[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2007 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
32
Parts 1 to 190
Revised as of July 1, 2007
National Defense
________________________
Containing a codification of documents of general
applicability and future effect
As of July 1, 2007
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 32:
Subtitle A--Department of Defense
Chapter I--Office of the Secretary of Defense 5
Finding Aids:
Table of CFR Titles and Chapters........................ 845
Alphabetical List of Agencies Appearing in the CFR...... 863
List of CFR Sections Affected........................... 873
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 32 CFR 2.1 refers to
title 32, part 2, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
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Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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[[Page vii]]
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Office of the Federal Register.
July 1, 2007.
[[Page ix]]
THIS TITLE
Title 32--National Defense is composed of six volumes. The parts in
these volumes are arranged in the following order: parts 1-190, parts
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to
End. The contents of these volumes represent all current regulations
codified under this title of the CFR as of July 1, 2007.
The current regulations issued by the Department of Defense appear
in the volumes containing parts 1-189 and parts 190-399; those issued by
the Department of the Army appear in the volumes containing parts 400-
629 and parts 630-699; those issued by the Department of the Navy appear
in the volume containing parts 700-799, and those issued by the
Department of the Air Force, Defense Logistics Agency, Selective Service
System, National Counterintelligence Center, Central Intelligence
Agency, Information Security Oversight Office, National Security
Council, Office of Science and Technology Policy, Office for Micronesian
Status Negotiations, and Office of the Vice President of the United
States appear in the volume containing parts 800 to end.
For this volume, Moja N. Mwaniki was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Ann Worley.
[[Page 1]]
TITLE 32--NATIONAL DEFENSE
(This book contains parts 1 to 190)
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Part
SUBTITLE A--Department of Defense
chapter i--Office of the Secretary of Defense............... 2
[[Page 3]]
Subtitle A--Department of Defense
[[Page 5]]
CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE
(Parts 1 to 190)
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SUBCHAPTER A--ACQUISITION
Part Page
1 [Reserved]
2 Pilot program policy........................ 11
3 Transactions other than contracts, grants,
or cooperative agreements for prototype
projects................................ 13
4-8 [Reserved]
SUBCHAPTER B--MILITARY COMMISSIONS
9 Procedures for Trials by Military
Commissions of Certain Non-United States
Citizens in the War Against Terrorism... 22
10 Military Commission Instructions............ 31
11 Crimes and Elements of Trials by Military
Commission.............................. 32
12 Responsibilities of the Chief Prosecutor,
Prosecutors, and Assistant Prosecutors.. 43
13 Responsibilities of the Chief Defense
Counsel, Detailed Defense Counsel, and
Civilian Defense Counsel................ 45
14 Qualification of Civilian Defense Counsel... 48
15 Reporting Relationships for Military
Commission Personnel.................... 53
16 Sentencing.................................. 54
17 Administrative Procedures................... 55
18 Appointing Authority for Military
Commissions............................. 57
19-20 [Reserved]
SUBCHAPTER C--DOD GRANT AND AGREEMENT REGULATIONS
21 DoD grants and agreements--General matters.. 61
22 DoD grants and agreements--Award and
administration.......................... 73
[[Page 6]]
25 Governmentwide debarment and suspension
(nonprocurement)........................ 118
26 Governmentwide requirements for drug-free
workplace (financial assistance)........ 141
28 New restrictions on lobbying................ 147
32 Administrative requirements for grants and
agreements with institutions of higher
education, hospitals, and other non-
profit organizations.................... 159
33 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 189
34 Administrative requirements for grants and
agreements with for-profit organizations 217
37 Technology investment agreements............ 237
SUBCHAPTER D--PERSONNEL, MILITARY AND CIVILIAN
44 Screening the Ready Reserve................. 293
45 Certificate of release or discharge from
active duty (DD Form 214/5 Series)...... 297
47 Active duty service for civilian or
contractual groups...................... 312
48 Retired serviceman's family protection plan. 317
50 Personal commercial solicitation on DoD
installations........................... 327
53 Wearing of the uniform...................... 337
54 Allotments for child and spousal support.... 338
56 Nondiscrimination on the basis of handicap
in programs and activities assisted or
conducted by the Department of Defense.. 342
57 Provision of early intervention and special
education services to eligible DoD
dependents.............................. 362
64 Management and mobilization of regular and
reserve retired military members........ 394
67 Educational requirements for appointment of
reserve component officers to a grade
above first lieutenant or lieutenant
(junior grade).......................... 396
68 Provision of free public education for
eligible children pursuant to section 6,
Public Law 81-874....................... 398
69 School boards for Department of Defense
domestic dependent elementary and
secondary schools....................... 404
70 Discharge review board (DRB) procedures and
standards............................... 408
74 Appointment of doctors of osteopathy as
medical officers........................ 441
77 Program to encourage public and community
service................................. 442
78 Voluntary State tax withholding from retired
pay..................................... 452
[[Page 7]]
80 Provision of early intervention services to
eligible infants and toddlers with
disabilities and their families, and
special education children with
disabilities within the section 6 school
arrangements............................ 455
81 Paternity claims and adoption proceedings
involving members and former members of
the Armed Forces........................ 479
85 Health promotion............................ 480
86 Criminal history background checks on
individuals in child care services...... 484
88 Transition assistance for military personnel 496
93 Acceptance of service of process; release of
official information in litigation; and
testimony by NSA personnel as witnesses. 499
94 Naturalization of aliens serving in the
Armed Forces of the United States and of
alien spouses and/or alien adopted
children of military and civilian
personnel ordered overseas.............. 503
96 Acquisition and use of criminal history
record information by the military
services................................ 507
97 Release of official information in
litigation and testimony by DoD
personnel as witnesses.................. 508
99 Procedures for States and localities to
request indemnification................. 512
100 Unsatisfactory performance of ready reserve
obligation.............................. 514
101 Participation in Reserve training programs.. 519
104 Civilian employment and reemployment rights
of applicants for, and Service members
and former Service members of the
Uniformed Services...................... 521
107 Personal services authority for direct
health care providers................... 531
110 Standardized rates of subsistence allowance
and commutation instead of uniforms for
members of the Senior Reserve Officers'
Training Corps.......................... 533
112 Indebtedness of military personnel.......... 539
113 Indebtedness procedures of military
personnel............................... 542
142 Copyrighted sound and video recordings...... 558
143 DoD policy on organizations that seek to
represent or organize members of the
Armed Forces in negotiation or
collective bargaining................... 559
144 Service by members of the Armed Forces on
State and local juries.................. 562
145 Cooperation with the Office of Special
Counsel of the Merit Systems Protection
Board................................... 564
[[Page 8]]
147 Adjudicative guidelines for determining
eligibility for access to classified
information............................. 569
148 National policy and implementation of
reciprocity of facilities............... 582
149 Policy on technical surveillance
countermeasures......................... 585
SUBCHAPTER E--REGULATIONS PERTAINING TO MILITARY JUSTICE
150 Courts of criminal appeals rules of practice
and procedure........................... 587
151 Status of forces policies and information... 595
152 Review of the manual for courts-martial..... 601
153 Criminal jurisdiction over civilians
employed by or accompanying the armed
forces outside the United States,
certain service members, and former
service members......................... 605
SUBCHAPTER F--SECURITY
154 Department of Defense personnel security
program regulation...................... 626
155 Defense industrial personnel security
clearance program....................... 689
156 Department of Defense personnel security
program (DoDPSP)........................ 696
SUBCHAPTER G--DEFENSE CONTRACTING
160 Defense acquisition regulatory system....... 698
162 Productivity Enhancing Capital Investment
(PECI).................................. 700
165 Recoupment of nonrecurring costs on sales of
U.S. items.............................. 704
168a National defense science and engineering
graduate fellowships.................... 708
169 Commercial activities program............... 709
169a Commercial activities program procedures.... 713
171 Implementation of Wildfire Suppression
Aircraft Transfer Act of 1996........... 755
172 Disposition of proceeds from DoD sales of
surplus personal property............... 758
173 Competitive information certificate and
profit reduction clause................. 764
SUBCHAPTER H--CLOSURES AND REALIGNMENT
174 Revitalizing base closure communities and
addressing impacts of realignment....... 768
175 [Reserved]
[[Page 9]]
176 Revitalizing base closure communities and
community assistance--Community
redevelopment and homeless assistance... 782
179 Munitions response site prioritization
protocol (MRSPP)........................ 791
SUBCHAPTER I--CIVIL DEFENSE
185 Military support to civil authorities (MSCA) 821
SUBCHAPTERS J-K [RESERVED]
SUBCHAPTER L--ENVIRONMENT
187 Environmental effects abroad of major
Department of Defense actions........... 833
188-190 [Reserved]
[[Page 11]]
SUBCHAPTER A_ACQUISITION
PART 1 [RESERVED]
PART 2_PILOT PROGRAM POLICY--Table of Contents
Sec.
2.1 Purpose.
2.2 Statutory relief for participating programs.
2.3 Regulatory relief for participating programs.
2.4 Designation of participating programs.
2.5 Criteria for designation of participating programs.
Authority: 10 U.S.C. 2340 note.
Source: 62 FR 17549, Apr. 10, 1997, unless otherwise noted.
Sec. 2.1 Purpose.
Section 809 of Public Law 101-510, ``National Defense Authorization
Act for Fiscal Year 1991,'' as amended by section 811 of Public Law 102-
484, ``National Defense Authorization Act for Fiscal Year 1993'' and
Public Law 103-160, ``National Defense Authorization Act for Fiscal Year
1994,'' authorizes the Secretary of Defense to conduct the Defense
Acquisition Pilot Program. In accordance with section 809 of Public Law
101-510, the Secretary may designate defense acquisition programs for
participation in the Defense Acquisition Pilot Program.
(a) The purpose of the pilot programs is to determine the potential
for increasing the efficiency and effectiveness of the acquisition
process. Pilot programs shall be conducted in accordance with the
standard commercial, industrial practices. As used in this policy, the
term ``standard commercial, industrial practice'' refers to any
acquisition management practice, process, or procedure that is used by
commercial companies to produce and sell goods and services in the
commercial marketplace. This definition purposely implies a broad range
of potential activities to adopt commercial practices, including
regulatory and statutory streamlining, to eliminate unique Government
requirements and practices such as government-unique contracting
policies and practices, government-unique specifications and standards,
and reliance on cost determination rather than price analysis.
(b) Standard commercial, industrial practices include, but are not
limited to:
(1) Innovative contracting policies and practices;
(2) Performance and commercial specifications and standards;
(3) Innovative budget policies;
(4) Establishing fair and reasonable prices without cost data;
(5) Maintenance of long-term relationships with quality suppliers;
(6) Acquisition of commercial and non-developmental items (including
components); and
(7) Other best commercial practices.
Sec. 2.2 Statutory relief for participating programs.
(a) Within the limitations prescribed, the applicability of any
provision of law or any regulation prescribed to implement a statutory
requirement may be waived for all programs participating in the Defense
Acquisition Pilot Program, or separately for each participating program,
if that waiver or limit is specifically authorized to be waived or
limited in a law authorizing appropriations for a program designated by
statute as a participant in the Defense Acquisition Pilot Program.
(b) Only those laws that prescribe procedures for the procurement of
supplies or services; a preference or requirement for acquisition from
any source or class of sources; any requirement related to contractor
performance; any cost allowability, cost accounting, or auditing
requirements; or any requirement for the management of, testing to be
performed under, evaluation of, or reporting on a defense acquisition
program may be waived.
(c) The requirements in section 809 of Public Law 101-510, as
amended by section 811 of Public Law 102-484, the requirements in any
law enacted on or after the enactment of Public Law 101-510 (except to
the extent that a waiver or limitation is specifically authorized for
such a defense acquisition program by statute), and any provision of law
that ensures the financial integrity of
[[Page 12]]
the conduct of a Federal Government program or that relates to the
authority of the Inspector General of the Department of Defense may not
be considered for waiver.
Sec. 2.3 Regulatory relief for participating programs.
(a) A program participating in the Defense Acquisition Pilot Program
will not be subject to any regulation, policy, directive, or
administrative rule or guideline relating to the acquisition activities
of the Department of Defense other than the Federal Acquisition
Regulation (FAR) \1\, the Defense FAR Supplement (DFARS) \2\, or those
regulatory requirements added by the Under Secretary of Defense for
Acquisition and Technology, the Head of the Component, or the DoD
Component Acquisition Executive.
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\1\ Copies of this Department of Defense publication may be obtained
from the Government Printing Office, Superintendent of Documents,
Washington, DC 20402.
\2\ See footnote 1 to Sec. 2.3(a).
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(b) Provisions of the FAR and/or DFARS that do not implement
statutory requirements may be waived by the Under Secretary of Defense
for Acquisition and Technology using appropriate administrative
procedures. Provisions of the FAR and DFARS that implement statutory
requirements may be waived or limited in accordance with the procedures
for statutory relief previously mentioned.
(c) Regulatory relief includes relief from use of government-unique
specifications and standards. Since a major objective of the Defense
Acquisition Pilot Program is to promote standard, commercial industrial
practices, functional performance and commercial specifications and
standards will be used to the maximum extent practical. Federal or
military specifications and standards may be used only when no practical
alternative exists that meet the user's needs. Defense acquisition
officials (other than the Program Manager or Commodity Manager) may only
require the use of military specifications and standards with advance
approval from the Under Secretary of Defense for Acquisition and
Technology, the Head of the DoD Component, or the DoD Component
Acquisition Executive.
Sec. 2.4 Designation of participating programs.
(a) Pilot programs may be nominated by a DoD Component Head or
Component Acquisition Executive for participation in the Defense
Acquisition Pilot Program. The Under Secretary of Defense for
Acquisition and Technology shall determine which specific programs will
participate in the pilot program and will transmit to the Congressional
defense committees a written notification of each defense acquisition
program proposed for participation in the pilot program. Programs
proposed for participation must be specifically designated as
participants in the Defense Acquisition Pilot Program in a law
authorizing appropriations for such programs and provisions of law to be
waived must be specifically authorized for waiver.
(b) Once included in the Defense Acquisition Pilot Program, decision
and approval authority for the participating program shall be delegated
to the lowest level allowed in the acquisition regulations consistent
with the total cost of the program (e.g., under DoD Directive 5000.1,
\3\ an acquisition program that is a major defense acquisition program
would be delegated to the appropriate Component Acquisition Executive as
an acquisition category IC program)
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\3\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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(c) At the time of nomination approval, the Under Secretary of
Defense for Acquisition and Technology will establish measures to judge
the success of a specific program, and will also establish a means of
reporting progress towards the measures.
Sec. 2.5 Criteria for designation of participating programs.
(a) Candidate programs must have an approved requirement, full
program funding assured prior to designation, and low risk. Nomination
of a candidate program to participate in the Defense Acquisition Pilot
Program should occur as early in the program's life-cycle as possible.
Developmental programs will only be considered on an exception basis.
[[Page 13]]
(b) Programs in which commercial or non-developmental items can
satisfy the military requirement are preferred as candidate programs. A
nominated program will address which standard commercial, industrial
practices will be used in the pilot program and how those practices will
be applied.
(c) Nomination of candidate programs must be accompanied by a list
of waivers being requested to Statutes, FAR, DFARS, DoD Directives \4\
and Instructions,\5\ and where applicable, DoD Component regulations.
Waivers being requested must be accompanied by rationale and
justification for the waiver. The justification must include:
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\4\ See footnote 3 to Sec. 2.4(b).
\5\ See footnote 3 to Sec. 2.4(b).
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(1) The provision of law proposed to be waived or limited.
(2) The effects of the provision of law on the acquisition,
including specific examples.
(3) The actions taken to ensure that the waiver or limitation will
not reduce the efficiency, integrity, and effectiveness of the
acquisition process used for the defense acquisition program; and
(4) A discussion of the efficiencies or savings, if any, that will
result from the waiver or limitation.
