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end of the regular 3-year period, whichever is later.

(3) To avoid duplicate recordkeeping, awarding agencies may make special arrangements with grantees and subgrantees to retain any records which are continuously needed for joint use. The awarding agency will request transfer of records to its custody when it determines that the records possess long-term retention value. When the records are transferred to or maintained by the Federal agency, the 3-year retention requirement is not applicable to the grantee or subgrantee.

(c) Starting date of retention period(1) General. When grant support is continued or renewed at annual or other intervals, the retention period for the records of each funding period starts on the day the grantee or subgrantee submits to the awarding agency its single or last expenditure report for that period. However, if grant support is continued or renewed quarterly, the retention period for each year's records starts on the day the grantee submits its expenditure report for the last quarter of the Federal fiscal year. In all other cases, the retention period starts on the day the grantee submits its final expenditure report. If an expenditure report has been waived, the retention period starts on the day the report would have been due.

(2) Real property and equipment records. The retention period for real property and equipment records starts from the date of the disposition or replacement or transfer at the direction of the awarding agency.

(3) Records for income transactions after grant or subgrant support. In some cases grantees must report income after the period of grant support. Where there is such a requirement, the retention period for the records pertaining to the earning of the income starts from the end of the grantee's fiscal year in which the income is earned.

(4) Indirect cost rate proposals, cost allocations plans, etc. This paragraph ap plies 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).

(i) If submitted for negotiation. If the proposal, plan, or other computation is required to be submitted to the Federal Government (or to the grantee) to form the basis for negotiation of the rate, then the 3-year retention period for its supporting records starts from the date of such submission.

(ii) If not submitted for negotiation. If the proposal, plan, or other computation is not required to be submitted to the Federal Government (or to the grantee) for negotiation purposes, then the 3-year retention period for the proposal plan, or computation and its sup porting records starts from end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computation.

(d) Substitution of microfilm. Copies made by microfilming, photocopying, or similar methods may be substituted for the original records.

(e) Access to records-(1) Records of grantees and subgrantees. The awarding agency and the Comptroller General of the United States, or any of their authorized representatives, shall have the right of access to any pertinent books, documents, papers, or other records of grantees and subgrantees which are pertinent to the grant, in order to make audits, examinations, excerpts, and transcripts.

(2) Expiration of right of access. The rights of access in this section must not be limited to the required retention period but shall last as long as the records are retained.

(f) Restrictions on public access. The Federal Freedom of Information Act (5 U.S.C. 552) does not apply to records Unless required by Federal, State, or local law, grantees and subgrantees are not required to permit public access to their records.

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8602.43 Enforcement.

(a) Remedies for noncompliance. If a grantee or subgrantee materially fails to comply with any term of an award, whether stated in a Federal statute or regulation, an assurance, in a State plan or application, a notice of award, or elsewhere, the awarding agency may take one or more of the following ac

tions, as appropriate in the cir- 8602.44 Termination for convenience. cumstances:

Except as provided in 8 602.43 awards (1) Temporarily withhold cash pay

may be terminated in whole or in part ments pending correction of the defi

only as follows: ciency by the grantee or subgrantee or

(a) By the awarding agency with the more severe enforcement action by the

consent of the grantee or subgrantee in awarding agency,

which case the two parties shall agree (2) Disallow (that is, deny both use of upon the termination conditions, infunds and matching credit for) all or

cluding the effective date and in the part of the cost of the activity or ac- case of partial termination, the portion tion not in compliance,

to be terminated, or (3) Wholly or partly suspend or ter (b) By the grantee or subgrantee minate the current award for the upon written notification to the awardgrantee's or subgrantee's program, ing agency, setting forth the reasons

(4) Withhold further awards for the for such termination, the effective program, or

date, and in the case of partial termi(5) Take other remedies that may be nation, the portion to be terminated. legally available.

However, if, in the case of a partial ter(b) Hearings, appeals. In taking an en

mination, the awarding agency deterforcement action, the awarding agency

mines that the remaining portion of will provide the grantee or subgrantee the award will not accomplish the puran opportunity for such hearing, ap poses for which the award was made, peal, or other administrative proceed

the awarding agency may terminate ing to which the grantee or subgrantee the award in its entirety under either is entitled under any statute or regula $ 602.43 or paragraph (a) of this section. tion applicable to the action involved.

(c) Effects of suspension and termi Subpart D-After-The-Grant nation. Costs of grantee or subgrantee

Requirements resulting from obligations incurred by the grantee or subgrantee during a sus- 8602.50 Closeout. pension or after termination of an (a) General. The Federal agency will award are not allowable unless the close out the award when it determi awarding agency expressly authorizes that all applicable administrative acthem in the notice of suspension or ter- tions and all required work of the mination or subsequently. Other grant- grant has been completed. ee or subgrantee costs during suspen (b) Reports. Within 90 days after the sion or after termination which are

expiration or termination of the grant, necessary and not reasonably avoidable the grantee must submit all financial, are allowable if:

performance, and other reports re(1) The costs result from obligations quired as a condition of the grant. which were properly incurred by the Upon request by the grantee, Federal grantee or subgrantee before the effec agencies may extend this timeframe. tive date of suspension or termination, These may include but are not limited are not in anticipation of it, and, in the to: case of a termination, are (1) Final performance of progress renoncancellable, and,

port. (2) The costs would be allowable if

(2) Financial Status Report (SF 269) or the award were not suspended or ex- Outlay Report and Request for Reimpired normally at the end of the fund- bursement for Construction Programs ing period in which the termination (SF-271) (as applicable). takes effect.

