Grants and Cooperative Agreements - National Policy General Terms and Conditions

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.

Applies to all CAs and DGs.

1. 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.

Applies to all CAs and DGs.

1. Assurance Regarding Felony Conviction or Tax Delinquent Status for Corporate Applicants

This Federal award is subject to the provisions contained in the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2012, P.L. No. 112-55, Division A, Sections 738 and 739 regarding corporate felony convictions and corporate federal tax delinquencies. Accordingly, by accepting this Federal award the NFE acknowledges that it: (1) does not have a tax delinquency, meaning that it is not subject to any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, and (2) has not been convicted (or had an officer or agent acting on its behalf convicted) of a felony criminal violation under any Federal or State law within 24 months preceding the Federal award, unless a suspending and debarring official of the United States Department of Agriculture has considered suspension or debarment of the recipient corporation, or such officer or agent, based on these convictions and/or tax delinquencies and determined that suspension or debarment is not necessary to protect the interests of the Government. If the NFE fails to comply with these provisions, FAS will annul this Federal award and may recover any funds the NFE has expended in violation of sections 738 and 739.

Applies to all CAs and DGs.

1. Best Practices for Collection and Use of Personally Identifiable Information (PII)

Personally identifiable information (PII) means any information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual (for more information see 2 CFR Part 200.79, Personally Identifiable Information (PII)).
All NFEs who collect PII are required to have a publically-available privacy policy that describes standards on the usage and maintenance of the PII they collect.

Applies to all CAs and DGs.

1. Age Discrimination Act of 1975

All NFEs must comply with the requirements of the Age Discrimination Act of 1975 (Title 42 U.S. Code, § 6101 et seq.), which prohibits discrimination on the basis of age in any program or activity receiving Federal financial assistance.

Applies to all CAs and DGs.

1. American with Disabilities Act of 1990

All NFEs must comply with the requirements of Titles I, II, and III of the Americans with Disabilities Act, which prohibits NFEs from discriminating on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities. (42 U.S.C. §§ 12101– 12213).

Applies to all CAs and DGs.

1. Building and Computer Access by Non-U.S. Foreign Agricultural Service Personnel

The NFE may be granted access to U.S. Foreign Agricultural Service facilities and/or computer systems to accomplish work described in the Operating Plan or Statement of Work. All non-government employees with unescorted access to U.S. Foreign Agricultural Service facilities and computer systems must have background checks following the procedures established by USDA Directives 3505 and Departmental Manual 4620-02. Those granted computer access must fulfill all U.S. Foreign Agricultural Service requirements for mandatory security awareness and role-base advanced security training, and sign all applicable U.S. Foreign Agricultural Service statements of responsibilities.

Applies to all CAs and DGs when the Recipient or their subcontractors will have unescorted access to USDA/FAS facilities or computer systems. Prior to granting access to the computer system or facility, contact FAS Information Security & Risk Management Branch.

8. Universal Identifier and System of Award Management (SAM)

All NFEs are required to comply with the requirements set forth in the government-wide Award Term regarding the System for Award Management and Universal Identifier Requirements located at 2 C.F.R. Part 25, Appendix A, the full text of which is incorporated here by reference in the terms and conditions of your award.

Applies to all CAs and DGs, except to avoid compromising classified information or national security or jeopardizing the personal safety of the entity's clients.

1. Civil Rights Act of 1968

All NFEs must comply with Title VIII of the Civil Rights Act of 1968, which prohibits NFEs from discriminating in the sale, rental, financing, and advertising of dwellings, or in the provision of services in connection therewith, on the basis of race, color, national origin, religion, disability, familial status, and sex (42 U.S.C. § 3601 et seq.), as implemented by the Department of Housing and Urban Development at 24 C.F.R. Part 100. The prohibition on disability discrimination includes the requirement that new multifamily housing with four or more dwelling units—i.e., the public and common use areas and individual apartment units (all units in buildings with elevators and ground-floor units in buildings without elevators)—be designed and constructed with certain accessible features (See 24 C.F.R. § 100.201).

Applies to all CAs and DGs.

