached on: 1–800–424–9121.

Applies to all CAs and DGs when research activities are anticipated.

48. USDA Guidelines for Quality of Information

This Federal Award is subject to the “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies; Republication” and the “USDA Guidelines for Quality of Information” which are found at http://www.fs.fed.us/qoi/.

Applies to all CAs and DGs.

49. Security Issues

(a) The NFE is encouraged to obtain the latest Department of State Travel Advisory Notices before traveling. These Notices are available to the general public and may be obtained directly from the State Department, or via Internet. Where security is a concern in a specific region, NFEs may choose to notify the US Embassy of their presence when they have entered the country. This may be especially important for long-term posting.

(b) If security issues are affecting the NFE’s ability to meet time lines and/or to substantially accomplish the goals and objectives established under this Federal award, then the NFE must contact FAS immediately.