(3) Final request for payment (SF-270) (d) Relationship to debarment and sus- (if applicable). pension. The enforcement remedies (4) Invention disclosure (if applicable). identified in this section, including (5) Federally-owned property report: suspension and termination, do not In accordance with 8602.32(1), a grantee preclude grantee or subgrantee from must submit an inventory of all federbeing subject to “Debarment and Sus- ally owned property (as distinct from pension" under E.O. 12549 (see $ 602.35). property acquired with grant funds) for

ines

which it is accountable and request dis- Subpart E-Entitlement (Reserved) position instructions from the Federal agency of property no longer needed.

PART 604-NEW RESTRICTIONS ON (c) Cost adjustment. The Federal agency will, within 90 days after receipt of

LOBBYING reports in paragraph (b) of this section, make upward or downward adjust

Subpart A-General ments to the allowable costs.

Sec. (d) Cash adjustments. (1) The Federal 604.100 Conditions on use of funds. agency will make prompt payment to 604.105 Definitions. the grantee for allowable reimbursable

604.110 Certification and disclosure. costs.

Subpart B-Activities by Own Employees (2) The grantee must immediately refund to the Federal agency any balance 604.200 Agency and legislative liaison. of unobligated (unencumbered) cash 604.205 Professional and technical services. advanced that is not authorized to be

Ithorized to be 604.210 Reporting. retained for use on other grants.

Subpart C-Activities by Other Than Own 8 602.51 Later disallowances and ad

Employees justments.

604.300 Professional and technical services. The closeout of a grant does not affect:

Subpart D-Penalties and Entorcement (a) The Federal agency's right to dis

604.400 Penalties. allow costs and recover funds on the

604.405 Penalty procedures. basis of a later audit or other review;

604.410 Enforcement. (b) The grantee's obligation to return any funds due as a result of later re

Subpart E-Exemptions funds, corrections, or other transactions;

604.500 Secretary of Defense. (c) Records retention as required in

Subpart F-Agency Reports $ 602.42;

(d) Property management require 604.600 Semi-annual compilation. ments in $$ 602.31 and 602.32; and

604.605 Inspector General report. (e) Audit requirements in 8 602.26. APPENDIX A TO PART 604 CERTIFICATION RE

GARDING LOBBYING 8602.52 Collection of amounts due. APPENDIX B TO PART 604-DISCLOSURE FORM (a) Any funds paid to a grantee in ex

TO REPORT LOBBYING cess of the amount to which the grant AUTHORITY: Sec. 319, Pub. L. 101-121 (31 ee is finally determined to be entitled U.S.C. 1352); 42 U.S.C. 1870. under the terms of the award con SOURCE: 55 FR 6737, 6754, Feb. 26, 1990, unstitute a debt to the Federal Govern less otherwise noted. ment. If not paid within a reasonable CROSS REFERENCE: See also Office of Manperiod after demand, the Federal agen

agement and Budget notice published at 54 cy may reduce the debt by:

FR 52306, December 20, 1989. (1) Making an adminstrative offset against other requests for reimburse

Subpart A-General ments, (2) Withholding advance payments

ents

8604.100

8604.100 Conditions on use of funds. otherwise due to the grantee, or

(a) No appropriated funds may be ex(3) Other action permitted by law. pended by the recipient of a Federal

(b) Except where otherwise provided contract, grant, loan, or cooperative by statutes or regulations, the Federal ageement to pay any person for influagency will charge interest on an over encing or attempting to influence an due debt in accordance with the Fed- officer or employee of any agency, a eral Claims Collection Standards (4 Member of Congress, an officer or emCFR Ch. II). The date from which inter ployee of Congress, or an employee of a est is computed is not extended by liti- Member of Congress in connection with gation or the filing of any form of ap any of the following covered Federal peal.

actions: the awarding of any Federal

contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

(b) Each person who requests or receives from an agency a Federal contract, grant, loan, or cooperative agreement shall file with that agency a certification, set forth in appendix A, that the person has not made, and will not make, any payment prohibited by paragraph (a) of this section.

(c) Each person who requests or receives from an agency a Federal contract, grant, loan, or a cooperative agreement shall file with that agency a disclosure form, set forth in appendix B, if such person has made or has agreed to make any payment using nonappropriated funds (to include profits from any covered Federal action), which would be prohibited under paragraph (a) of this section if paid for with appropriated funds.