1. Debarment and Suspension

NFEs must comply with the provisions on governmentwide suspension and debarment in Subpart C of 2 CFR Part 180, Responsibilities of Participants Regarding Transactions Doing Business with Other Persons, as supplemented by USDA’s regulations at Subpart C of 2 CFR Part 417, Responsibilities of Participants Regarding Transactions. These provisions restrict Federal awards, subawards and contracts with certain parties that are debarred, suspended or otherwise excluded from or ineligible for participation in Federal programs or activities.

The NFE shall immediately inform FAS if they or any of their principals are presently excluded, debarred, or suspended from entering into covered transactions with the Federal Government according to the terms of 2 CFR Part 180 as supplemented by 2 CFR Part 417. A listing of debarred or suspended entities can be found at www.sam.gov. Additionally, should the NFE or any of their principals receive a transmittal letter or other official Federal notice of debarment or suspension, they shall notify FAS without undue delay. This applies whether the exclusion, debarment, or suspension is voluntary or involuntary. The NFE must include this provision, or a similar one, as term or condition in any lower tier covered transaction.

The NFE is responsible for requiring the inclusion of a similar term or condition in any lower tier covered transaction, as described in Subpart B of 2 CFR Part 180, Covered Transactions, as supplemented by USDA’s regulations at Subpart B of 2 CFR Part 417, Covered Transactions.

The NFE is also responsible for further requiring the inclusion of a similar term or condition in any subsequent lower tier covered transaction. The NFE acknowledges that failing to disclose the information required under 2 CFR 180.335 may result in the termination of the Federal award, or pursuance of other available remedies, including suspension and debarment.

Applies to all CAs and DGs.

11. Drug-Free Workplace

(a) The NFE agrees to comply with 7 CFR Part 3021 “Governmentwide Requirements for Drug-Free Workplace (Financial Assistance).” The NFE will make a good faith effort, on a continuing basis, to maintain a drug-free workplace. As part of that effort, the NFE will publish a drug-free workplace statement and provide a copy to each employee who will be engaged in the performance of any project/program that receives Federal funding. The statement must:
(1) Tell the employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in its workplace;
(2) Specify the actions the NFE will take against employees for violating that prohibition; and
(3) Let each employee know that, as a condition of employment under any instrument, he or she:
(i) Must abide by the terms of the statement; and
(ii) Must notify the NFE in writing if he or she is convicted for a violation of a criminal drug statute occurring in the workplace, and must do so no more than five calendar days after the conviction.
(b) The NFE agrees that it will establish an ongoing drug-free awareness program to inform employees about:
(1) The dangers of drug abuse in the workplace;
(2) The NFE’s policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation and employee assistance programs; and
(4) The penalties that the NFE may impose upon them for drug abuse violations occurring in the workplace.
(c) The policy statement and program must be in place as soon as possible, no later than the 30 days after the effective date of this Federal award, or the completion date of this Federal award, whichever occurs first, unless the NFE obtains FAS’ express written approval.
(d) The NFE agrees to immediately notify FAS if an employee is convicted of a drug violation in the workplace. The notification must be in writing, identify the employee’s position title, the NFE number of each instrument on which the employee worked. The notification must be sent to FAS within ten calendar days after the NFE learns of the conviction.
(e) Within 30 calendar days of learning about an employee’s conviction, the NFE must either:
(1) Take appropriate personnel action against the employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973 (29 USC 794), as amended; or
(2) Require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for these purposes by a Federal, State or local health, law enforcement, or other appropriate agency.

Applies to all CAs and DGs.

1. Education Amendments of 1972 (Equal Opportunity in Education Act) – Title IX

All NFEs must comply with the requirements of Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.), which provide that no person in the United States will, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.

Applies to all CAs and DGs.

1. Eligible Workers

As related to workers hired for employment within the United States, the NFE shall ensure that all such employees complete the I-9 form to certify that they are eligible for lawful employment under the Immigration and Nationality Act (8 USC 1324a). The NFE shall comply with regulations regarding certification and retention of the completed forms. These requirements also apply to any contract or supplemental agreements awarded under this Federal award.

Applies to all CAs and DGs.

1. Energy Policy and Conservation Act

All recipients must comply with the requirements of 42 U.S.C. § 6201 which contain policies relating to energy efficiency that are defined in the state energy conservation plan issued in compliance with this Act.

Applies to all CAs and DGs.