(d) No nominated program shall be accepted until the Under Secretary
of Defense has determined that the candidate program is properly
planned.
PART 3_TRANSACTIONS OTHER THAN CONTRACTS, GRANTS, OR COOPERATIVE AGREEMENTS
FOR PROTOTYPE PROJECTS--Table of Contents
Sec.
3.1 Purpose.
3.2 Background.
3.3 Applicability.
3.4 Definitions.
3.5 Appropriate use.
3.6 Limitations on cost-sharing.
3.7 Comptroller General access.
3.8 DoD access to records policy.
3.9 Follow-on production contracts.
Authority: Sec. 845, Pub. L. 103-160, 107 Stat. 1547, as amended.
Source: 66 FR 57383, Nov. 15, 2001, unless otherwise noted.
Sec. 3.1 Purpose.
This part consolidates rules that implement section 845 of the
National Defense Authorization Act for Fiscal Year 1994, Public Law 103-
160, 107 Stat. 1547, as amended, and have a significant impact on the
public. Section 845 authorizes the Secretary of a Military Department,
the Director of Defense Advanced Research Projects Agency, and any other
official designated by the Secretary of Defense, to enter into
transactions other than contracts, grants, or cooperative agreements in
certain situations for prototype projects that are directly relevant to
weapons or weapon systems proposed to be acquired or developed by the
Department of Defense.
[67 FR 54956, Aug. 27, 2002]
Sec. 3.2 Background.
``Other transactions'' is the term commonly used to refer to the 10
U.S.C. 2371 authority to enter into transactions other than contracts,
grants or cooperative agreements. ``Other transactions'' are generally
not subject to the Federal laws and regulations limited in applicability
to contracts, grants or cooperative agreements. As such, they are not
required to comply with the Federal Acquisition Regulation (FAR) and its
supplements (48 CFR).
[67 FR 54956, Aug. 27, 2002]
Sec. 3.3 Applicability.
This part applies to the Secretary of a Military Department, the
Directors of the Defense Agencies, and any other official designated by
the Secretary of Defense to enter into transactions other than
contracts, grants or cooperative agreements for prototype projects that
are directly relevant to weapons or weapon systems proposed to be
acquired or developed by the Department of Defense, under authority of
10 U.S.C. 2371. Such transactions are commonly referred to as ``other
transaction'' agreements and are hereafter referred to as agreements.
[65 FR 35576, June 5, 2000. Redesignated at 67 FR 54956, Aug. 27, 2002]
[[Page 14]]
Sec. 3.4 Definitions.
Agency point of contact (POC). The individual identified by the
military department or defense agency as its POC for prototype OTs.
Agreements Officer. An individual with the authority to enter into,
administer, or terminate OTs for prototype projects and make related
determinations and findings.
Approving Official. The official responsible for approving the OTs
acquisition strategy and resulting OT agreement. This official must be
at least one level above the Agreements Officer and at no lower level
than existing agency thresholds associated with procurement contracts.
Awardee. Any business unit that is the direct recipient of an OT
agreement.
Business unit. Any segment of an organization, or an entire business
organization which is not divided into segments.
Contracting activity. An element of an agency designated by the
agency head and delegated broad authority regarding acquisition
functions. It includes elements designated by the Director of a Defense
Agency which has been delegated contracting authority through its agency
charter.
Contracting Officer. A person with the authority to enter into,
administer, and/or terminate contracts and make related determinations
and findings as defined in Chapter 1 of Title 48, CFR, Federal
Acquisition Regulation, Section 2.101(b).
Cost-type OT. Agreements where payments are based on amounts
generated from the awardee's financial or cost records or that require
at least one third of the total costs to be provided by non-Federal
parties pursuant to statute or require submittal of financial or cost
records/reports to determine whether additional effort can be
accomplished for the fixed amount.
Fixed-price type OT. Agreements where payments are not based on
amounts generated from the awardee's financial or cost records.
Head of the contracting activity (HCA). The official who has overall
responsibility for managing the contracting activity.
Nontraditional Defense contractor. A business unit that has not, for
a period of at least one year prior to the date of the OT agreement,
entered into or performed on (1) any contract that is subject to full
coverage under the cost accounting standards prescribed pursuant to
section 26 of the Office of Federal Procurement Policy Act (41 U.S.C.
422) and the regulations implementing such section; or (2) any other
contract in excess of $500,000 to carry out prototype projects or to
perform basic, applied, or advanced research projects for a Federal
agency, that is subject to the Federal Acquisition Regulation.
Procurement contract. A contract awarded pursuant to the Federal
Acquisition Regulation.
Project Manager. The government manager for the prototype project.
Qualified Independent Public Accountant. An accountant that is
licensed or works for a firm that is licensed in the state or other
political jurisdiction where they operate their professional practice
and comply with the applicable provisions of the public accountancy law
and rules of the jurisdiction where the audit is being conducted.
Segment. One of two or more divisions, product departments, plants,
or other subdivisions of an organization reporting directly to a home
office, usually identified with responsibility for profit and/or
producing a product or service.
Senior Procurement Executive. The following individuals:
(1) Department of the Army--Assistant Secretary of the Army
(Acquisition, Logistics and Technology);
(2) Department of the Navy--Assistant Secretary of the Navy
(Research, Development and Acquisition);
(3) Department of the Air Force--Assistant Secretary of the Air
Force (Acquisition).
(4) The Directors of Defense Agencies who have been delegated
authority to act as Senior Procurement Executive for their respective
agencies.
Single Audit Act. Establishes uniform audit requirements for audits
of state and local government, universities, and non-profit
organizations that expend Federal awards.
Subawardee. Any business unit of a party, entity or subordinate
element
[[Page 15]]
performing effort under the OT agreement, other than the awardee.
Traditional Defense contractor. Any business unit that does not meet
the definition of a nontraditional Defense contractor.
[68 FR 27457, May 20, 2003, as amended at 69 FR 16482, Mar. 30, 2004]
Sec. 3.5 Appropriate use.
In accordance with statute, this authority may be used only when:
(a) At least one nontraditional Defense contractor is participating
to a significant extent in the prototype project; or
(b) No nontraditional Defense contractor is participating to a
significant extent in the prototype project, but at least one of the
following circumstances exists:
(1) At least one third of the total cost of the prototype project is
to be paid out of funds provided by non-Federal parties to the
transaction.
(2) The Senior Procurement Executive for the agency determines in
writing that exceptional circumstances justify the use of a transaction
that provides for innovative business arrangements or structures that
would not be feasible or appropriate under a procurement contract.
[67 FR 54956, Aug. 27, 2002]
Sec. 3.6 Limitations on cost-sharing.
(a) When a nontraditional Defense contractor is not participating to
a significant extent in the prototype project and cost-sharing is the
reason for using OT authority, then the non-Federal amounts counted as
provided, or to be provided, by the business units of an awardee or
subawardee participating in the performance of the OT agreement may not
include costs that were incurred before the date on which the OT
agreement becomes effective. Costs that were incurred for a prototype
project by the business units of an awardee or subawardee after the
beginning of negotiations, but prior to the date the OT agreement
becomes effective, may be counted as non-Federal amounts if and to the
extent that the Agreements Officer determines in writing that:
(1) The awardee or subawardee incurred the costs in anticipation of
entering into the OT agreement; and
(2) It was appropriate for the awardee or subawardee to incur the
costs before the OT agreement became effective in order to ensure the
successful implementation of the OT agreement.
(b) As a matter of policy, these limitations on cost-sharing apply
any time cost-sharing may be recognized when using OT authority for
prototype projects.
[67 FR 54956, Aug. 27, 2002]
Sec. 3.7 Comptroller General access.
(a) A clause must be included in solicitations and agreements for
prototype projects awarded under authority of 10 U.S.C. 2371, that
provide for total government payments in excess of $5,000,000 to allow
Comptroller General access to records that directly pertain to such
agreements.
(b) The clause referenced in paragraph (a) of this section will not
apply with respect to a party or entity, or subordinate element of a
party or entity, that has not entered into any other contract, grant,
cooperative agreement or ``other transaction'' agreement that provides
for audit access by a government entity in the year prior to the date of
the agreement. The clause must be included in all agreements described
in paragraph (a) of this section in order to fully implement the law by
covering those participating entities and their subordinate elements
which have entered into prior agreements providing for Government audit
access, and are therefore not exempt. The presence of the clause in an
agreement will not operate to require Comptroller General access to
records from any party or participating entity, or subordinate element
of a party or participating entity, or subordinate element of a party or
participating entity, which is otherwise exempt under the terms of the
clause and the law.
(c)(1) The right provided to the Comptroller General in a clause of
an agreement under paragraph (a) of this part, is limited as provided by
subparagraph (c)(2) of this part in the case of a party to the
agreement, an entity that participates in the performance of the
agreement, or a subordinate element of
[[Page 16]]
that party or entity, if the only cooperative agreements or ``other
transactions'' that the party, entity, or subordinate element entered
into with government entities in the year prior to the date of that
agreement are cooperative agreements or transactions that were entered
into under 10 U.S.C. 2371 or Section 845 of the National Defense
Authorization Act for Fiscal Year 1994 (Pub. L. 103-160; 10 U.S.C. 2371
note).
(c)(2) The only records of a party, other entity, or subordinate
element referred to in subparagraph (c)(1) of this part that the
Comptroller General may examine in the exercise of the right referred to
in that subparagraph, are records of the same type as the records that
the government has had the right to examine under the audit access
clauses of the previous cooperative agreements or transactions referred
to in such subparagraph that were entered into by that particular party,
entity, or subordinate element.
(d) The head of the contracting activity (HCA) that is carrying out
the agreement may waive the applicability of the Comptroller General
access requirement if the HCA determines it would not be in the public
interest to apply the requirement to the agreement. The waiver will be
effective with respect to the agreement only if the HCA transmits a
notification of the waiver to the Committees on Armed Services of the
Senate and the House of Representatives, the Comptroller General, and
the Director, Defense Procurement before entering into the agreement.
The notification must include the rationale for the determination.
(e) The HCA must notify the Director, Defense Procurement of
situations where there is evidence that the Comptroller General Access
requirement caused companies to refuse to participate or otherwise
restricted the Department's access to companies that typically do not do
business with the Department.
(f) In no case will the requirement to examine records under the
clause referenced in paragraph (a) of this section apply to an agreement
where more than three years have passed after final payment is made by
the government under such an agreement.
(g) The clause referenced in paragraph (a) of this section, must
provide for the following:
(1) The Comptroller General of the United States, in the discretion
of the Comptroller General, shall have access to and the right to
examine records of any party to the agreement or any entity that
participates in the performance of this agreement that directly pertain
to, and involve transactions relating to, the agreement.
(2) Excepted from the Comptroller General access requirement is any
party to this agreement or any entity that participates in the
performance of the agreement, or any subordinate element of such party
or entity, that, in the year prior to the date of the agreement, has not
entered into any other contract, grant, cooperative agreement, or
``other transaction'' agreement that provides for audit access to its
records by a government entity.
(3)(A) The right provided to the Comptroller General is limited as
provided in subparagraph (B) in the case of a party to the agreement,
any entity that participates in the performance of the agreement, or a
subordinate element of that party or entity if the only cooperative
agreements or ``other transactions'' that the party, entity, or
subordinate element entered into with government entities in the year
prior to the date of that agreement are cooperative agreements or
transactions that were entered into under 10 U.S.C. 2371 or Section 845
of the National Defense Authorization Act for Fiscal Year 1994 (Pub. L.
103-160; 10 U.S.C. 2371 note).
(B) The only records of a party, other entity, or subordinate
element referred to in subparagraph (A) that the Comptroller General may
examine in the exercise of the right referred to in that subparagraph
are records of the same type as the records that the government has had
the right to examine under the audit access clauses of the previous
agreements or transactions referred to in such subparagraph that were
entered into by that particular party, entity, or subordinate element.
(4) This clause shall not be construed to require any party or
entity, or any
[[Page 17]]
subordinate element of such party or entity, that participates in the
performance of the agreement, to create or maintain any record that is
not otherwise maintained in the ordinary course of business or pursuant
to a provision of law.
(5) The Comptroller General shall have access to the records
described in this clause until three years after the date the final
payment is made by the United States under this agreement.
(6) The recipient of the agreement shall flow down this provision to
any entity that participates in the performance of the agreement.
[65 FR 35576, June 5, 2000. Redesignated at 67 FR 54956, Aug. 27, 2002]
Sec. 3.8 DoD access to records policy.
(a) Applicability. This section provides policy concerning DoD
access to awardee and subawardee records on OT agreements for prototype
projects. This access is separate and distinct from Comptroller General
access.
(1) Fixed-price type OT agreements. (i) General--DoD access to
records is not generally required for fixed-price type OT agreements. In
order for an agreement to be considered a fixed-price type OT agreement,
it must adequately specify the effort to be accomplished for a fixed
amount and provide for defined payable milestones, with no provision for
financial or cost reporting that would be a basis for making adjustment
in either the work scope or price of the effort.
(ii) Termination considerations. The need to provide for DoD access
to records in the case of termination of a fixed-price type OT can be
avoided by limiting potential termination settlements to an amount
specified in the original agreement or to payment for the last completed
milestone. However, if a fixed-price agreement provides that potential
termination settlement amounts may be based on amounts generated from
cost or financial records and the agreement exceeds the specified
threshold, the OT should provide that DoD will have access to records in
the event of termination.
(2) Cost-type OT agreements. (i) Single Audit Act--In accordance
with the requirements of Public Law 98-502, as amended by Public Law
104-156, 110 STAT. 1396-1404, when a business unit that will perform the
OT agreement, or a subawardee, meets the criteria for an audit pursuant
to the Single Audit Act, the DoD must have sufficient access to the
entity's records to assure compliance with the provisions of the Act.
(ii) Traditional Defense contractors. The DoD shall have access to
records on cost-type OT agreements with traditional Defense contractors
that provide for total Government payments in excess of $5,000,000. The
content of the access to records clause shall be in accordance with
paragraph (c) of this section. The value establishing the threshold is
the total value of the agreement including all options.
(iii) Nontraditional Defense contractors. The DoD should have access
to records on cost-type OT agreements with nontraditional Defense
contractors that provide for total Government payments in excess of
$5,000,000. The content of the access to records clause should be in
accordance with paragraph (c) of this section. The value establishing
the threshold is the total value of the agreement including all options.
(iv) DoD access below threshold. The Agreements Officer has the
discretion to determine whether to include DoD access to records when
the OT does not meet any of the requirements in (a)(2)(i) through
(a)(2)(iii) of this section. The content of that access to records
clause should be tailored to meet the particular circumstances of the
agreement.
(v) Examples of cost-type OT agreements. (A) An agreement that
requires at least one-third cost share pursuant to statute.
(B) An agreement that includes payable milestones, but provides for
adjustment of the milestone amounts based on actual costs or reports
generated from the awardee's financial or cost records.
(C) An agreement that is for a fixed-Government amount, but the
agreement provides for submittal of financial or cost records/reports to
determine whether additional effort can be accomplished for the fixed
amount.
(3) Subawardees. When a DoD access to records provision is included
in the OT agreement, the awardee shall use the criteria established in
paragraphs
[[Page 18]]
(a)(2)(i) through (a)(2)(iii) of this section to determine whether DoD
access to records clauses should be included in subawards.
(b) Exceptions--(1) Nontraditional Defense contractors--(i) The
Agreements Officers may deviate, in part or in whole, from the
application of this access to records policy for a nontraditional
Defense contractor when application of the policy would adversely impact
the government's ability to incorporate commercial technology or execute
the prototype project.
(ii) The Agreements Officer will document:
(A) What aspect of the audit policy was not applied;
(B) Why it was problematic;
(C) What means will be used to protect the Government's interest;
and
(D) Why the benefits of deviating from the policy outweigh the
potential risks.
(iii) This determination will be reviewed by the approving official
as part of the pre-award approval of the agreement and submitted to the
agency POC within 10 days of award.