(d) Each person who requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file with that agency a statement, set forth in appendix A, whether that person has made or has agreed to make any pay. ment 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 that loan insurance or guarantee.

(e) Each person who requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file with that agency a disclosure form, set forth in appendix B, if that person has made or has agreed to make any payment 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 that loan insurance or guarantee. 8604.106 Definitions. For purposes of this part:

(a) Agency, as defined in 5 U.S.C. 552(1), includes Federal executive de

partments and agencies as well as independent regulatory commissions and Government corporations, as defined in 31 U.S.C. 9101(1).

(b) Covered Federal action means any of the following Federal actions:

(1) The awarding of any Federal contract;

(2) The making of any Federal grant; (3) The making of any Federal loan;

(4) The entering into of any cooperative agreement; and,

(5) The extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. Covered Federal action does not include receiving from an agency a commitment providing for the United States to insure or guarantee a loan. Loan guarantees and loan insurance are addressed independently within this part.

(c) Federal contract means an acquisi. tion contract awarded by an agency, including those subject to the Federal Acquisition Regulation (FAR), and any other acquisition contract for real or personal property or services not subject to the FAR.

(d) Federal cooperative agreement means a cooperative agreement entered into by an agency.

(e) Federal grant means an award of financial assistance in the form of money, or property in lieu of money, by the Federal Government or a direct appropriation made by law to any person. The term does not include technical assistance which provides services instead of money, or other assistance in the form of revenue sharing, loans, loan guarantees, loan insurance, interest subsidies, insurance, or direct United States cash assistance to an individual.

(1) Federal loan means a loan made by an agency. The term does not include loan guarantee or loan insurance.

(8) Indian tribe and tribal organization have the meaning provided in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions of Indian tribes in that Act.

(h) Influencing or attempting to influence means making, with the intent to influence, any communication to or ap

pearance before an officer or employee that is consistent with the amount noror any agency, a Member of Congress, mally paid for such services in the prian officer or employee of Congress, or vate sector. an employee of a Member of Congress (0) Recipient includes all contractors, in connection with any covered Federal subcontractors at any tier, and action.

subgrantees at any tier of the recipient (i) Loan guarantee and loan insurance of funds received in connection with a means an agency's guarantee or insur- Federal contract, grant, loan, or coop ance of a loan made by a person.

erative agreement. The term excludes (j) Local government means a unit of an Indian tribe, tribal organization, or government in a State and, if char- any other Indian organization with retered, established, or otherwise recog- spect to expenditures specifically pernized by a State for the performance of mitted by other Federal law. a governmental duty, including a local (p) Regularly employed means, with public authority, a special district, an respect to an officer or employee of a intrastate district, a council of govern person requesting or receiving a Fedments, a sponsor group representative eral contract, grant, loan, or cooperaorganization, and any other instrumen tive agreement or a commitment protality of a local government.

viding for the United States to insure (k) Officer of employee of an agency in or guarantee a loan, an officer or emcludes the following individuals who ployee who is employed by such person are employed by an agency:

for at least 130 working days within (1) An individual who is appointed to one year immediately preceding the a position in the Government under date of the submission that initiates title 5, U.S. Code, including a position agency consideration of such person for under a temporary appointment;

receipt of such contract, grant, loan, (2) A member of the uniformed serv cooperative agreement, loan insurance ices as defined in section 101(3), title 37, commitment, or loan guarantee comU.S. Code;

mitment. An officer or employee who is (3) A special Government employee employed by such person for less than as defined in section 202, title 18, U.S. 130 working days within one year imCode; and,

mediately preceding the date of the (4) An individual who is a member of submission that initiates agency cona Federal advisory Committee, as de- sideration of such person shall be confined by the Federal Advisory Commit- sidered to be regularly employed as tee Act, title 5, U.S. Code appendix 2. soon as he or she is employed by such

(1) Person means an individual, cor- person for 130 working days. poration, company, association, au (q) State means a State of the United thority, firm, partnership, society, States, the District of Columbia, the State, and local government, regard Commonwealth of Puerto Rico, a terriless of whether such entity is operated tory or possession of the United States, for profit or not for profit. This term an agency or instrumentality of a excludes an Indian tribe, tribal organi State, and a multi-State, regional, or zation, or any other Indian organiza interstate entity having governmental tion with respect to expenditures spe- duties and powers. cifically permitted by other Federal law.

8 604.110 Certification and disclosure. (m) Reasonable compensation means, (a) Each person shall file a certifiwith respect to a regularly employed cation, and a disclosure form, if reofficer or employee of any person, com- quired, with each submission that inipensation that is consistent with the tiates agency consideration of such normal compensation for such officer person for: or employee for work that is not fur- (1) Award of a Federal contract, nished to, not funded by, or not fur- grant, or cooperative agreement exnished in cooperation with the Federal ceeding $100,000; or Government.

(2) An award of a Federal loan or a (n) Reasonable payment means, with commitment providing for the United respect to perfessional and other tech- States to insure or guarantee a loan nical services, a payment in an amount exceeding $150,000.

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