1. False Claims Act and Program Fraud Civil Remedies

All NFEs must comply with the requirements of 31 U.S.C. § 3729- 3733 which prohibits the submission of false or fraudulent claims for payment to the Federal Government. See 31 U.S.C. § 3801-3812 which details the administrative remedies for false claims and statements made.

Applies to all CAs and DGs.

1. Federal Funding Accountability and Transparency Act (FFATA) Reporting

In accordance with 2 CFR 200.211 and statutory requirements for Federal spending transparency (e.g., FFATA), except as noted in this section, for applicable Federal awards FAS must announce all Federal awards publicly and publish the required information on a publicly available OMB-designated
governmentwide website (at time of publication, www.USAspending.gov).

Nothing in this section may be construed as requiring the publication of information otherwise exempt under the Freedom of Information Act (5 U.S.C 552), or controlled unclassified information pursuant to Executive Order 13556.

Applies to all CAs and DGs.

1. Freedom of Information Act (FOIA)

Public access to Federal award records shall not be limited, except when such records must be kept confidential and would have been exempted from disclosure pursuant to "Freedom of Information" regulations (5 U.S.C. 552).

Applies to all CAs and DGs.

1. Hotel and Motel Fire Safety Act of 1990

In accordance with Section 6 of the Hotel and Motel Fire Safety Act of 1990, 15 U.S.C. § 2225a, all NFEs must ensure that all conferences, meetings, convention, or training space funded in whole or in part with Federal funds complies with the fire prevention and control guidelines of the Federal Fire Prevention and Control Act of 1974, as amended, 15 U.S.C. § 2225.

Applies to all CAs and DGs.

1. Implementation of E.O. 13224 – Executive Order on Terrorist Financing

Presidentially signed Executive Orders and U.S. law prohibit transactions with, and the provision of resources and support to, individuals and organizations associated with terrorism. Except when the United States Government provides a background investigation during the visa review process for an international participant on the request of USDA, it is the legal responsibility of the NFE to ensure compliance with Executive Order 13224 and related laws. This provision must be included in all subawards and contracts issued under this Federal award.
Key responsibilities include, but are not limited to:
(a) The NFE has not provided, and will take all reasonable steps to ensure that they do not and will not knowingly provide, material support or resources to any individual or entity that commits, attempts to commit, advocates, facilitates, or participates in terrorist acts, or has committed, attempted to commit, facilitated, or participated in terrorist acts.
(b) Specifically, in order to comply with NFE obligations under paragraph (a), the NFE will take the following steps:
(1) Before providing any material support or resources to an individual or entity, the NFE will verify that the individual or entity does not appear:
(i) On the master list of Specially Designated Nationals and Blocked Persons, which list is maintained by the U.S. Treasury’s Office of Foreign Assets Control (OFAC) and is available online at OFAC’s website: http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx; or

(ii) On any supplementary list of prohibited individuals or entities that may be provided by FAS to the NFE.
(2) The NFE will also verify that the individual or entity has not been designated by the United Nations Security (UNSC) sanctions committee established under UNSC Resolution 1267 (1999) (the “1267 Committee”) [individuals and entities linked to the Taliban, Usama bin Laden, or the Al Qaida Organization]. To determine whether there has been a published designation of an individual or entity by the 1267 Committee, the NFE should refer to the consolidated list available online at the Committee’s website: http://www.un.org/Docs/sc/committees/1267/1267ListEng.htm.

(3) Before providing any material support or resources to an individual or entity, the NFE will consider all information about that individual or entity of which it is aware or that is available to the public.
(4) The NFE will implement reasonable monitoring and oversight procedures to safeguard against assistance being diverted to support terrorist activity.
(c) For purposes of this Certification:
(1) “Material support and resources” means currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.
(2) “Terrorist act” means:
(i) An act prohibited pursuant to one of the 12 United Nations Conventions and Protocols related to terrorism (see UN terrorism conventions Internet site: http://untreaty.un.org/English/Terrorism.asp); or

(ii) An act of premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents; or
(iii) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.
(3) “Entity” means a partnership, association, corporation, or other organization, group or subgroup.

Applies to all CAs and DGs.

1. Civil Rights Act of 1964 – Title VI

All NFEs must comply with the requirements of Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), which provides that no person in the United States will, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. USDA implementing regulations for the Act are found at 7 CFR Part 15, Subpart A and Subpart C.