(iv) The agency POC will forward all such documentation received in
any given fiscal year, to the Director, Defense Procurement by 15
October of each year.
(2) Traditional Defense contractor. (i) Any departure from this
policy for other than nontraditional Defense contractors must be
approved by the Head of the Contracting Activity prior to award and set
forth the exceptional circumstances justifying deviation.
(ii) Additionally, the justification will document:
(A) What aspect of the policy was not applied;
(B) Why it was problematic;
(C) What means will be used to protect the Government's interest;
and
(D) Why the benefits of deviating from the policy outweigh the
potential risks.
(iii) The HCA will forward documentation associated with such
waivers in any given fiscal year, to the Director, Defense Procurement
by 15 October of each year.
(3) DoD access below the threshold. When the Agreements Officer
determines that access to records is appropriate for an agreement below
the $5,000,000 threshold, the content, length and extent of access may
be mutually agreed to by the parties, without documenting reasons for
departing from the policy of this section.
(4) Flow down provisions. The awardee shall submit justification for
any exception to the DoD access to records policy to the Agreements
Officer for subawardees. The Agreements Officer will review and obtain
appropriate approval, as set forth in paragraphs (b)(1) and (b)(2) of
this section.
(c) Content of DoD access to records clause. When a DoD access to
records clause is included as part of the OT agreement, address the
following areas during the negotiation of the clause:
(1) Frequency of audits. Audits will be performed when the
Agreements Officer determines it is necessary to verify statutory cost
share or to verify amounts generated from financial or cost records that
will be used as the basis for payment or adjustment of payment.
(2) Means of accomplishing audits. (i) Business units subject to the
Single Audit Act--When the awardee or subawardee is a state government,
local government, or nonprofit organization whose Federal cost
reimbursement contracts and financial assistance agreements are subject
to the Single Audit Act (Public Law 98-502, as amended by Public Law
104-156, 110 STAT. 1396-1404), the clause must apply the provisions of
that Act for purposes of performing audits of the awardee or subawardee
under the agreement.
(ii) Business units not subject to the Single Audit Act currently
performing on procurement contracts. The clause must provide that DCAA
will perform any necessary audits if, at the time of agreement award,
the awardee or subawardee is not subject to the Single Audit Act and is
performing a procurement contract that is subject to the Cost Principles
Applicable to Commercial Organizations (48 CFR part 31.2) and/or the
Cost Accounting Standards (48 CFR part 99).
(iii) Other business units. DCAA or a qualified IPA may perform any
necessary audit of a business unit of the awardee or subawardee if, at
the time of agreement award, the business unit
[[Page 19]]
does not meet the criteria in (c)(2)(i) or (c)(2)(ii) of this section.
The clause must provide for the use of a qualified IPA if such a
business unit will not accept the agreement if the Government has access
to the business unit's records. The Agreements Officer will include a
statement in the file that the business unit is not performing on a
procurement contract subject to the Cost Principles or Cost Accounting
Standards at the time of agreement award, and will not accept the
agreement if the government has access to the business unit's records.
The Agreements Officer will also prepare a report (Part III to the
annual report submission) for the Director, Defense Procurement that
identifies, for each business unit that is permitted to use an IPA: the
business unit's name, address and the expected value of its award. When
the clause provides for use of an IPA to perform any necessary audits,
the clause must state that:
(A) The IPA will perform the audit in accordance with Generally
Accepted Government Auditing Standards (GAGAS). Electronic copies of the
standards may be accessed at www.gao.gov. Printed copies may be
purchased from the U.S. Government Printing Office (for ordering
information, call (202) 512-1800 or access the Internet Site at
www.gpo.gov).
(B) The Agreements Officers' authorized representative has the right
to examine the IPA's audit report and working papers for 3 years after
final payment or three years after issuance of the audit report,
whichever is later, unless notified otherwise by the Agreements Officer.
(C) The IPA will send copies of the audit report to the Agreements
Officer and the Assistant Inspector General (Audit Policy and Oversight)
[AIG(APO)], 400 Army Navy Drive, Suite 737, Arlington, VA 22202.
(D) The IPA will report instances of suspected fraud directly to the
DoDIG.
(E) The Government has the right to require corrective action by the
awardee or subawardee if the Agreements Officer determines (subject to
appeal under the disputes clause of the agreement) that the audit has
not been performed or has not been performed in accordance with GAGAS.
The Agreements Officer should take action promptly once the Agreements
Officer determines that the audit is not being accomplished in a timely
manner or the audit is not performed in accordance with GAGAS but
generally no later than twelve (12) months of the date requested by the
Agreements Officer. The awardee or subawardee may take corrective action
by having the IPA correct any deficiencies identified by the Agreements
Officer, having another IPA perform the audit, or electing to have the
Government perform the audit. If corrective action is not taken, the
Agreements Officer has the right to take one or more of the following
actions:
(1) Withhold or disallow a specified percentage of costs until the
audit is completed satisfactorily. The agreement should include a
specified percentage that is sufficient to enhance performance of
corrective action while also not being unfairly punitive.
(2) Suspend performance until the audit is completed satisfactorily;
and/or
(3) Terminate the agreement if the agreements officer determines
that imposition of either (c)(2)(iii)(E)(1) or (c)(2)(iii)(e)(2) of this
section is not practical.
(F) If it is found that the awardee or subawardee was performing a
procurement contract subject to Cost Principles Applicable to Commercial
Organizations (48 CFR part 31.2) and/or Cost Accounting Standards (48
CFR part 99) at the time of agreement award, the Agreements Officer, or
an authorized representative, has the right to audit records of the
awardee or subawardee to verify the actual costs or reporting
information used as the basis for payment or to verify statutorily
required cost share under the agreement, and the IPA is to be paid by
the awardee or subawardee. The cost of an audit performed in accordance
with this policy is reimbursable based on the business unit's
established accounting practices and subject to any limitations in the
agreement.
(3) Scope of audit. The Agreements Officer should coordinate with
the auditor regarding the nature of any audit envisioned.
[[Page 20]]
(4) Length and extent of access. (i) Clauses that do not provide for
use of an IPA--The clause must provide for the Agreements Officer's
authorized representative to have access to directly pertinent records
of those business units of the awardee or subawardee's performing effort
under the OT agreement, when needed to verify the actual costs or
reporting used as the basis for payment or to verify statutorily
required cost share under the agreement.
(ii) Clauses that provide for use of an IPA to perform the audits.
The clause must:
(A) Provide the Agreements Officer's authorized representative
access to the IPA's audit reports and working papers to ensure that the
IPA has performed the audit in accordance with GAGAS.
(B) State that the Government will make copies of contractor records
contained in the IPA's work papers if needed to demonstrate that the
audit was not performed in accordance with GAGAS.
(C) State that the Government has no direct access to any awardee or
subawardee records unless it is found that the awardee or subawardee was
performing a procurement contract subject to Cost Principles (48 CFR
part 31) and/or Cost Accounting Standards (48 CFR part 99) at the time
of agreement award.
(iii) Business Units subject to the Single Audit Act. The clause
must provide access to the extent authorized by the Single Audit Act.
(iv) Record Retention/Period of Access. The clause must require that
the awardee and subawardee retain, and provide access to, the records
referred to in (c)(4)(i) and (c)(4)(ii) of this section for three years
after final payment, unless notified of a shorter or longer period by
the Agreements Officer.
(5) Awardee flow down responsibilities. Agreements must require
awardees to include the necessary provisions in subawards that meet the
conditions set forth in this DoD access to records policy.
(d) DoDIG and GAO access. In accordance with statute, if an
agreement gives the Agreements Officer or another DoD component official
access to a business unit's records, the DoDIG or GAO are granted the
same access to those records.
[68 FR 27457, May 20, 2003]
Sec. 3.9 Follow-on production contracts.
(a) Authority. A competitively awarded OT agreement for a prototype
project that satisfies the condition set forth in law that requires non-
Federal parties to the OT agreement to provide at least one-third of the
costs of the prototype project may provide for the award of a follow-on
production contract to the awardee of the OT prototype agreement for a
specific number of units at specific target prices, without further
competition.
(b) Conditions. The Agreements Officer must do the following in the
award of the prototype project:
(1) Ensure non-Federal parties to the OT prototype agreement offer
at least one-third of the costs of the prototype project pursuant to
subsection (d)(1)(B)(i), 10 U.S.C. 2371 note.
(2) Use competition to select parties for participation in the OT
prototype agreement and evaluate the proposed quantity and target prices
for the follow-on production units as part of that competition.
(3) Determine the production quantity that may be procured without
further competition, by balancing of the level of the investment made in
the project by the non-Federal parties with the interest of the Federal
Government in having competition among sources in the acquisition of the
product or products prototyped under the project.
(4) Specify the production quantity and target prices in the OT
prototype agreement and stipualte in the agreement that the Contracting
Officer for the follow-on contract may award a production contract
without further competition if the awardee successfully completes the
prototype project and agrees to production quantities and prices that do
not exceed those specified in the OT prototype agreement (see part
206.001 of the Defense Federal Acquisition Regulation Supplement).
(c) Limitation. As a matter of policy, establishing target prices
for production units should only be considered when the risk of the
prototype project permits realistic production pricing
[[Page 21]]
without placing undue risks on the awardee.
(d) Documentation. (1) The Agreements Officer will need to provide
information to the Contracting Officer from the agreement and award file
that the conditions set forth in paragraph (b) of this section have been
satisfied.
(2) The information shall contain, at a minimum:
(i) The competitive procedures used;
(ii) How the production quantities and target prices were evaluated
in the competition;
(iii) The percentage of cost-share; and
(iv) The production quantities and target prices set forth in the OT
agreement.
(3) The Project Manager will provide evidence of successful
completion of the prototype project to the Contracting Officer.
[69 FR 16482, Mar. 30, 2004]
PARTS 4-8 [RESERVED]
[[Page 22]]
SUBCHAPTER B_MILITARY COMMISSIONS
PART 9_PROCEDURES FOR TRIALS BY MILITARY COMMISSIONS OF CERTAIN NON-UNITED
STATES CITIZENS IN THE WAR AGAINST TERRORISM--Table of Contents
Sec.
9.1 Purpose.
9.2 Establishment of Military Commissions.
9.3 Jurisdiction.
9.4 Commission personnel.
9.5 Procedures accorded the accused.
9.6 Conduct of the trial.
9.7 Regulations.
9.8 Authority.
9.9 Protection of State secrets.
9.10 Other.
9.11 Amendment.
9.12 Delegation.
Authority: 5 U.S.C. 552(1)(a)(1)(C) and (D).
Source: 68 FR 39374, July 1, 2003, unless otherwise noted.
Sec. 9.1 Purpose.
This part implements policy, assigns responsibilities, and
prescribes procedures under the United States Constitution, Article II,
section 2 and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism'' (3 CFR, 2001 comp., p. 918, 66 FR 57833), for trials before
military commissions of individuals subject to the President's Military
Order. These procedures shall be implemented and construed so as to
ensure that any such individual receives a full and fair trial before a
military commission, as required by the President's Military Order.
Unless otherwise directed by the Secretary of Defense, and except for
supplemental procedures established pursuant to the President's Military
Order or this part, the procedures prescribed herein and no others shall
govern such trials.
Sec. 9.2 Establishment of Military Commissions.
In accordance with the President's Military Order, the Secretary of
Defense or a designee (``Appointing Authority'') may issue orders from
time to time appointing one or more military commissions to try
individuals subject to the President's Military Order and appointing any
other personnel necessary to facilitate such trials.
Sec. 9.3 Jurisdiction.
(a) Over persons. A military commission appointed under this part
(``Commission'') shall have jurisdiction over only an individual or
individuals (``the Accused''):
(1) Subject to the President's Military Order; and
(2) Alleged to have committed an offense in a charge that has been
referred to the Commission by the Appointing Authority.
(b) Over offenses. Commissions established hereunder shall have
jurisdiction over violations of the laws of war and all other offenses
triable by military commission.
(c) Maintaining integrity of commission proceedings. The Commission
may exercise jurisdiction over participants in its proceedings as
necessary to preserve the integrity and order of the proceedings.
Sec. 9.4 Commission personnel.
(a) Members--(1) Appointment. The Appointing Authority shall appoint
the members and the alternate member or members of each Commission. The
alternate member or members shall attend all sessions of the Commission,
but the absence of an alternate member shall not preclude the Commission
from conducting proceedings. In case of incapacity, resignation, or
removal of any member, an alternate member shall take the place of that
member. Any vacancy among the members or alternate members occurring
after a trial has begun may be filled by the Appointing Authority, but
the substance of all prior proceedings and evidence taken in that case
shall be made known to that new member or alternate member before the
trial proceeds.
(2) Number of members. Each Commission shall consist of at least
three but
[[Page 23]]
no more than seven members, the number being determined by the
Appointing Authority. For each such Commission, there shall also be one
or two alternate members, the number being determined by the Appointing
Authority.
(3) Qualifications. Each member and alternate member shall be a
commissioned officer of the United States armed forces (``Military
Officer''), including without limitation reserve personnel on active
duty, National Guard personnel on active duty in Federal service, and
retired personnel recalled to active duty. The Appointing Authority
shall appoint members and alternate members determined to be competent
to perform the duties involved. The Appointing Authority may remove
members and alternate members for good cause.
(4) Presiding Officer. From among the members of each Commission,
the Appointing Authority shall designate a Presiding Officer to preside
over the proceedings of that Commission. The Presiding Officer shall be
a Military Officer who is a judge advocate of any United States armed
force.
(5) Duties of the Presiding Officer. (i) The Presiding Officer shall
admit or exclude evidence at trial in accordance with section 6(d) of
this part. The Presiding Officer shall have authority to close
proceedings or portions of proceedings in accordance with Sec.
9.6(b)(3) of this part and for any other reason necessary for the
conduct of a full and fair trial.
(ii) The Presiding Officer shall ensure that the discipline,
dignity, and decorum of the proceedings are maintained, shall exercise
control over the proceedings to ensure proper implementation of the
President's Military Order and this part, and shall have authority to
act upon any contempt or breach of Commission rules and procedures. Any
attorney authorized to appear before a Commission who is thereafter
found not to satisfy the requirements for eligibility or who fails to
comply with laws, rules, regulations, or other orders applicable to the
Commission proceedings or any other individual who violates such laws,
rules, regulations, or orders may be disciplined as the Presiding
Officer deems appropriate, including but not limited to revocation of
eligibility to appear before that Commission. The Appointing Authority
may further revoke that attorney's or any other person's eligibility to
appear before any other Commission convened under this part.
(iii) The Presiding Officer shall ensure the expeditious conduct of
the trial. In no circumstance shall accommodation of counsel be allowed
to delay proceedings unreasonably.
(iv) The Presiding Officer shall certify all interlocutory
questions, the disposition of which would effect a termination of
proceedings with respect to a charge, for decision by the Appointing
Authority. The Presiding Officer may certify other interlocutory
questions to the Appointing Authority as the Presiding Officer deems
appropriate.
(b) Prosecution--(1) Office of the Chief Prosecutor. The Chief
Prosecutor shall be a judge advocate of any United States armed force,
shall supervise the overall prosecution efforts under the President's
Military Order, and shall ensure proper management of personnel and
resources.
(2) Prosecutors and Assistant Prosecutors. (i) Consistent with any
supplementary regulations or instructions issued under Sec. 9.7(a), the
Chief Prosecutor shall detail a Prosecutor and, as appropriate, one or
more Assistant Prosecutors to prepare charges and conduct the
prosecution for each case before a Commission (``Prosecution'').
Prosecutors and Assistant Prosecutors shall be:
(A) Military Officers who are judge advocates of any United States
armed force, or
(B) Special trial counsel of the Department of Justice who may be
made available by the Attorney General of the United States.