Applies to all CAs and DGs.

1. Limited English Proficiency (Civil Rights Act of 1964, Title VI)

All NFEs must comply with the Title VI of the Civil Rights Act of 1964 (Title VI) prohibition against discrimination on the basis of nation origin, which requires that recipients of federal financial assistance take reasonable steps to provide meaningful access to persons with limited English proficiency (LEP) to their programs and services. For additional assistance and information regarding language access obligations, please refer to http://www.lep.gov .

Applies to all CAs and DGs.

1. Lobbying Prohibitions

All NFEs must comply with 31 U.S.C. § 1352, which provides that none of the funds provided under an award may be expended by the NFE to pay any person to influence, or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any Federal action concerning the award or renewal.

Applies to all CAs and DGs.

1. Members of U.S. Congress

Pursuant to 41 U.S.C. 22, no United States member of, or United States delegate to, Congress shall be admitted to any share or part of this Federal award, or benefits that may arise there from, either directly or indirectly.

Applies to all CAs and DGs.

1. Nondiscrimination

The NFE assures compliance with the following requirement: No person in the United States shall, on the grounds of race, color, national origin, gender, age, religion, political beliefs, disability, marital status, familial status, sexual orientation, or because all or part of an individual’s income is derived from any public assistance source, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any project or activity under this Federal award.
Specific institutions and organizations have exemptions from the nondiscrimination requirements regarding religious preference, age limitations, gender focus, and tax exemption under section 501(a) of the Internal Revenue Code of 1954. Even though a basis or protected category is exempt in the operation of the organization, other civil rights provisions and protected bases may still apply.
These exemptions for instructional organizations are:
(a) Educational institutions controlled by religious organizations.
(b) Military and merchant marine educational organizations.
(c) Membership qualifications in organizations, such as social fraternities and sororities, YMCA, YWCA, Girl Scouts, Boy Scouts, Camp Fire Girls, and voluntary youth services organizations.
(d) Additionally, some activities have exemptions: Activities sponsored by the American Legion, such as selection of students relative to Girls State Conferences, Girls Nation Conferences, Boys State Conferences, and Boys Nation Conferences; father-son and mother-daughter activities at educational institutions if such activities are available to both gender groups equally; financial awards and scholarships that result from participation in pageants and contests limited to one gender.
To file a complaint of discrimination write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, S.W., Washington, D.C. 20250-9410 or call (800) 795-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider and employer. The NFE should post within a common area of their offices a copy of the “Justice for All” poster, AD-475A.

Applies to all CAs and DGs.

1. Positions of Influence

The NFE shall establish safeguards to prohibit employees from using their positions for a purpose that is or gives the appearance of being motivated by a desire for private gain for themselves or others, particularly those with whom they have family, business, or other ties.

Applies to all CAs and DGs.

1. Questionnaires and Survey Plans

The NFE is required to submit to FAS copies of questionnaires and other forms for clearance in accordance with the Paperwork Reduction Act of 1980 and 5 CFR part 1320.

Applies to all CAs and DGs, when information collections under the Paper Reduction Act are anticipated.

27. Rehabilitation Act of 1973

All NFEs must comply with the requirements of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended, which provides that no other qualified handicapped individual in the United States will, solely by reason of the handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Applies to all CAs and DGs.

28. Reporting Subawards and Executive Compensation Under 2 CFR Part 170 - Requirements for Federal Funding Accountability and Transparency Act Implementation; Appendix A to Part 170

(a) Reporting of first-tier subawards.
(1) Applicability. Unless the recipient is exempt as provided in paragraph (d) of this provision, the recipient must report each action that obligates $25,000 or more in Federal funds that does not include Recovery funds (as defined in section 1512(a)(2) of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) for a subaward to an entity (see definitions in paragraph (e) of this Federal award term).
(2) Where and when to report:
(i) The NFE must report each obligating action described in paragraph (a)(1) of this provision to http://www.fsrs.gov.

(ii) For subaward information, the NFE must report no later than the end of the month following the month in which the obligation was made. (For example, if the obligation was made on November 7, 2015, the obligation must be reported by no later than December 31, 2015.)
(3) What to report. The NFE must report the information about each obligating action that the submission instructions posted at http://www.fsrs.gov specify.

(b) Reporting Total Compensation of NFE Executives.
(1) Applicability and what to report. The NFE must report total compensation for each of the NFE’s five most highly compensated executives for the preceding completed fiscal year, if—
(i) the total Federal funding authorized to date under this Federal award is $25,000 or more;
(ii) in the preceding fiscal year, the NFE received—
(A) 80 percent or more of NFE’s annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and
(B) $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards).
(iii) The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at http://www.sec.gov/answers/execomp.htm.)

(2) Where and when to report. The NFE must report executive total compensation described in paragraph (b)(1) of this provision:
(i) As part of the NFE’s registration profile at http://www.sam.gov.

(ii) By the end of the month following the month in which this Federal award is made, and annually thereafter.
(c) Reporting of Total Compensation of Subrecipient Executives.
(1) Applicability and what to report. Unless the NFE is exempt as provided in paragraph (d) of this provision, for each first-tier subrecipient under this Federal award, the recipient shall report the names and total compensation of each of the subrecipient's five most highly compensated executives for the subrecipient's preceding completed fiscal year, if—
(i) in the subrecipient's preceding fiscal year, the subrecipient received—
(A) 80 percent or more of its annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and
(B) $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts), and Federal financial assistance subject to the Transparency Act (and subawards).
(ii) The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at http://www.sec.gov/answers/execomp.htm.)

(2) Where and when to report. The recipient must report subrecipient executive total compensation described in paragraph (c)(1) of this provision:
(i) To the recipient.
(ii) By the end of the month following the month during which the recipient makes the subaward. For example, if a subaward is obligated on any date during the month of October of a given year (i.e., between October 1 and 31), the recipient must report any required compensation information of the subrecipient by November 30 of that year.
(d) Exemptions
(1) If, in the previous tax year, the NFE had gross income, from all sources, under $300,000, the NFE is exempt from the requirements to report:
(i) Subawards; and
(ii) The total compensation of the five most highly compensated executives of any subrecipient.
(e) Definitions. For purposes of this provision:
(1) Entity means all of the following, as defined in 2 CFR part 25:
(i) A Governmental organization, which is a State, local government, or Indian tribe;
(ii) A foreign public entity;
(iii) A domestic or foreign nonprofit organization;
(iv) A domestic or foreign for-profit organization;
(v) A Federal agency, but only as a subrecipient under a Federal award or subaward to a NFE.
(2) Executive means officers, managing partners, or any other employees in management positions.
(3) Subaward:
i) This term means an award provided by a pass-through entity to a subrecipient for the subrecipient to carry out part of a Federal award received by the pass-through entity. It does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. A subaward may be provided through any form of legal agreement, including an agreement that the pass-through entity considers a contract.
(ii) The term does not include procurement of property and services needed to carry out the project or program.
(4) Subrecipient means an entity that:
(i) Receives a subaward from the recipient under this Federal award; and
(ii) Is accountable to the recipient for the use of the Federal funds provided by the subaward.
(5) Total compensation means the cash and noncash dollar value earned by the executive during the recipient's or subrecipient's preceding fiscal year and includes the following (for more information see 17 CFR 229.402(c)(2)):
(i) Salary and bonus.
(ii) Awards of stock, stock options, and stock appreciation rights. The NFE must use the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 123R), Shared Based Payments.
(iii) Earnings for services under non-equity incentive plans. This does not include group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of executives, and are available generally to all salaried employees.
(iv) Change in pension value. This is the change in present value of defined benefit and actuarial pension plans.
(v) Above-market earnings on deferred compensation which is not tax- qualified.
(vi) Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the executive exceeds $10,000.

Applies to all CAs and DGs where subawards are contemplated that exceed $25,000. See 2 CFR 170 for specifics on applicability.

NOTE: All awards under $25,000 do not require this provision.