(ii) The duties of the Prosecution are:
(A) To prepare charges for approval and referral by the Appointing
Authority;
(B) To conduct the prosecution before the Commission of all cases
referred for trial; and
(C) To represent the interests of the Prosecution in any review
process.
(c) Defense--(1) Office of the Chief Defense Counsel. The Chief
Defense Counsel shall be a judge advocate of any
[[Page 24]]
United States armed force, shall supervise the overall defense efforts
under the President's Military Order, shall ensure proper management of
personnel and resources, shall preclude conflicts of interest, and shall
facilitate proper representation of all Accused.
(2) Detailed Defense Counsel. Consistent with any supplementary
regulations or instructions issued under Sec. 9.7(a), the Chief Defense
Counsel shall detail one or more Military Officers who are judge
advocates of any United States armed force to conduct the defense for
each case before a Commission (``Detailed Defense Counsel''). The duties
of the Detailed Defense Counsel are:
(i) To defend the Accused zealously within the bounds of the law
without regard to personal opinion as to the guilt of the Accused; and
(ii) To represent the interests of the Accused in any review process
as provided by this part.
(iii) Choice of Counsel. (A) The Accused may select a Military
Officer who is a judge advocate of any United States armed force to
replace the Accused's Detailed Defense Counsel, provided that Military
Officer has been determined to be available in accordance with any
applicable supplementary regulations or instructions issued under Sec.
9.7(a). After such selection of a new Detailed Defense Counsel, the
original Detailed Defense Counsel will be relieved of all duties with
respect to that case. If requested by the Accused, however, the
Appointing Authority may allow the original Detailed Defense Counsel to
continue to assist in representation of the Accused as another Detailed
Defense Counsel.
(B) The Accused may also retain the services of a civilian attorney
of the Accused's own choosing and at no expense to the United States
Government (``Civilian Defense Counsel''), provided that attorney:
(1) Is a United States citizen;
(2) Is admitted to the practice of law in a State, district,
territory, or possession of the United States, or before a Federal
court;
(3) Has not been the subject of any sanction or disciplinary action
by any court, bar, or other competent governmental authority for
relevant misconduct;
(4) Has been determined to be eligible for access to information
classified at the level SECRET or higher under the authority of and in
accordance with the procedures prescribed in DoD 5200.2-R \1\; and
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(5) Has signed a written agreement to comply with all applicable
regulations or instructions for counsel, including any rules of court
for conduct during the course of proceedings. Civilian attorneys may be
pre-qualified as members of the pool of available attorneys if, at the
time of application, they meet the relevant criteria, or they may be
qualified on an ad hoc basis after being requested by an Accused.
Representation by Civilian Defense Counsel will not relieve Detailed
Defense Counsel of the duties specified in paragraph (c)(2) of this
section. The qualification of a Civilian Defense Counsel does not
guarantee that person's presence at closed Commission proceedings or
that person's access to any information protected under Sec. 9.6(d)(5).
(4) Continuity of representation. The Accused must be represented at
all relevant times by Detailed Defense Counsel. Detailed Defense Counsel
and Civilian Defense Counsel shall be herein referred to collectively as
``Defense Counsel.'' The Accused and Defense Counsel shall be herein
referred to collectively as ``the Defense.''
(d) Other Personnel. Other personnel, such as court reporters,
interpreters, security personnel, bailiffs, and clerks may be detailed
or employed by the Appointing Authority, as necessary.
Sec. 9.5 Procedures accorded the accused.
The following procedures shall apply with respect to the Accused:
(a) The Prosecution shall furnish to the Accused, sufficiently in
advance of trial to prepare a defense, a copy of the charges in English
and, if appropriate, in another language that the Accused understands.
(b) The Accused shall be presumed innocent until proven guilty.
(c) A Commission member shall vote for a finding of Guilty as to an
offense if and only if that member is convinced
[[Page 25]]
beyond a reasonable doubt, based on the evidence admitted at trial, that
the Accused is guilty of the offense.
(d) At least one Detailed Defense Counsel shall be made available to
the Accused sufficiently in advance of trial to prepare a defense and
until any findings and sentence become final in accordance with Sec.
9.6(h)(2).
(e) The Prosecution shall provide the Defense with access to
evidence the Prosecution intends to introduce at trial and with access
to evidence known to the Prosecution that tends to exculpate the
Accused. Such access shall be consistent with Sec. 9.6(d)(5) and
subject to Sec. 9.9.
(f) The Accused shall not be required to testify during trial. A
Commission shall draw no adverse inference from an Accused's decision
not to testify. This subsection shall not preclude admission of evidence
of prior statements or conduct of the Accused.
(g) If the Accused so elects, the Accused may testify at trial on
the Accused's own behalf and shall then be subject to cross-examination.
(h) The Accused may obtain witnesses and documents for the Accused's
defense, to the extent necessary and reasonably available as determined
by the Presiding Officer. Such access shall be consistent with the
requirements of Sec. 9.6(d)(5) and subject to Sec. 9.9. The Appointing
Authority shall order that such investigative or other resources be made
available to the Defense as the Appointing Authority deems necessary for
a full and fair trial.
(i) The Accused may have Defense Counsel present evidence at trial
in the Accused's defense and cross-examine each witness presented by the
Prosecution who appears before the Commission.
(j) The Prosecution shall ensure that the substance of the charges,
the proceedings, and any documentary evidence are provided in English
and, if appropriate, in another language that the Accused understands.
The Appointing Authority may appoint one or more interpreters to assist
the Defense, as necessary.
(k) The Accused may be present at every stage of the trial before
the Commission, consistent with Sec. 9.6(b)(3), unless the Accused
engages in disruptive conduct that justifies exclusion by the Presiding
Officer. Detailed Defense Counsel may not be excluded from any trial
proceeding or portion thereof.
(l) Except by order of the Commission for good cause shown, the
Prosecution shall provide the Defense with access before sentencing
proceedings to evidence the Prosecution intends to present in such
proceedings. Such access shall be consistent with Sec. 9.6(d)(5) of
this part and subject to Sec. 9.9.
(m) The Accused may make a statement during sentencing proceedings.
(n) The Accused may have Defense Counsel submit evidence to the
Commission during sentencing proceedings.
(o) The Accused shall be afforded a trial open to the public (except
proceedings closed by the Presiding Officer), consistent with Sec.
9.6(b).
(p) The Accused shall not again be tried by any Commission for a
charge once a Commission's finding on that charge becomes final in
accordance with Sec. 9.6(h)(2).
Sec. 9.6 Conduct of the trial.
(a) Pretrial procedures--(1) Preparation of the Charges. The
Prosecution shall prepare charges for approval by the Appointing
Authority, as provided in Sec. 9.4(b)(2)(i).
(2) Referral to the Commission. The Appointing Authority may approve
and refer for trial any charge against an individual or individuals
within the jurisdiction of a Commission in accordance with Sec. 9.3(a)
and alleging an offense within the jurisdiction of a Commission in
accordance with Sec. 9.3(b).
(3) Notification of the accused. The Prosecution shall provide
copies of the charges approved by the Appointing Authority to the
Accused and Defense Counsel. The Prosecution also shall submit the
charges approved by the Appointing Authority to the Presiding Officer of
the Commission to which they were referred.
(4) Plea Agreements. The Accused, through Defense Counsel, and the
Prosecution may submit for approval to the Appointing Authority a plea
agreement mandating a sentence limitation or any other provision in
exchange for an agreement to plead guilty, or any other consideration.
Any agreement to plead
[[Page 26]]
guilty must include a written stipulation of fact, signed by the
Accused, that confirms the guilt of the Accused and the voluntary and
informed nature of the plea of guilty. If the Appointing Authority
approves the plea agreement, the Commission will, after determining the
voluntary and informed nature of the plea agreement, admit the plea
agreement and stipulation into evidence and be bound to adjudge findings
and a sentence pursuant to that plea agreement.
(5) Issuance and service of process; obtaining evidence. (i) The
Commission shall have power to:
(A) Summon witnesses to attend trial and testify;
(B) Administer oaths or affirmations to witnesses and other persons
and to question witnesses;
(C) Require the production of documents and other evidentiary
material; and
(D) Designate special commissioners to take evidence.
(ii) The Presiding Officer shall exercise these powers on behalf of
the Commission at the Presiding Officer's own initiative, or at the
request of the Prosecution or the Defense, as necessary to ensure a full
and fair trial in accordance with the President's Military Order and
this part. The Commission shall issue its process in the name of the
Department of Defense over the signature of the Presiding Officer. Such
process shall be served as directed by the Presiding Officer in a manner
calculated to give reasonable notice to persons required to take action
in accordance with that process.
(b) Duties of the Commission during trial. The Commission shall:
(1) Provide a full and fair trial.
(2) Proceed impartially and expeditiously, strictly confining the
proceedings to a full and fair trial of the charges, excluding
irrelevant evidence, and preventing any unnecessary interference or
delay.
(3) Hold open proceedings except where otherwise decided by the
Appointing Authority or the Presiding Officer in accordance with the
President's Military Order and this part. Grounds for closure include
the protection of information classified or classifiable under Executive
Order 12958; information protected by law or rule from unauthorized
disclosure; the physical safety of participants in Commission
proceedings, including prospective witnesses; intelligence and law
enforcement sources, methods, or activities; and other national security
interests. The Presiding Officer may decide to close all or part of a
proceeding on the Presiding Officer's own initiative or based upon a
presentation, including an ex parte, in camera presentation by either
the Prosecution or the Defense. A decision to close a proceeding or
portion thereof may include a decision to exclude the Accused, Civilian
Defense Counsel, or any other person, but Detailed Defense Counsel may
not be excluded from any trial proceeding or portion thereof. Except
with the prior authorization of the Presiding Officer and subject to
section 9 of this part, Defense Counsel may not disclose any information
presented during a closed session to individuals excluded from such
proceeding or part thereof. Open proceedings may include, at the
discretion of the Appointing Authority, attendance by the public and
accredited press, and public release of transcripts at the appropriate
time. Proceedings should be open to the maximum extent practicable.
Photography, video, or audio broadcasting, or recording of or at
Commission proceedings shall be prohibited, except photography, video,
and audio recording by the Commission pursuant to the direction of the
Presiding Officer as necessary for preservation of the record of trial.
(4) Hold each session at such time and place as may be directed by
the Appointing Authority. Members of the Commission may meet in closed
conference at any time.
(5) As soon as practicable at the conclusion of a trial, transmit an
authenticated copy of the record of trial to the Appointing Authority.
(c) Oaths. (1) Members of a Commission, all Prosecutors, all Defense
Counsel, all court reporters, all security personnel, and all
interpreters shall take an oath to perform their duties faithfully.
(2) Each witness appearing before a Commission shall be examined
under oath, as provided in paragraph (d)(2)(ii) of this section.
[[Page 27]]
(3) An oath includes an affirmation. Any formulation that appeals to
the conscience of the person to whom the oath is administered and that
binds that person to speak the truth, or, in the case of one other than
a witness, properly to perform certain duties, is sufficient.
(d) Evidence--(1) Admissibility. Evidence shall be admitted if, in
the opinion of the Presiding Officer (or instead, if any other member of
the Commission so requests at the time the Presiding Officer renders
that opinion, the opinion of the Commission rendered at that time by a
majority of the Commission), the evidence would have probative value to
a reasonable person.
(2) Witnesses--(i) Production of witnesses. The Prosecution or the
Defense may request that the Commission hear the testimony of any
person, and such testimony shall be received if found to be admissible
and not cumulative. The Commission may also summon and hear witnesses on
its own initiative. The Commission may permit the testimony of witnesses
by telephone, audiovisual means, or other means; however, the Commission
shall consider the ability to test the veracity of that testimony in
evaluating the weight to be given to the testimony of the witness.
(ii) Testimony. Testimony of witnesses shall be given under oath or
affirmation. The Commission may still hear a witness who refuses to
swear an oath or make a solemn undertaking; however, the Commission
shall consider the refusal to swear an oath or give an affirmation in
evaluating the weight to be given to the testimony of the witness.
(iii) Examination of witnesses. A witness who testifies before the
Commission is subject to both direct examination and cross-examination.
The Presiding Officer shall maintain order in the proceedings and shall
not permit badgering of witnesses or questions that are not material to
the issues before the Commission. Members of the Commission may question
witnesses at any time.
(iv) Protection of witnesses. The Presiding Officer shall consider
the safety of witnesses and others, as well as the safeguarding of
Protected Information as defined in paragraph (d)(5)(i) of this section,
in determining the appropriate methods of receiving testimony and
evidence. The Presiding Officer may hear any presentation by the
Prosecution or the Defense, including an ex parte, in camera
presentation, regarding the safety of potential witnesses before
determining the ways in which witnesses and evidence will be protected.
The Presiding Officer may authorize any methods appropriate for the
protection of witnesses and evidence. Such methods may include, but are
not limited to: testimony by telephone, audiovisual means, or other
electronic means; closure of the proceedings; introduction of prepared
declassified summaries of evidence; and the use of pseudonyms.
(3) Other evidence. Subject to the requirements of paragraph (d)(1)
of this section concerning admissibility, the Commission may consider
any other evidence including, but not limited to, testimony from prior
trials and proceedings, sworn or unsworn written statements, physical
evidence, or scientific or other reports.
(4) Notice. The Commission may, after affording the Prosecution and
the Defense an opportunity to be heard, take conclusive notice of facts
that are not subject to reasonable dispute either because they are
generally known or are capable of determination by resort to sources
that cannot reasonably be contested.
(5) Protection of Information--(i) Protective Order. The Presiding
Officer may issue protective orders as necessary to carry out the
Military Order and this part, including to safeguard ``Protected
Information,'' which includes:
(A) Information classified or classifiable pursuant to Executive
Order 12958;
(B) Information protected by law or rule from unauthorized
disclosure;
(C) Information the disclosure of which may endanger the physical
safety of participants in Commission proceedings, including prospective
witnesses;
(D) Information concerning intelligence and law enforcement sources,
methods, or activities; or
(E) Information concerning other national security interests. As
soon as practicable, counsel for either side will
[[Page 28]]
notify the Presiding Officer of any intent to offer evidence involving
Protected Information.
(ii) Limited disclosure. The Presiding Officer, upon motion of the
Prosecution or sua sponte, shall, as necessary to protect the interests
of the United States and consistent with Sec. 9.9, direct:
(A) The deletion of specified items of Protected Information from
documents to be made available to the Accused, Detailed Defense Counsel,
or Civilian Defense Counsel;
(B) The substitution of a portion or summary of the information for
such Protected Information; or
(C) The substitution of a statement of the relevant facts that the
Protected Information would tend to prove. The Prosecution's motion and
any materials submitted in support thereof or in response thereto shall,
upon request of the Prosecution, be considered by the Presiding Officer
ex parte, in camera, but no Protected Information shall be admitted into
evidence for consideration by the Commission if not presented to
Detailed Defense Counsel.
(iii) Closure of proceedings. The Presiding Officer may direct the
closure of proceedings in accordance with paragraph (b)(3) of this
section.
(iv) Protected information as part of the record of trial. All
exhibits admitted as evidence but containing Protected Information shall
be sealed and annexed to the record of trial. Additionally, any
Protected Information not admitted as evidence but reviewed in camera
and subsequently withheld from the Defense over Defense objection shall,
with the associated motions and responses and any materials submitted in
support thereof, be sealed and annexed to the record of trial as
additional exhibits. Such sealed material shall be made available to
reviewing authorities in closed proceedings.
(e) Proceedings during trial. The proceedings at each trial will be
conducted substantially as follows, unless modified by the Presiding
Officer to suit the particular circumstances:
(1) Each charge will be read, or its substance communicated, in the
presence of the Accused and the Commission.