1. Safeguarding U.S. Funds

The NFE shall establish safeguards to ensure that U.S. Federal funds are properly spent. The NFE shall ensure that funds are not used for any partisan or political activity purposes (whether domestic or foreign), including, but not limited to:
(a) Supporting election, referendum, initiative, or similar procedure;
(b) Influencing the outcomes of elections;
(c) Introducing legislation;
(d) Influencing government officials to engage in similar lobbying activity;
(e) Preparing, distributing, or using publicity or propaganda, or by urging members of the general public to contribute to or participate in any mass demonstration, march, rally, fund raising drive, lobbying campaign or letter writing or telephone campaign;
(f) Influencing or attempting to influence a member of Congress or a federal agency in connection with the awarding of any federal contract, grant, loan or cooperative agreement; and
(g) Attending legislative sessions or committee hearings, gathering information regarding legislation, and analyzing the effect of legislation, when such activities are carried on in support of or in knowing preparation for an effort to engage in unallowable lobbying.
If FAS funds under this Federal award have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, and officer or employee of Congress, or an employee of a Member of Congress in connections with this Federal award, the NFE’s signatory official shall complete Standard Form LLL, Disclosure of Lobbying Activities, in accordance with its instructions and submit to the Grants Management Officer. This provision shall be included in the award documents for all subawards at all tiers including subcontracts, sub-grants, and contracts under this Agreements. Any person who fails to file the SF-LLL shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

Applies to all CAs and DGs.

1. Text Messaging While Driving

In accordance with Executive Order (EO) 13513, “Federal Leadership on Reducing Text Messaging While Driving,” any and all text messaging by Federal employees is banned: a) while driving a Government owned vehicle (GOV) or driving a privately owned vehicle (POV) while on official Government business; or b) using any electronic equipment supplied by the Government when driving any vehicle at any time. All NFEs, their employees, volunteers, and contractors are encouraged to adopt and enforce policies that ban text messaging when driving company owned, leased or rented vehicles, POVs or GOVs when driving while on official Government business or when performing any work for or on behalf of the Government.

Applies to all CAs and DGs.

31. Trafficking In Persons

(a) Provisions applicable to a NFE that is a private entity.
(1) The NFE, its employees, subrecipients under this Federal award, and subrecipients’ employees may not—
(i) Engage in severe forms of trafficking in persons during the period of time that the Federal award is in effect;
(ii) Procure a commercial sex act during the period of time that the Federal award is in effect; or
(iii) Use forced labor in the performance of the Federal award or subawards under the Federal award.
(2) FAS may unilaterally terminate this Federal award, without penalty, if the recipient or a subrecipient that is a private entity —
(i) Is determined to have violated a prohibition in paragraph (a)(1) of this Federal award term; or
(ii) Has an employee who is determined by the agency official authorized to terminate the Federal award to have violated a prohibition in paragraph (a)(1) of this Federal award term through conduct that is either—
(A) Associated with performance under this Federal award; or
(B) Imputed to the recipient or the subrecipient using the standards and due process for imputing the conduct of an individual to an organization that are provided in 2 CFR part 180, ‘‘OMB Guidelines to Agencies on Government wide Debarment and Suspension (Nonprocurement),’’ as implemented by our agency at 7 CFR 3017.
(b) Provision applicable to a NFE other than a private entity. FAS may unilaterally terminate this Federal award, without penalty, if a subrecipient that is a private entity—
(1) Is determined to have violated an applicable prohibition in paragraph (a)(1) of this Federal award term; or
(2) Has an employee who is determined by the agency official authorized to terminate the Federal award to have violated an applicable prohibition in paragraph (a)(1) of this Federal award term through conduct that is either—
(i) Associated with performance under this Federal award; or
(ii) Imputed to the subrecipient using the standards and due process for imputing the conduct of an individual to an organization that are provided in 2 CFR part 180, ‘‘OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement),’’ as implemented by our agency at 7 CFR 3017.
(c) Provisions applicable to any NFE.
(1) The NFE must inform FAS immediately of any information the NFE receives from any source alleging a violation of a prohibition in paragraph (a)(1) of this Federal award term.
(2) FAS right to terminate unilaterally that is described in paragraph (a)(2) or (b) of this section:
(i) Implements section 106(g) of the Trafficking Victims Protection Act of 2000 (TVPA), as amended (22 U.S.C. 7104(g)); and
(ii) Is in addition to all other remedies for noncompliance that are available to FAS under this Federal award.
(3) The NFE must include the requirements of paragraph (a)(1) of this Federal award term in any subaward made to a private entity.
(d) Definitions. For purposes of this Federal award term:
(1) ‘‘Employee’’ means either:
(i) An individual employed by the recipient or a subrecipient who is engaged in the performance of the project or program under this Federal award; or
(ii) Another person engaged in the performance of the project or program under this Federal award and not compensated by the NFE including, but not limited to, a volunteer or individual whose services are contributed by a third party as an in-kind contribution toward cost sharing or matching requirements.
(2) ‘‘Forced labor’’ means labor obtained by any of the following methods: the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.
(3) ‘‘Private entity’’:
(i) Means any entity other than a State, local government, Indian tribe, or foreign public entity, as those terms are defined in 2 CFR 175.25.
(ii) Includes:
(A) A nonprofit organization, including any nonprofit institution of higher education, hospital, or tribal organization other than one included in the definition of Indian tribe at 2 CFR 175.25(b).
(B) A for-profit organization.
(4) ‘‘Severe forms of trafficking in persons,’’ ‘‘commercial sex act,’’ and ‘‘coercion’’ have the meanings given at section 103 of the TVPA, as amended (22 U.S.C. 7102).