(2) The Presiding Officer shall ask each Accused whether the Accused
pleads ``Guilty'' or ``Not Guilty.'' Should the Accused refuse to enter
a plea, the Presiding Officer shall enter a plea of ``Not Guilty'' on
the Accused's behalf. If the plea to an offense is ``Guilty,'' the
Presiding Officer shall enter a finding of Guilty on that offense after
conducting sufficient inquiry to form an opinion that the plea is
voluntary and informed. Any plea of Guilty that is not determined to be
voluntary and informed shall be changed to a plea of Not Guilty. Plea
proceedings shall then continue as to the remaining charges. If a plea
of ``Guilty'' is made on all charges, the Commission shall proceed to
sentencing proceedings; if not, the Commission shall proceed to trial as
to the charges for which a ``Not Guilty'' plea has been entered.
(3) The Prosecution shall make its opening statement.
(4) The witnesses and other evidence for the Prosecution shall be
heard or received.
(5) The Defense may make an opening statement after the
Prosecution's opening statement or prior to presenting its case.
(6) The witnesses and other evidence for the Defense shall be heard
or received.
(7) Thereafter, the Prosecution and the Defense may introduce
evidence in rebuttal and surrebuttal.
(8) The Prosecution shall present argument to the Commission.
Defense Counsel shall be permitted to present argument in response, and
then the Prosecution may reply in rebuttal.
(9) After the members of the Commission deliberate and vote on
findings in closed conference, the Presiding Officer shall announce the
Commission's findings in the presence of the Commission, the
Prosecution, the Accused, and Defense Counsel. The individual votes of
the members of the Commission shall not be disclosed.
(10) In the event a finding of Guilty is entered for an offense, the
Prosecution and the Defense may present information to aid the
Commission in determining an appropriate sentence. The Accused may
testify and shall be subject to cross-examination regarding any such
testimony.
[[Page 29]]
(11) The Prosecution and, thereafter, the Defense shall present
argument to the Commission regarding sentencing.
(12) After the members of the Commission deliberate and vote on a
sentence in closed conference, the Presiding Officer shall announce the
Commission's sentence in the presence of the Commission, the
Prosecution, the Accused, and Defense Counsel. The individual votes of
the members of the Commission shall not be disclosed.
(f) Voting. Members of the Commission shall deliberate and vote in
closed conference. A Commission member shall vote for a finding of
Guilty as to an offense if and only if that member is convinced beyond a
reasonable doubt, based on the evidence admitted at trial, that the
Accused is guilty of the offense. An affirmative vote of two-thirds of
the members is required for a finding of Guilty. When appropriate, the
Commission may adjust a charged offense by exceptions and substitutions
of language that do not substantially change the nature of the offense
or increase its seriousness, or it may vote to convict of a lesser-
included offense. An affirmative vote of two-thirds of the members is
required to determine a sentence, except that a sentence of death
requires a unanimous, affirmative vote of all of the members. Votes on
findings and sentences shall be taken by secret, written ballot.
(g) Sentence. Upon conviction of an Accused, the Commission shall
impose a sentence that is appropriate to the offense or offenses for
which there was a finding of Guilty, which sentence may include death,
imprisonment for life or for any lesser term, payment of a fine or
restitution, or such other lawful punishment or condition of punishment
as the Commission shall determine to be proper. Only a Commission of
seven members may sentence an Accused to death. A Commission may
(subject to rights of third parties) order confiscation of any property
of a convicted Accused, deprive that Accused of any stolen property, or
order the delivery of such property to the United States for
disposition.
(h) Post-trial procedures--(1) Record of Trial. Each Commission
shall make a verbatim transcript of its proceedings, apart from all
Commission deliberations, and preserve all evidence admitted in the
trial (including any sentencing proceedings) of each case brought before
it, which shall constitute the record of trial. The court reporter shall
prepare the official record of trial and submit it to the Presiding
Officer for authentication upon completion. The Presiding Officer shall
transmit the authenticated record of trial to the Appointing Authority.
If the Secretary of Defense is serving as the Appointing Authority, the
record shall be transmitted to the Review Panel constituted under
paragraph (h)(4) of this section.
(2) Finality of findings and sentence. A Commission finding as to a
charge and any sentence of a Commission becomes final when the President
or, if designated by the President, the Secretary of Defense makes a
final decision thereon pursuant to section 4(c)(8) of the President's
Military Order and in accordance with paragraph (h)(6) of this section.
An authenticated finding of Not Guilty as to a charge shall not be
changed to a finding of Guilty. Any sentence made final by action of the
President or the Secretary of Defense shall be carried out promptly.
Adjudged confinement shall begin immediately following the trial.
(3) Review by the Appointing Authority. If the Secretary of Defense
is not the Appointing Authority, the Appointing Authority shall promptly
perform an administrative review of the record of trial. If satisfied
that the proceedings of the Commission were administratively complete,
the Appointing Authority shall transmit the record of trial to the
Review Panel constituted under paragraph (h)(4) of this section. If not
so satisfied, the Appointing Authority shall return the case for any
necessary supplementary proceedings.
(4) Review Panel. The Secretary of Defense shall designate a Review
Panel consisting of three Military Officers, which may include civilians
commissioned pursuant to section 603 of title 10, United States Code. At
least one member of each Review Panel shall have experience as a judge.
The Review Panel shall review the record of trial and, in its
discretion, any written submissions from the Prosecution and the Defense
and shall deliberate in closed
[[Page 30]]
conference. The Review Panel shall disregard any variance from
procedures specified in this part or elsewhere that would not materially
have affected the outcome of the trial before the Commission. Within
thirty days after receipt of the record of trial, the Review Panel shall
either:
(i) Forward the case to the Secretary of Defense with a
recommendation as to disposition, or
(ii) Return the case to the Appointing Authority for further
proceedings, provided that a majority of the Review Panel has formed a
definite and firm conviction that a material error of law occurred.
(5) Review by the Secretary of Defense. The Secretary of Defense
shall review the record of trial and the recommendation of the Review
Panel and either return the case for further proceedings or, unless
making the final decision pursuant to a Presidential designation under
section 4(c)(8) of the President's Military Order, forward it to the
President with a recommendation as to disposition.
(6) Final decision. After review by the Secretary of Defense, the
record of trial and all recommendations will be forwarded to the
President for review and final decision (unless the President has
designated the Secretary of Defense to perform this function). If the
President has so designated the Secretary of Defense, the Secretary may
approve or disapprove findings or change a finding of Guilty to a
finding of Guilty to a lesser-included offense, or mitigate, commute,
defer, or suspend the sentence imposed or any portion thereof. If the
Secretary of Defense is authorized to render the final decision, the
review of the Secretary of Defense under paragraph (h)(5) of this
section shall constitute the final decision.
Sec. 9.7 Regulations.
(a) Supplementary regulations and instructions. The Appointing
Authority shall, subject to approval of the General Counsel of the
Department of Defense if the Appointing Authority is not the Secretary
of Defense, publish such further regulations consistent with the
President's Military Order and this part as are necessary or appropriate
for the conduct of proceedings by Commissions under the President's
Military Order. The General Counsel shall issue such instructions
consistent with the President's Military Order and this part as the
General Counsel deems necessary to facilitate the conduct of proceedings
by such Commissions, including those governing the establishment of
Commission-related offices and performance evaluation and reporting
relationships.
(b) Construction. In the event of any inconsistency between the
President's Military Order and this part, including any supplementary
regulations or instructions issued under paragraph (a) of this section,
the provisions of the President's Military Order shall govern. In the
event of any inconsistency between this part and any regulations or
instructions issued under paragraph (a) of this section, the provisions
of this part shall govern.
Sec. 9.8 Authority.
Nothing in this part shall be construed to limit in any way the
authority of the President as Commander in Chief of the Armed Forces or
the power of the President to grant reprieves and pardons. Nothing in
this part shall affect the authority to constitute military commissions
for a purpose not governed by the President's Military Order.
Sec. 9.9 Protection of State secrets.
Nothing in this part shall be construed to authorize disclosure of
state secrets to any person not authorized to receive them.
Sec. 9.10 Other.
This part is not intended to and does not create any right, benefit,
or privilege, substantive or procedural, enforceable by any party,
against the United States, its departments, agencies, or other entities,
its officers or employees, or any other person. No provision in this
part shall be construed to be a requirement of the United States
Constitution. Section and subsection captions in this document are for
convenience only and shall not be used in construing the requirements of
this part. Failure to meet a time period specified in this
[[Page 31]]
part, or supplementary regulations or instructions issued under Sec.
9.7(a), shall not create a right to relief for the Accused or any other
person. DoD Directive 5025.1 \2\ shall not apply to this part or any
supplementary regulations or instructions issued under Sec. 9.7(a).
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Sec. 9.11 Amendment.
The Secretary of Defense may amend this part from time to time.
Sec. 9.12 Delegation.
The authority of the Secretary of Defense to make requests for
assistance under section 5 of the President's Military Order is
delegated to the General Counsel of the Department of Defense. The
Executive Secretary of the Department of Defense shall provide such
assistance to the General Counsel as the General Counsel determines
necessary for this purpose.
PART 10_MILITARY COMMISION INSTRUCTIONS--Table of Contents
Sec.
10.1 Purpose.
10.2 Authority.
10.3 Applicability.
10.4 Policies and procedures.
10.5 Construction.
10.6 Non-creation of right.
10.7 Reservation of authority.
10.8 Amendment.
Authority: 10 U.S.C. 113Id) and 140(b).
Source: 68 FR 39380, July 1, 2003, unless otherwise noted.
Sec. 10.1 Purpose.
This part establishes policies for the issuance and interpretation
of Military Commission Instructions promulgated pursuant to 32 CFR part
9, and Military Order of November 13, 2001, ``Detention, Treatment, and
Trial of Certain Non-Citizens in the War Against Terrorism,'' (3 CFR,
2001 comp., p. 918, 66 FR 57833).
Sec. 10.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
10 U.S.C. 113(d) and 140(b).
Sec. 10.3 Applicability.
This part, and, unless stated otherwise, all other Military
Commission Instructions apply throughout the Department of Defense,
including to the Office of the Secretary of Defense, the Military
Departments, the Chairman and Vice Chairman of the Joint Chiefs of Staff
and the Joint Staff, the Combatant Commands, the Office of the Inspector
General of the Department of Defense, the Defense Agencies, the
Department of Defense Field Activities, and all other organizational
entities within the Department of Defense, to any special trial counsel
of the Department of Justice who may be made available by the Attorney
General of the United States to serve as a prosecutor in trials before
military commissions pursuant to 32 CFR 9.4(b)(2), to any civilian
attorney who seeks qualification as a member of the pool of qualified
Civilian Defense Counsel authorized in 32 CFR 9.4(c)(3)(ii), and to any
attorney who has been qualified as a member of that pool.
Sec. 10.4 Policies and procedures.
(a) Promulgation. Military Commission Instructions will be issued by
the General Counsel of the Department of Defense (hereinafter General
Counsel). Each Instruction will issue over the signature of the General
Counsel and, unless otherwise specified therein, shall take effect upon
the signature of the General Counsel. Instructions will be numbered in
sequence.
(b) Professional responsibility. Compliance with these Instructions
shall be deemed a professional responsibility obligation for the
practice of law within the Department of Defense.
(c) Compliance breaches. Failure to adhere to these Instructions or
any other failure to comply with any rule, regulation, or Instruction
applicable to trials by military commission convened pursuant to 32 CFR
part 9, and Military Order of November 13, 2001, ``Detention, Treatment,
and Trial of Certain Non-Citizens in the War Against Terrorism,'' may be
subject to appropriate action by the Appointing Authority, the General
Counsel of the
[[Page 32]]
Department of Defense, or the Presiding Officer of a military
commission. Such action may include permanently barring an individual
from participating in any military commission proceeding convened
pursuant to 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' punitive measures imposed under 10 U.S.C. 898, and
any other lawful sanction.
Sec. 10.5 Construction.
Military Commission Instructions shall be construed in a manner
consistent with 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism.'' Nothing in these Military Commission Instructions
applies with respect to the trial of crimes by military commissions
convened under other authority. In the event of an inconsistency, the
provisions of 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' shall govern as provided in Section 7(B) of
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism.'' Pronouns
referring to the male gender shall be construed as applying to both male
and female.
Sec. 10.6 Non-creation of right.
Neither this part nor any Military Commission Instruction issued
hereafter, is intended to and does not create any right, benefit,
privilege, substantive or procedural, enforceable by any party, against
the United States, its departments, agencies, or other entities, its
officers or employees, or any other person. Alleged noncompliance with
an Instruction does not, of itself, constitute error, give rise to
judicial review, or establish a right to relief for the Accused or any
other person.
Sec. 10.7 Reservation of authority.
Neither this part nor any Military Commission Instruction issued
hereafter shall be construed to limit, impair, or otherwise affect any
authority granted by the Constitution or laws of the United States or
Department of Defense regulation or directive.
Sec. 10.8 Amendment.
The General Counsel may issue, supplement, amend, or revoke any
Military Commission Instruction at any time.
PART 11_CRIMES AND ELEMENTS FOR TRIALS BY MILITARY COMMISSION--Table of
Contents
Sec.
11.1 Purpose.
11.2 Authority.
11.3 General.
11.4 Applicable principles of law.
11.5 Definitions.
11.6 Crimes and elements.
Authority: 10 U.S.C. 821.
Source: 68 FR 39381, July 1, 2003, unless otherwise noted.
Sec. 11.1 Purpose.
This part provides guidance with respect to crimes that may be tried
by military commissions established pursuant to 32 CFR part 9, and
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' (3 CFR, 2001
comp., p. 918, 66 FR 57833) and enumerates the elements of those crimes.
Sec. 11.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' (66 FR 57833)
and 10 U.S.C. 113(d), 140(b), and 821. The provisions of 32 CFR part 10
are applicable to this part.
Sec. 11.3 General.
(a) Background. The following crimes and elements thereof are
intended for use by military commissions established pursuant to 32 CFR
part 9, and Military Order of November 13, 2001, ``Detention, Treatment,
and Trial of Certain Non-Citizens in the War Against Terrorism,'' the
jurisdiction of which extends to offenses or offenders that by statute
or the law of armed
[[Page 33]]
conflict may be tried by military commission as limited by Military
Order of November 13, 2001, ``Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism.'' No offense is cognizable in
a trial by military commission if that offense did not exist prior to
the conduct in question. These crimes and elements derive from the law
of armed conflict, a body of law that is sometimes referred to as the
law of war. They constitute violations of the law of armed conflict or
offenses that, consistent with that body of law, are triable by military
commission. Because this document is declarative of existing law, it
does not preclude trial for crimes that occurred prior to its effective
date.
(b) Effect of other laws. No conclusion regarding the applicability
or persuasive authority of other bodies of law should be drawn solely
from the presence, absence, or similarity of particular language in this
part as compared to other articulations of law.
(c) Non-exclusivity. This part does not contain a comprehensive list
of crimes triable by military commission. It is intended to be
illustrative of applicable principles of the common law of war but not
to provide an exclusive enumeration of the punishable acts recognized as
such by that law. The absence of a particular offense from the corpus of
those enumerated herein does not preclude trial for that offense.
Sec. 11.4 Applicable principles of law.
(a) General intent. All actions taken by the Accused that are
necessary for completion of a crime must be performed with general
intent. This intent is not listed as a separate element. When the mens
rea required for culpability to attach involves an intent that a
particular consequence occur, or some other specific intent, an intent
element is included. The necessary relationship between such intent
element and the conduct constituting the actus reus is not articulated
for each set of elements, but is presumed; a nexus between the two is
necessary.
(b) The element of wrongfulness and defenses. Conduct must be
wrongful to constitute one of the offenses enumerated herein or any
other offense triable by military commission. Conduct is wrongful if it
is done without justification or excuse cognizable under applicable law.
The element of wrongfulness (or the absence of lawful justification or
excuse), which may be required under the customary law of armed
conflict, is not repeated in the elements of crimes in Sec. 11.6.
Conduct satisfying the elements found herein shall be inferred to be
wrongful in the absence of evidence to the contrary. Similarly, this
part does not enunciate defenses that may apply for specific offenses,
though an Accused is entitled to raise any defense available under the
law of armed conflict. Defenses potentially available to an Accused
under the law of armed conflict, such as self-defense, mistake of fact,
and duress, may be applicable to certain offenses subject to trial by
military commission. In the absence of evidence to the contrary,
defenses in individual cases shall be presumed not to apply. The burden
of going forward with evidence of lawful justification or excuse or any
applicable defense shall be upon the Accused. With respect to the issue
of combatant immunity raised by the specific enumeration of an element
requiring the absence thereof, the prosecution must affirmatively prove
that element regardless of whether the issue is raised by the defense.
Once an applicable defense or an issue of lawful justification or lawful
excuse is fairly raised by the evidence presented, except for the
defense of lack of mental responsibility, the burden is on the
prosecution to establish beyond a reasonable doubt that the conduct was
wrongful or that the defense does not apply. With respect to the defense
of lack of mental responsibility, the Accused has the burden of proving
by clear and convincing evidence that, as a result of a severe mental
disease or defect, the Accused was unable to appreciate the nature and
quality of the wrongfulness of the Accused's acts. As provided in 32 CFR
9.5(c), the prosecution bears the burden of establishing the Accused's
guilt beyond a reasonable doubt in all cases tried by a military
commission. Each element of an offense enumerated herein must be proven
beyond a reasonable doubt.
[[Page 34]]
(c) Statute of limitations. Violations of the laws of war listed
herein are not subject to any statute of limitations.
Sec. 11.5 Definitions.
(a) Combatant immunity. Under the law of armed conflict, only a
lawful combatant enjoys ``combatant immunity'' or ``belligerent
privilege'' for the lawful conduct of hostilities during armed conflict.
(b) Enemy. ``Enemy'' includes any entity with which the United
States or allied forces may be engaged in armed conflict, or which is
preparing to attack the United States. It is not limited to foreign
nations, or foreign military organizations or members thereof. ``Enemy''
specifically includes any organization of terrorists with international
reach.
(c) In the context of and was associated with armed conflict.
Elements containing this language require a nexus between the conduct
and armed hostilities. Such nexus could involve, but is not limited to,
time, location, or purpose of the conduct in relation to the armed
hostilities. The existence of such factors, however, may not satisfy the
necessary nexus (e.g., murder committed between members of the same
armed force for reasons of personal gain unrelated to the conflict, even
if temporally and geographically associated with armed conflict, is not
``in the context of'' the armed conflict). The focus of this element is
not the nature or characterization of the conflict, but the nexus to it.
This element does not require a declaration of war, ongoing mutual
hostilities, or confrontation involving a regular national armed force.
A single hostile act or attempted act may provide sufficient basis for
the nexus so long as its magnitude or severity rises to the level of an
``armed attack'' or an ``act of war,'' or the number, power, stated
intent or organization of the force with which the actor is associated
is such that the act or attempted act is tantamount to an attack by an
armed force. Similarly, conduct undertaken or organized with knowledge
or intent that it initiate or contribute to such hostile act or
hostilities would satisfy the nexus requirement.
(d) Military Objective. ``Military objectives'' are those potential
targets during an armed conflict which, by their nature, location,
purpose, or use, effectively contribute to the opposing force's war-
fighting or war-sustaining capability and whose total or partial
destruction, capture, or neutralization would constitute a military
advantage to the attacker under the circumstances at the time of the
attack.
(e) Object of the attack. ``Object of the attack'' refers to the
person, place, or thing intentionally targeted. In this regard, the term
includes neither collateral damage nor incidental injury or death.
(f) Protected property. ``Protected property'' refers to property
specifically protected by the law of armed conflict such as buildings
dedicated to religion, education, art, science or charitable purposes,
historic monuments, hospitals, or places where the sick and wounded are
collected, provided they are not being used for military purposes or are
not otherwise military objectives. Such property would include objects
properly identified by one of the distinctive emblems of the Geneva
Conventions but does not include all civilian property.
(g) Protected under the law of war. The person or object in question
is expressly ``protected'' under one or more of the Geneva Conventions
of 1949 or, to the extent applicable, customary international law. The
term does not refer to all who enjoy some form of protection as a
consequence of compliance with international law, but those who are
expressly designated as such by the applicable law of armed conflict.
For example, persons who either are hors de combat or medical or
religious personnel taking no active part in hostilities are expressly
protected, but other civilians may not be.
(h) Should have known. The facts and circumstances were such that a
reasonable person in the Accused's position would have had the relevant
knowledge or awareness.
Sec. 11.6 Crimes and elements.
(a) Substantive offenses--war crimes. The following enumerated
offenses, if applicable, should be charged in separate counts. Elements
are drafted to
[[Page 35]]
reflect conduct of the perpetrator. Each element need not be
specifically charged.
(1) Willful killing of protected persons--(i) Elements. (A) The
accused killed one or more persons;
(B) The accused intended to kill such person or persons;
(C) Such person or persons were protected under the law of war;
(D) The accused knew or should have known of the factual
circumstances that established that protected status; and
(E) The killing took place in the context of and was associated with
armed conflict.
(ii) Comments. The intent required for this offense precludes its
applicability with regard to collateral damage or injury incident to a
lawful attack.
(2) Attacking civilians.--(i) Elements. (A) The accused engaged in
an attack;
(B) The object of the attack was a civilian population as such or
individual civilians not taking direct or active part in hostilities;
(C) The accused intended the civilian population as such or
individual civilians not taking direct or active part in hostilities to
be an object of the attack; and
(D) The attack took place in the context of and was associated with
armed conflict.
(ii) Comments. The intent required for this offense precludes its
applicability with regard to collateral damage or injury incident to a
lawful attack.
(3) Attacking civilian objects.--(i) Elements. (A) The accused
engaged in an attack;
(B) The object of the attack was civilian property, that is,
property that was not a military objective;
(C) The accused intended such property to be an object of the
attack;
(D) The accused knew or should have known that such property was not
a military objective; and
(E) The attack took place in the context of and was associated with
armed conflict.
(ii) Comments. The intent required for this offense precludes its
applicability with regard to collateral damage or injury incident to a
lawful attack.
(4) Attacking Protected Property--(i) Elements. (A) The accused
engaged in an attack;
(B) The object of the attack was protected property;
(C) The accused intended such property to be an object of the
attack;
(D) The accused knew or should have known of the factual
circumstances that established that protected status; and
(E) The attack took place in the context of and was associated with
armed conflict.
(ii) Comments. The intent required for this offense precludes its
applicability with regard to collateral damage or injury incident to a
lawful attack.
(5) Pillaging--(i) Elements. (A) The accused appropriated or seized
certain property;
(B) The accused intended to appropriate or seize such property for
private or personal use;
(C) The appropriation or seizure was without the consent of the
owner of the property or other person with authority to permit such
appropriation or seizure; and
(D) The appropriation or seizure took place in the context of and
was associated with armed conflict.
(ii) Comments. As indicated by the use of the term ``private or
personal use,'' legitimate captures or appropriations, or seizures
justified by military necessity, cannot constitute the crime of
pillaging.
(6) Denying quarter--(i) Elements. (A) The accused declared,
ordered, or otherwise indicated that there shall be no survivors or
surrender accepted;
(B) The accused thereby intended to threaten an adversary or to
conduct hostilities such that there would be no survivors or surrender
accepted;
(C) It was foreseeable that circumstances would be such that a
practicable and reasonable ability to accept surrender would exist;
(D) The accused was in a position of effective command or control
over the subordinate forces to which the declaration or order was
directed; and
(E) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. Paragraph (a)(6)(i)(C) of this section precludes this
offense
[[Page 36]]
from being interpreted as limiting the application of lawful means or
methods of warfare against enemy combatants. For example, a remotely
delivered attack cannot give rise to this offense.
(7) Taking Hostages--(i) Elements. (A) The accused seized, detained,
or otherwise held hostage one or more persons;
(B) The accused threatened to kill, injure, or continue to detain
such person or persons;
(C) The accused intended to compel a State, an international
organization, a natural or legal person, or a group of persons to act or
refrain from acting as an explicit or implicit condition for the safety
or release of such person or persons; and
(D) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. Consistent with Sec. 11.4(b), this offense cannot be
committed by lawfully detaining enemy combatants or other individuals as
authorized by the law of armed conflict.
(8) Employing poison or analogous weapons--(i) Elements. (A) The
accused employed a substance or a weapon that releases a substance as a
result of its employment;
(B) The substance was such that exposure thereto causes death or
serious damage to health in the ordinary course of events, through its
asphyxiating, poisonous, or bacteriological properties;
(C) The accused employed the substance or weapon with the intent of
utilizing such asphyxiating, poisonous, or bacteriological properties as
a method of warfare;
(D) The accused knew or should have known of the nature of the
substance or weapon; and
(E) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. (A) The ``death or serious damage to health''
required by paragraph (a)(8)(i)(B) of this section must be a direct
result of the substance's effect or effects on the human body (e.g.,
asphyxiation caused by the depletion of atmospheric oxygen secondary to
a chemical or other reaction would not give rise to this offense).
(B) The clause ``serious damage to health'' does not include
temporary incapacitation or sensory irritation.
(C) The use of the ``substance or weapon'' at issue must be
proscribed under the law of armed conflict. It may include chemical or
biological agents.
(D) The specific intent element for this offense precludes liability
for mere knowledge of potential collateral consequences (e.g., mere
knowledge of a secondary asphyxiating or toxic effect would be
insufficient to complete the offense).
(9) Using protected persons as shields--(i) Elements. (A) The
accused positioned, or took advantage of the location of, one or more
civilians or persons protected under the law of war;
(B) The accused intended to use the civilian or protected nature of
the person or persons to shield a military objective from attack or to
shield, favor, or impede military operations; and
(C) The conduct took place in the context of and was associated with
armed conflict.
(ii) [Reserved]
(10) Using protected property as shields--(i) Elements. (A) The
accused positioned, or took advantage of the location of, civilian
property or property protected under the law of war;
(B) The accused intended to shield a military objective from attack
or to shield, favor, or impede military operations; and
(C) The conduct took place in the context of and was associated with
armed conflict.
(ii) [Reserved]
(11) Torture--(i) Elements. (A) The accused inflicted severe
physical or mental pain or suffering upon one or more persons;
(B) The accused intended to inflict such severe physical or mental
pain or suffering;
(C) Such person or persons were in the custody or under the control
of the accused; and
(D) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. (A) Consistent with Sec. 11.4(b), this offense does
not include pain or suffering arising only from, inherent in, or
incidental to, lawfully imposed punishments. This offense does
[[Page 37]]
not include the incidental infliction of pain or suffering associated
with the legitimate conduct of hostilities.
(B) Severe ``mental pain or suffering'' is the prolonged mental harm
caused by or resulting from:
(1) The intentional infliction or threatened infliction of severe
physical pain or suffering;
(2) The administration or application, or threatened administration
or application, of mind-altering substances or other procedures
calculated to disrupt profoundly the senses or the personality;
(3) The threat of imminent death; or
(4) The threat that another person will imminently be subjected to
death, severe physical pain or suffering, or the administration or
application of mind-altering substances or other procedures calculated
to disrupt profoundly the senses or personality.
(C) ``Prolonged mental harm'' is a harm of some sustained duration,
though not necessarily permanent in nature, such as a clinically
identifiable mental disorder.
(D) Paragraph (a)(11)(i)(C) of this section does not require a
particular formal relationship between the accused and the victim.
Rather, it precludes prosecution for pain or suffering consequent to a
lawful military attack.
(12) Causing serious injury--(i) Elements. (A) The accused caused
serious injury to the body or health of one or more persons;
(B) The accused intended to inflict such serious injury;
(C) Such person or persons were in the custody or under the control
of the accused; and
(D) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. ``Serious injury'' includes fractured or dislocated
bones, deep cuts, torn members of the body, and serious damage to
internal organs.
(13) Mutilation or maiming--(i) Elements. (A) The accused subjected
one or more persons to mutilation, in particular by permanently
disfiguring the person or persons, or by permanently disabling or
removing an organ or appendage;
(B) The accused intended to subject such person or persons to such
mutilation;
(C) The conduct caused death or seriously damaged or endangered the
physical or mental health or appearance of such person or persons.
(D) The conduct was neither justified by the medical treatment of
the person or persons concerned nor carried out in the interest of such
person or persons;
(E) Such person or persons were in the custody or control of the
accused; and
(F) The conduct took place in the context of and was associated with
armed conflict.
(ii) [Reserved]
(14) Use of treachery or perfidy--(i) Elements. (A) The accused
invited the confidence or belief of one or more persons that they were
entitled to, or were obliged to accord, protection under the law of war;
(B) The accused intended to betray that confidence or belief;
(C) The accused killed, injured, or captured one or more persons;
(D) The accused made use of that confidence or belief in killing,
injuring, or capturing such person or persons; and
(E) The conduct took place in the context of and was associated with
armed conflict.
(ii) [Reserved]
(15) Improper use of flag of truce--(i) Elements. (A) The accused
used a flag of truce;
(B) The accused made such use in order to feign an intention to
negotiate, surrender, or otherwise to suspend hostilities when there was
no such intention on the part of the accused; and
(C) The conduct took place in the context of and was associated with
armed conflict.
(ii) [Reserved]
(16) Improper use of protective emblems--(i) Elements. (A) The
accused used a protective emblem recognized by the law of armed
conflict;
(B) The accused undertook such use for combatant purposes in a
manner prohibited by the law of armed conflict;
[[Page 38]]
(C) The accused knew or should have known of the prohibited nature
of such use; and
(D) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. ``Combatant purposes,'' as used in paragraph
(a)(16)(i)(B) of this section, means purposes directly related to
hostilities and does not include medical, religious, or similar
activities.
(17) Degrading treatment of a dead body--(i) Elements. (A) The
accused degraded or otherwise violated the dignity of the body of a dead
person;
(B) The accused intended to degrade or otherwise violate the dignity
of such body;
(C) The severity of the degradation or other violation was of such
degree as to be generally recognized as an outrage upon personal
dignity; and
(D) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. Paragraph (a)(17)(i)(B) of this section precludes
prosecution for actions justified by military necessity.
(18) Rape--(i) Elements. (A) The accused invaded the body of a
person by conduct resulting in penetration, however slight, of any part
of the body of the victim or of the accused with a sexual organ, or of
the anal or genital opening of the victim with any object or any other
part of the body;
(B) The invasion was committed by force, threat of force or
coercion, or was committed against a person incapable of giving consent;
and
(C) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. (A) Paragraph (a)(18)(i)(B) of this section
recognizes that consensual conduct does not give rise to this offense.
(B) It is understood that a person may be incapable of giving
consent if affected by natural, induced, or age-related incapacity.
(C) The concept of ``invasion'' is linked to the inherent
wrongfulness requirement for all offenses. In this case, for example, a
legitimate body cavity search could not give rise to this offense.
(D) The concept of ``invasion'' is gender neutral.
(b) Substantive offenses--other offenses triable by military
commission. The following enumerated offenses, if applicable, should be
charged in separate counts. Elements are drafted to reflect conduct of
the perpetrator. Each element need not be specifically charged.
(1) Hijacking or hazarding a vessel or aircraft--(i) Elements. (A)
The accused seized, exercised control over, or endangered the safe
navigation of a vessel or aircraft;
(B) The accused intended to so seize, exercise control over, or
endanger such vessel or aircraft; and
(C) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. A seizure, exercise of control, or endangerment
required by military necessity, or against a lawful military objective
undertaken by military forces of a State in the exercise of their
official duties, would not satisfy the wrongfulness requirement for this
crime.
(2) Terrorism--(i) Elements. (A) The accused killed or inflicted
bodily harm on one or more persons or destroyed property;
(B) The accused:
(1) Intended to kill or inflict bodily harm on one or more persons;
or
(2) Intentionally engaged in an act that is inherently dangerous to
another and evinces a wanton disregard of human life;
(C) The killing, harm or destruction was intended to intimidate or
coerce a civilian population, or to influence the policy of a government
by intimidation or coercion; and
(D) The killing, harm or destruction took place in the context of
and was associated with armed conflict.