Applies to all CAs and DGs.

32. U.S. Government Employment Status

In no event shall the Recipient or its subrecipients be considered as employees of the United States government, unless authorized by Federal Statute.

Applies to all CAs and DGs.

33. International Travel and the Fly America Act

The Fly America Act (49 U.S.C. 40118) requires that all air travel and shipments under this Federal award must be made on U.S. flag air carriers to the extent service by such carriers is available or reasonably available, as applicable. The Administrator of the General Services Administration (GSA) is authorized to issue regulations to implement the Act. Those regulations may be found at 41 CFR Part 301, and are hereby incorporated by reference into this Federal award.

Applies to CAs and DGs that take place outside the U.S.

34. International Air Travel and Transportation

(a) In accordance with OMB Cost Principles, direct charges for foreign travel costs are allowable only when each foreign trip has received prior budget approval by the PM. Such approval will be deemed to have been met when:
(1) The trip is identified. Identification is accomplished by providing the following information: the number of trips, the number of individuals per trip, and the destination country(s);
(2) The information noted at (1) above is incorporated in: the NFE’s project narrative, or mutually agreed amendments to this Federal award; and
(3) The costs related to the travel are incorporated in the NFE’s revised budget, or in a subsequently approved budget to this Federal award.
(b) Post-award approval may be allowed, but only if the Grants Management Officer approves the travel, in writing.

Applies to CAs and DGs that take place outside the U.S.

35. Investment Promotion

(a) No funds or other support provide hereunder may be used in a project or activity reasonably likely to involve the relocation or expansion outside of the United States of an enterprise located in the United States if non-U.S. production in such relocation or expansion replaces some or all of the production of, and reduces the number of employees at, said enterprise in the United States.
(b) No funds or other support provided hereunder may be used in a project or activity the purpose of which is the establishment or development in a foreign country of any export processing zone or designated area where the labor, environmental, tax, tariff, and safety laws of the country would not apply, without the prior written approval of FAS.

Applies to CAs and DGs that take place outside the U.S.

36. Nondiscrimination in International Programs

No U.S. citizen or legal resident shall be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity funded by this Federal award on the basis of race, color, national origin, age, handicap, or sex.

Applies to CAs and DGs that take place outside the U.S.

37. Regulations Governing Employees

(a) The NFE's employees shall maintain private status and may not rely on local U.S. Government offices or facilities for support while under this Federal award.
(b) The NFE's employees, while in a foreign country, are expected to show respect for its conventions, customs, and institutions, to abide by its applicable laws and regulations, and not to interfere in its internal political affairs. All NFEs must ensure that project activities outside the United States are coordinated as necessary with appropriate government authorities and those appropriate licenses, permits, or approvals are obtained.
(c) In the event the conduct of any of the NFE's employees is not in accordance with the preceding paragraphs, the NFE's chief of party shall consult with the employee involved and the FAS Program Manager shall recommend to the NFE a course of action with regard to such employee.
(d) The parties recognize the rights of the U.S. Ambassador to direct the removal from a country of any U.S. citizen or the discharge from this Federal award of any third country national when, in the discretion of the Ambassador, the interests of the United States so require.
(e) If it is determined, either under (c) or (d) above, that the services of such employee should be terminated, the NFE shall use its best efforts to cause the return of such employee to the United States, or point of origin, as appropriate.