(ii) Comments. (A) Paragraph (b)(2)(i)(A) of this section includes
the concept of causing death or bodily harm, even if indirectly.
(B) The requirement that the conduct be wrongful for this crime
necessitates that the conduct establishing this offense not constitute
an attack against a lawful military objective undertaken by military
forces of a State in the exercise of their official duties.
[[Page 39]]
(3) Murder by an unprivileged belligerent--(i) Elements. (A) The
accused killed one or more persons;
(B) The accused:
(1) Intended to kill or inflict great bodily harm on such person or
persons; or
(2) Intentionally engaged in an act that is inherently dangerous to
another and evinces a wanton disregard of human life;
(C) The accused did not enjoy combatant immunity; and
(D) The killing took place in the context of and was associated with
armed conflict.
(ii) Comments. (A) The term ``kill'' includes intentionally causing
death, whether directly or indirectly.
(B) Unlike the crimes of willful killing or attacking civilians, in
which the victim's status is a prerequisite to criminality, for this
offense the victim's status is immaterial. Even an attack on a soldier
would be a crime if the attacker did not enjoy ``belligerent privilege''
or ``combatant immunity.''
(4) Destruction of property by an unprivileged belligerent--(i)
Elements. (A) The accused destroyed property;
(B) The property belonged to another person, and the destruction was
without that person's consent;
(C) The accused intended to destroy such property;
(D) The accused did not enjoy combatant immunity; and
(E) The destruction took place in the context of and was associated
with armed conflict.
(ii) [Reserved]
(5) Aiding the enemy--(i) Elements. (A) The accused aided the enemy;
(B) The accused intended to aid the enemy; and
(C) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. (A) Means of accomplishing paragraph (b)(5)(i)(A) of
this section include, but are not limited to: providing arms,
ammunition, supplies, money, other items or services to the enemy;
harboring or protecting the enemy; or giving intelligence or other
information to the enemy.
(B) The requirement that conduct be wrongful for this crime
necessitates that the accused act without proper authority. For example,
furnishing enemy combatants detained during hostilities with subsistence
or quarters in accordance with applicable orders or policy is not aiding
the enemy.
(C) The requirement that conduct be wrongful for this crime may
necessitate that, in the case of a lawful belligerent, the accused owe
allegiance or some duty to the United States of America or to an ally or
coalition partner. For example, citizenship, resident alien status, or a
contractual relationship in or with the United States or an ally or
coalition partner is sufficient to satisfy this requirement so long as
the relationship existed at a time relevant to the offense alleged.
(6) Spying--(i) Elements. (A) The accused collected or attempted to
collect certain information;
(B) The accused intended to convey such information to the enemy;
(C) The accused, in collecting or attempting to collect the
information, was lurking or acting clandestinely, while acting under
false pretenses; and
(D) The conduct took place in the context of and was associated with
armed conflict.
(ii) Comments. (A) Members of a military organization not wearing a
disguise and others who carry out their missions openly are not spies,
if, though they may have resorted to concealment, they have not acted
under false pretenses.
(B) Related to the requirement that conduct be wrongful or without
justification or excuse in this case is the fact that, consistent with
the law of war, a lawful combatant who, after rejoining the armed force
to which that combatant belongs, is subsequently captured, can not be
punished for previous acts of espionage. His successful rejoining of his
armed force constitutes a defense.
(7) Perjury or false testimony--(i) Elements. (A) The accused
testified at a military commission, in proceedings ancillary to a
military commission, or provided information in a writing executed under
an oath to tell the truth or a declaration acknowledging the
applicability of penalties of perjury in connection with such
proceedings;
(B) Such testimony or information was material;
[[Page 40]]
(C) Such testimony or information was false; and
(D) The accused knew such testimony or information to be false.
(ii) [Reserved]
(8) Obstruction of justice related to military commissions--(i)
Elements. (A) The accused did an act;
(B) The accused intended to influence, impede, or otherwise obstruct
the due administration of justice; and
(C) The accused did such act in the case of a certain person against
whom the accused had reason to believe:
(1) There were or would be proceedings before a military commission;
or
(2) There was an ongoing investigation of offenses triable by
military commission.
(ii) [Reserved]
(c) Other forms of liability and related offenses. A person is
criminally liable as a principal for a completed substantive offense if
that person commits the offense (perpetrator), aids or abets the
commission of the offense, solicits commission of the offense, or is
otherwise responsible due to command responsibility. Such a person would
be charged as a principal even if another individual more directly
perpetrated the offense. In proving culpability, however, the below
listed definitions and elements are applicable. Additionally, if a
substantive offense was completed, a person may be criminally liable for
the separate offense of accessory after the fact. If the substantive
offense was not completed, a person may be criminally liable of the
lesser-included offense of attempt or the separate offense of
solicitation. Finally, regardless of whether the substantive offense was
completed, a person may be criminally liable of the separate offense of
conspiracy in addition to the substantive offense. Each element need not
be specifically charged.
(1) Aiding or abetting--(i) Elements. (A) The accused committed an
act that aided or abetted another person or entity in the commission of
a substantive offense triable by military commission;
(B) Such other person or entity committed or attempted to commit the
substantive offense; and
(C) The accused intended to or knew that the act would aid or abet
such other person or entity in the commission of the substantive offense
or an associated criminal purpose or enterprise.
(ii) Comments. (A) The term ``aided or abetted'' in paragraph
(c)(1)(i)(A) of this section includes: assisting, encouraging, advising,
instigating, counseling, ordering, or procuring another to commit a
substantive offense; assisting, encouraging, advising, counseling, or
ordering another in the commission of a substantive offense; and in any
other way facilitating the commission of a substantive offense.
(B) In some circumstances, inaction may render one liable as an
aider or abettor. If a person has a legal duty to prevent or thwart the
commission of a substantive offense, but does not do so, that person may
be considered to have aided or abetted the commission of the offense if
such noninterference is intended to and does operate as an aid or
encouragement to the actual perpetrator.
(C) An accused charged with aiding or abetting should be charged
with the related substantive offense as a principal.
(2) Solicitation--(i) Elements. (A) The accused solicited, ordered,
induced, or advised a certain person or persons to commit one or more
substantive offenses triable by military commission; and
(B) The accused intended that the offense actually be committed.
(ii) Comments. (A) The offense is complete when a solicitation is
made or advice is given with the specific wrongful intent to induce a
person or persons to commit any offense triable by military commission.
It is not necessary that the person or persons solicited, ordered,
induced, advised, or assisted agree to or act upon the solicitation or
advice. If the offense solicited is actually committed, however, the
accused is liable under the law of armed conflict for the substantive
offense. An accused should not be convicted of both solicitation and the
substantive offense solicited if criminal liability for the substantive
offense is based upon the solicitation.
(B) Solicitation may be by means other than speech or writing. Any
act or conduct that reasonably may be
[[Page 41]]
construed as a serious request, order, inducement, advice, or offer of
assistance to commit any offense triable by military commission may
constitute solicitation. It is not necessary that the accused act alone
in the solicitation, order, inducement, advising, or assistance. The
accused may act through other persons in committing this offense.
(C) An accused charged with solicitation of a completed substantive
offense should be charged for the substantive offense as a principal. An
accused charged with solicitation of an uncompleted offense should be
charged for the separate offense of solicitation. Solicitation is not a
lesser-included offense of the related substantive offense.
(3) Command/superior responsibility--perpetrating--(i) Elements. (A)
The accused had command and control, or effective authority and control,
over one or more subordinates;
(B) One or more of the accused's subordinates committed, attempted
to commit, conspired to commit, solicited to commit, or aided or abetted
the commission of one or more substantive offenses triable by military
commission;
(C) The accused either knew or should have known that the
subordinate or subordinates were committing, attempting to commit,
conspiring to commit, soliciting, or aiding or abetting such offense or
offenses; and
(D) The accused failed to take all necessary and reasonable measures
within his power to prevent or repress the commission of the offense or
offenses.
(ii) Comments. (A) The phrase ``effective authority and control'' in
paragraph (c)(3)(i)(A) of this section includes the concept of relative
authority over the subject matter or activities associated with the
perpetrator's conduct. This may be relevant to a civilian superior who
should not be held responsible for the behavior of subordinates involved
in activities that have no relationship to such superior's sphere of
authority. Subject matter authority need not be demonstrated for command
responsibility as it applies to a military commander.
(B) A commander or other military or civilian superior, not in
command, charged with failing adequately to prevent or repress a
substantive offense triable by military commission should be charged for
the related substantive offense as a principal.
(4) Command/superior responsibility--misprision--(i) Elements. (A)
The accused had command and control, or effective authority and control,
over one or more subordinates;
(B) One or more of the accused's subordinates had committed,
attempted to commit, conspired to commit, solicited to commit, or aided
or abetted the commission of one or more substantive offenses triable by
military commission;
(C) The accused knew or should have known that the subordinate or
subordinates had committed, attempted to commit, conspired to commit,
solicited, or aided or abetted such offense or offenses; and
(D) The accused failed to submit the matter to competent authorities
for investigation or prosecution as appropriate.
(ii) Comments. (A) The phrase, ``effective authority and control''
in paragraph (c)(4)(i)(A) of this section includes the concept of
relative authority over the subject matter or activities associated with
the perpetrator's conduct. This may be relevant to a civilian superior
who cannot be held responsible under this offense for the behavior of
subordinates involved in activities that have nothing to do with such
superior's sphere of authority.
(B) A commander or superior charged with failing to take appropriate
punitive or investigative action subsequent to the perpetration of a
substantive offense triable by military commission should not be charged
for the substantive offense as a principal. Such commander or superior
should be charged for the separate offense of failing to submit the
matter for investigation and/or prosecution as detailed in these
elements. This offense is not a lesser-included offense of the related
substantive offense.
(5) Accessory after the fact--(i) Elements. (A) The accused
received, comforted, or assisted a certain person;
(B) Such person had committed an offense triable by military
commission;
[[Page 42]]
(C) The accused knew that such person had committed such offense or
believed such person had committed a similar or closely related offense;
and
(D) The accused intended to hinder or prevent the apprehension,
trial, or punishment of such person.
(ii) Comments. Accessory after the fact should be charged separately
from the related substantive offense. It is not a lesser-included
offense of the related substantive offense.
(6) Conspiracy--(i) Elements. (A) The accused entered into an
agreement with one or more persons to commit one or more substantive
offenses triable by military commission or otherwise joined an
enterprise of persons who shared a common criminal purpose that
involved, at least in part, the commission or intended commission of one
or more substantive offenses triable by military commission;
(B) The accused knew the unlawful purpose of the agreement or the
common criminal purpose of the enterprise and joined in it willfully,
that is, with the intent to further the unlawful purpose; and
(C) One of the conspirators or enterprise members, during the
existence of the agreement or enterprise, knowingly committed an overt
act in order to accomplish some objective or purpose of the agreement or
enterprise.
(ii) Comments. (A) Two or more persons are required in order to have
a conspiracy. Knowledge of the identity of co-conspirators and their
particular connection with the agreement or enterprise need not be
established. A person may be guilty of conspiracy although incapable of
committing the intended offense. The joining of another conspirator
after the conspiracy has been established does not create a new
conspiracy or affect the status of the other conspirators. The agreement
or common criminal purpose in a conspiracy need not be in any particular
form or manifested in any formal words.
(B) The agreement or enterprise must, at least in part, involve the
commission or intended commission of one or more substantive offenses
triable by military commission. A single conspiracy may embrace multiple
criminal objectives. The agreement need not include knowledge that any
relevant offense is in fact ``triable by military commission.''
(C) The overt act must be done by one or more of the conspirators,
but not necessarily the accused, and it must be done to effectuate the
object of the conspiracy or in furtherance of the common criminal
purpose. The accused need not have entered the agreement or criminal
enterprise at the time of the overt act.
(D) The overt act need not be in itself criminal, but it must
advance the purpose of the conspiracy. It is not essential that any
substantive offense be committed.
(E) Each conspirator is liable for all offenses committed pursuant
to or in furtherance of the conspiracy by any of the co-conspirators,
after such conspirator has joined the conspiracy and while the
conspiracy continues and such conspirator remains a party to it.
(F) A party to the conspiracy who withdraws from or abandons the
agreement or enterprise before the commission of an overt act by any
conspirator is not guilty of conspiracy. An effective withdrawal or
abandonment must consist of affirmative conduct that is wholly
inconsistent with adherence to the unlawful agreement or common criminal
purpose and that shows that the party has severed all connection with
the conspiracy. A conspirator who effectively withdraws from or abandons
the conspiracy after the performance of an overt act by one of the
conspirators remains guilty of conspiracy and of any offenses committed
pursuant to the conspiracy up to the time of the withdrawal or
abandonment. The withdrawal of a conspirator from the conspiracy does
not affect the status of the remaining members.
(G) That the object of the conspiracy was impossible to effect is
not a defense to this offense.
(H) Conspiracy to commit an offense is a separate and distinct
offense from any offense committed pursuant to or in furtherance of the
conspiracy, and both the conspiracy and any related offense may be
charged, tried, and punished separately. Conspiracy should be charged
separately from the related substantive offense. It is not a lesser-
[[Page 43]]
included offense of the substantive offense.
(7) Attempt--(i) Elements. (A) The accused committed an act;
(B) The accused intended to commit one or more substantive offenses
triable by military commission;
(C) The act amounted to more than mere preparation; and
(D) The act apparently tended to effect the commission of the
intended offense.
(ii) Comments. (A) To constitute an attempt there must be a specific
intent to commit the offense accompanied by an act that tends to
accomplish the unlawful purpose. This intent need not involve knowledge
that the offense is in fact ``triable by military commission.''
(B) Preparation consists of devising or arranging means or measures
apparently necessary for the commission of the offense. The act need not
be the last act essential to the consummation of the offense. The
combination of specific intent to commit an offense, plus the commission
of an act apparently tending to further its accomplishment, constitutes
the offense of attempt. Failure to complete the offense, whatever the
cause, is not a defense.
(C) A person who purposely engages in conduct that would constitute
the offense if the attendant circumstances were as that person believed
them to be is guilty of an attempt.
(D) It is a defense to an attempt offense that the person
voluntarily and completely abandoned the intended offense, solely
because of the person's own sense that it was wrong, prior to the
completion of the substantive offense. The voluntary abandonment defense
is not allowed if the abandonment results, in whole or in part, from
other reasons, for example, the person feared detection or apprehension,
decided to await a better opportunity for success, was unable to
complete the crime, or encountered unanticipated difficulties or
unexpected resistance.
(E) Attempt is a lesser-included offense of any substantive offense
triable by military commission and need not be charged separately. An
accused may be charged with attempt without being charged with the
substantive offense.
PART 12_RESPONSIBILITIES OF THE CHIEF PROSECUTOR, PROSECUTORS, AND ASSISTANT
PROSECUTORS--Table of Contents
Sec.
12.1 Purpose.
12.2 Authority.
12.3 Office of the Chief Prosecutor.
12.4 Duties and responsibilities of the prosecution.
12.5 Policies.
Authority: 10 U.S.C. 113(d) and 140(b).
Source: 68 FR 39388, July 1, 2003, unless otherwise noted.
Sec. 12.1 Purpose.
This part establishes the responsibilities of the Office of the
Chief Prosecutor and components thereof.
Sec. 12.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' (3 CFR, 2001
comp., p. 918, 66 FR 57833) and 10 U.S.C. 113(d) and 140(b). The
provisions of 32 CFR part 10 are applicable to this part.
Sec. 12.3 Office of the Chief Prosecutor.
(a) General. The Office of the Chief Prosecutor shall be a component
of the Office of Military Commissions and shall be comprised of the
Chief Prosecutor, Prosecutors, and other persons properly under the
supervision of the Chief Prosecutor.