Applies to all CAs and DGs.

38. Agriculture Bioterrorism Protection Act

The NFE assures compliance with the Agriculture Bioterrorism Protection Act of 2002, as implemented at 7 CFR part 331 and 9 CFR part 121, by agreeing that it will not possess, use, or transfer any select agent or toxin without a certificate of registration issued by the Agency.

Applies to all CAs and DGs.

39. Animal Welfare Act

The NFE assures compliance with the Animal Welfare Act, as amended, 7 U.S.C. 2131, et seq., and the regulations promulgated there under by the Secretary of Agriculture (9 CFR, Subchapter A) pertaining to the care, handling, and treatment of warm-blooded animals held or used for research, teaching, or other activities supported by Federal funds. The NFE may request registration of facilities and a current listing of licensed dealers from the Regional Office of the Animal and Plant Health Inspection Service (APHIS), USDA, for the Region in which their facility is located. The location of the appropriate APHIS Regional Office, as well as information concerning this requirement, may be obtained by contacting the Senior Staff Officer, Animal Care Staff, USDA/APHIS, 4700 River Road, Riverdale, Maryland 20737.

Applies to all CAs and DGs when research, teaching, or other activities are anticipated.

40. Invention Disclosure and Utilization Reporting

The NFE shall report Invention Disclosures and Utilization information electronically via i-Edison Web Interface at: www.iedison.gov.

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

41. Metric System of Measurement

Wherever measurements are required or authorized, they must be made, computed, and recorded in metric system units of measurement, unless otherwise authorized by the FAS Program Manager in writing when it has found that such usage is impractical or is likely to cause United States firms to experience significant inefficiencies or the loss of markets. Where the metric system is not the predominant standard for a particular application, measurements may be expressed in both the metric and the traditional equivalent units, provided the metric units are listed first.

Applies to all CAs involving research and/or publications.

42. Procurement of Recovered Materials

All NFEs must comply with Section 6002 of the solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition.

Applies to all CAs and DGs.

43. Protection Of Human Subjects

The NFE assures compliance with the following provisions regarding the rights and welfare of human subjects:
(a) The NFE is responsible for safeguarding the rights and welfare of any human subjects involved in research, development, and related activities supported by this Federal award. The NFE may conduct research involving human subjects only as prescribed in the statement of work and as approved by the NFE’s Cognizant Institutional Review Board.
Prior to conducting such research, the NFE shall obtain and document a legally sufficient informed consent from each human subject involved. No such informed consent shall include any exculpatory language through which the subject is made to waive, or to appear to waive, any of his or her legal rights, including any release of the NFE or its agents from liability for negligence.
(b) The NFE agrees to comply with U.S. Department of Health and Human Services’ regulations regarding human subjects, appearing in 45 CFR part 46 (as amended).
(c) It will comply with FAS policy, which is to assure that the risks do not outweigh either potential benefits to the subjects or the expected value of the knowledge sought.
(d) Selection of subject or groups of subjects shall be made without regard to sex, race, color, religion, or national origin unless these characteristics are factors to be studied.

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

1. Recombinant DNA Research

The NFE assures that it will assume primary responsibility for implementing proper conduct on recombinant DNA research and it will comply with the National Institute of Health Guidelines for Recombinant DNA Research, as revised.

If the NFE wishes to send or receive registered recombinant DNA material which is subject to quarantine laws, permits to transfer this material into the U.S. or across state lines may be obtained by contacting USDA/APHIS/PPQ, Scientific Services— Biotechnology Permits, 4700 River Road, Unit 133, Riverdale, Maryland 20737. In the event that the NFE has not established the necessary biosafety committee, a request for guidance or assistance may be made to the USDA Recombinant DNA Research Officer.

Applies to all CAs and DGs when DNA research is anticipated.

45. USA Patriot Act of 2001

All NFEs must comply with requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), which amends 18 U.S. C. §§ 175-175c.

Applies to all CAs and DGs.

1. Whistleblower Protection Act

All NFEs must comply with the statutory requirements for whistleblower protections (if applicable) at 41 U.S.C. 4712, and 41 U.S.C. §§ 4304 and 4310.

Applies to all CAs and DGs.