(b) Chief Prosecutor. (1) The Chief Prosecutor shall be a judge
advocate of any United States armed force and shall be designated by the
General Counsel of the Department of Defense.
(2) The Chief Prosecutor shall report directly to the Deputy General
Counsel (Legal Counsel) of the Department of Defense.
(3) The Chief Prosecutor shall have authority to subpoena any
individual to appear as a witness, to testify, or to produce any
evidence in a case referred to military commissions or in a criminal
investigation associated with a case that may be referred to a military
commission.
(4) The Chief Prosecutor shall direct the overall prosecution effort
pursuant
[[Page 44]]
to 32 CFR part 9, and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism,'' ensuring proper supervision and management of all personnel
and resources assigned to the Office of the Chief Prosecutor.
(5) The Chief Prosecutor shall ensure that all personnel assigned to
the Office of the Chief Prosecutor review, and attest that they
understand and will comply with, 32 CFR part 9, and Military Order of
November 13, 2001,'' Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism,'' and all Supplementary
Regulations and Instructions issued in accordance therewith.
(6) The Chief Prosecutor shall inform the Deputy General Counsel
(Legal Counsel) of all requirements for personnel, office space,
equipment, and supplies to ensure the successful functioning and mission
accomplishment of the Office of the Chief Prosecutor.
(7) The Chief Prosecutor shall supervise all Prosecutors and other
personnel assigned to the Office of the Chief Prosecutor including any
special trial counsel of the Department of Justice who may be made
available by the Attorney General of the United States.
(8) The Chief Prosecutor, or his designee, shall fulfill applicable
performance evaluation requirements associated with Prosecutors and
other personnel properly under the supervision of the Office of the
Chief Prosecutor.
(9) The Chief Prosecutor shall detail a Prosecutor and, as
appropriate, one or more Assistant Prosecutors to perform the duties of
the prosecution as set forth in 32 CFR 9.4(b)(2). The Chief Prosecutor
may detail himself to perform such duties.
(10) The Chief Prosecutor shall ensure that all Prosecutors and
Assistant Prosecutors faithfully represent the United States in
discharging their prosecutorial duties before military commissions
conducted pursuant to 32 CFR part 9, and Military Order of November 13,
2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism.''
(11) The Chief Prosecutor shall ensure that all Prosecutors and
Assistant Prosecutors have taken an oath to perform their duties
faithfully.
(12) The Chief Prosecutor shall ensure that all personnel properly
under the supervision of the Office of the Chief Prosecutor possess the
appropriate security clearances.
(c) Prosecutors. (1) Prosecutors shall be detailed by the Chief
Prosecutor and may be either judge advocates of any United States armed
force or special trial counsel of the Department of Justice who may be
made available by the Attorney General of the United States.
(2) Prosecutors shall represent the United States as Prosecutors or
Assistant Prosecutors as directed by the Chief Prosecutor and in
accordance with 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism.''
(3) Prosecutors shall fulfill all responsibilities detailed in 32
CFR part 9, and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism,'' those set forth in this part, and those assigned by the
Chief Prosecutor.
(4) Prosecutors shall ensure that all court reporters, security
personnel, and interpreters who are to perform duties in relation to a
military commission proceeding have taken an oath to perform their
duties faithfully. As directed by the Presiding Officer, Prosecutors
also shall administer appropriate oaths to witnesses during military
commission proceedings.
Sec. 12.4 Duties and responsibilities of the prosecution.
(a) Regular duties. The Prosecution shall perform all duties
specified or implied in 32 CFR part 9 as responsibilities of the
Prosecution.
(b) Administrative duties. The Prosecution shall, as directed by the
Presiding Officer or the Appointing Authority, prepare any documentation
necessary to facilitate the conduct of military commissions proceedings.
The Prosecution shall, as directed by the Deputy General Counsel (Legal
Counsel), prepare a trial guide to provide a standardized administrative
plan for the
[[Page 45]]
conduct of military commission proceedings. Unless directed otherwise by
the Appointing Authority, the Presiding Officer may, in his discretion,
depart from this guide as appropriate.
(c) Special duties. The Prosecution shall perform all other
functions, consistent with 32 CFR part 9, and Military Order of November
13, 2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in
the War Against Terrorism,'' as may be directed by the Appointing
Authority or the General Counsel of the Department of Defense.
Sec. 12.5 Policies.
(a) Prohibition on Prosecutors serving as Defense Counsel. Judge
advocates assigned to the Office of the Chief Prosecutor shall be deemed
unavailable for service as Defense Counsel under 32 CFR 9.4(c)(3)(i).
(b) Prohibition on certain disclosures. All Prosecutors must
strictly comply with 32 CFR 9.6(d)(5) and 9.9 to ensure they do not
improperly disclose classified information, national security
information, or state secrets to any person not specifically authorized
to receive such information.
(c) Statements to the media. Consistent with DoD Directive 5122.5
\1\, the Assistant Secretary of Defense for Public Affairs shall serve
as the sole release authority for DoD information and audiovisual
materials regarding military commissions. Personnel assigned to the
Office of the Chief Prosecutor may communicate with news media
representatives regarding cases and other matters related to military
commissions only when approved by the Appointing Authority or the
General Counsel of the Department of Defense.
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PART 13_RESPONSIBILITIES OF THE CHIEF DEFENSE COUNSEL, DETAILED DEFENSE
COUNSEL, AND CIVILIAN DEFENSE COUNSEL--Table of Contents
Sec.
13.1 Purpose.
13.2 Authority.
13.3 Office of the Chief Defense Counsel.
13.4 Duties and responsibilities of the defense.
13.5 Policies.
Authority: 10 U.S.C. 113(d) and 140(b).
Source: 68 FR 39389, July 1, 2003, unless otherwise noted.
Sec. 13.1 Purpose.
This part establishes the responsibilities of the Office of Chief
Defense Counsel and components thereof.
Sec. 13.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' (3 CFR, 2001
comp., p. 918, 66 FR 57833) and 10 U.S.C. 113(d) and 140(b). The
provisions of 32 CFR part 10 are applicable to this part.
Sec. 13.3 Office of the Chief Defense Counsel.
(a) General. The Office of the Chief Defense Counsel shall be a
component of the Office of Military Commissions and shall be comprised
of the Chief Defense Counsel, Defense Counsel, and other such persons
properly under the supervision of the Chief Defense Counsel.
(b) Chief Defense Counsel. (1) The Chief Defense Counsel shall be a
judge advocate of any United States armed force and shall be designated
by the General Counsel of the Department of Defense.
(2) The Chief Defense Counsel shall report directly to the Deputy
General Counsel (Personnel and Health Policy) of the Department of
Defense.
(3) The Chief Defense Counsel shall supervise all defense activities
and the efforts of Detailed Defense Counsel and other office personnel
and resources pursuant to 32 CFR part 9, and Military Order of November
13, 2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in
the War Against Terrorism,'' ensuring proper supervision and management
of all personnel and resources assigned to the Office of the Chief
Defense Counsel and facilitating the proper representation of all
Accused referred to trial before a military commission appointed
pursuant to 32
[[Page 46]]
CFR part 9, and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism.''
(4) The Chief Defense Counsel shall ensure that all personnel
assigned to the Office of the Chief Defense Counsel review, and attest
that they understand and will comply with, 32 CFR part 9, and Military
Order of November 13, 2001, ``Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism,'' and all Supplementary
Regulations and Instructions issued in accordance therewith.
Furthermore, the Chief Defense Counsel shall regulate the conduct of
Detailed Defense Counsel as deemed necessary, consistent with 32 CFR
part 9, and Military Order of November 13, 2001, ``Detention, Treatment,
and Trial of Certain Non-Citizens in the War Against Terrorism,'' and
subordinate instructions and regulations, and specifically shall ensure
that Detailed Defense Counsel have been directed to conduct their
activities consistent with applicable prescriptions and proscriptions
specified in Section II of the Affidavit And Agreement By Civilian
Defense Counsel at Appendix B to 32 CFR part 14.
(5) The Chief Defense Counsel shall inform the Deputy General
Counsel (Personnel and Health Policy) of the Department of Defense of
all requirements for personnel, office space, equipment, and supplies to
ensure the successful functioning and mission accomplishment of the
Office of the Chief Defense Counsel.
(6) The Chief Defense Counsel shall supervise all Defense Counsel
and other personnel assigned to the Office of the Chief Defense Counsel.
(7) The Chief Defense Counsel, or his designee, shall fulfill
applicable performance evaluation requirements associated with Defense
Counsel and other personnel properly under the supervision of the Chief
Defense Counsel.
(8) The Chief Defense Counsel shall detail a judge advocate of any
United States armed force to perform the duties of the Detailed Defense
Counsel as set forth in 32 CFR 9.4(c)(2) and shall detail or employ any
other personnel as directed by the Appointing Authority or the Presiding
Officer in a particular case. The Chief Defense Counsel may not detail
himself to perform the duties of Detailed Defense Counsel, nor does he
form an attorney-client relationship with accused persons or incur any
concomitant confidentiality obligations.
(i) The Chief Defense Counsel may, when appropriate, detail an
additional judge advocate as Assistant Detailed Defense Counsel to
assist in performing the duties of the Detailed Defense Counsel.
(ii) The Chief Defense Counsel may structure the Office of the Chief
Defense Counsel so as to include subordinate supervising attorneys who
may incur confidentiality obligations in the context of fulfilling their
supervisory responsibilities with regard to Detailed Defense Counsel.
(9) The Chief Defense Counsel shall take appropriate measures to
preclude Defense Counsel conflicts of interest arising from the
representation of Accused before military commissions. The Chief Defense
Counsel shall be provided sufficient information (potentially including
protected information) to fulfill this responsibility.
(10) The Chief Defense Counsel shall take appropriate measures to
ensure that each Detailed Defense Counsel is capable of zealous
representation, unencumbered by any conflict of interest. In this
regard, the Chief Defense Counsel shall monitor the activities of all
Defense Counsel (Detailed and Civilian) and take appropriate measures to
ensure that Defense Counsel do not enter into agreements with other
Accused or Defense Counsel that might cause them or the Accused they
represent to incur an obligation of confidentiality with such other
Accused or Defense Counsel or to effect some other impediment to
representation.
(11) The Chief Defense Counsel shall ensure that an Accused tried
before a military commission pursuant to 32 CFR part 9, and Military
Order of November 13, 2001, ``Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism,'' is represented at all
relevant times by Detailed Defense Counsel.
(12) The Chief Defense Counsel shall administer all requests for
replacement Detailed Defense Counsel requested in
[[Page 47]]
accordance with 32 CFR 9.4(c)(3). He shall determine the availability of
such counsel in accordance with this part.
(13) The Chief Defense Counsel shall administer the Civilian Defense
Counsel pool, screening all requests for pre-qualification and ad hoc
qualification, making qualification determinations and recommendations
in accordance with 32 CFR part 9, this part, and 32 CFR part 14, and
ensuring appropriate notification to an Accused of civilian attorneys
available to represent Accused before a military commission.
(14) The Chief Defense Counsel shall ensure that all Detailed
Defense Counsel and Civilian Defense Counsel who are to perform duties
in relation to a military commission have taken an oath to perform their
duties faithfully.
(15) The Chief Defense Counsel shall ensure that all personnel
properly under the supervision of the Office of the Chief Defense
Counsel possess the appropriate security clearances.
(c) Detailed Defense Counsel. (1) Detailed Defense Counsel shall be
judge advocates of any United States armed force.
(2) Detailed Defense Counsel shall represent the Accused before
military commissions when detailed in accordance with 32 CFR part 9, and
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism.'' In this regard
Detailed Defense Counsel shall: defend the Accused to whom detailed
zealously within the bounds of the law and without regard to personal
opinion as to guilt; represent the interests of the Accused in any
review process as provided by 32 CFR part 9; and comply with the
procedures accorded the Accused pursuant to 32 CFR 9.5 and 9.6. Detailed
Defense Counsel shall so serve notwithstanding any intention expressed
by the Accused to represent himself.
(3) Detailed Defense Counsel shall have primary responsibility to
prevent conflicts of interest related to the handling of the cases to
which detailed.
(4) Detailed Defense Counsel shall fulfill all responsibilities
detailed in 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' those set forth in this part, and those assigned by
the Chief Defense Counsel.
(d) Selected Detailed Defense Counsel. (1) The Accused may select a
judge advocate of any United States armed force to replace the Accused's
Detailed Defense Counsel, provided that judge advocate has been
determined to be available by the Chief Defense Counsel in consultation
with the Judge Advocate General of that judge advocate's military
department.
(2) A judge advocate shall be determined not to be available if
assigned duties: as a general or flag officer; as a military judge; as a
prosecutor in the Office of Military Commissions; as a judge advocate
assigned to the Department of Defense Criminal Investigation Task Force
or Joint Task Force Guantanamo; as a principal legal advisor to a
command, organization, or agency; as an instructor or student at a
service school, academy, college or university; or in any other capacity
that the Judge Advocate General of the Military Department concerned may
determine not to be available because of the nature or responsibilities
of their assignments, exigent circumstances, military necessity, or
other appropriate reasons.
(3) Consistent with 32 CFR 9.6(b), the selection and replacement of
new Detailed Defense Counsel shall not unreasonably delay military
commission proceedings.
(4) Unless otherwise directed by the Appointing Authority or the
General Counsel of the Department of Defense, the Chief Defense Counsel
will, after selection of a new Detailed Defense Counsel, relieve the
original Detailed Defense Counsel of all duties with respect to that
case.
(e) Qualified Civilian Defense Counsel. (1) The Accused may, at no
expense to the United States, retain the services of a civilian attorney
of the Accused's own choosing to assist in the conduct of his defense
before a military commission, provided that the civilian attorney
retained has been determined to be qualified pursuant to 32 CFR
9.4(c)(3)(ii).
(2) Consistent with 32 CFR 9.6(b), the retention of Civilian Defense
Counsel shall not unreasonably delay military commission proceedings.
[[Page 48]]
(3) Representation by Civilian Defense Counsel will not relieve
Detailed Defense Counsel of the duties specified in 32 CFR 9.4(c)(2).
(4) Neither qualification of a Civilian Defense Counsel for
membership in the pool of available Civilian Defense Counsel nor the
entry of appearance in a specific case guarantees that counsel's
presence at closed military commission proceedings or access to
information protected under 32 CFR 9.6(d)(5).
(5) The Chief Defense Counsel shall monitor the conduct of all
qualified Civilian Defense Counsel for compliance with all rules,
regulations, and instructions governing military commissions. The Chief
Defense Counsel will report all instances of noncompliance with the
rules, regulations, and instructions governing military commissions to
the Appointing Authority and to the General Counsel of the Department of
Defense with a recommendation as to any appropriate action consistent
with 32 CFR part 9 and this part.
Sec. 13.4 Duties and responsibilities of the defense.
(a) Regular duties. The Defense shall perform all duties specified
or implied in 32 CFR part 9 as responsibilities of the Defense.
(b) Special duties. The Office of the Chief Defense Counsel shall
perform such other functions, consistent with 32 CFR part 9, and
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' and the mission
of the Office of the Chief Defense Counsel, as may be directed by the
Appointing Authority or the General Counsel of the Department of
Defense.
Sec. 13.5 Policies.
(a) Prohibition on certain agreements. No Defense Counsel may enter
into agreements with any detainee other than his client, or such
detainee's Defense Counsel, that might cause him or the client he
represents to incur an obligation of confidentiality with such other
detainee or Defense Counsel or to effect some other impediment to
representation.
(b) Prohibition on certain disclosures. All Defense Counsel must
strictly comply with 32 CFR 9.6(d)(5) and 9.9 to ensure they do not
improperly disclose classified information, national security
information, or state secrets to an Accused or potential Accused or to
any other person not specifically authorized to receive such
information.
(c) Statements to the media. Consistent with DoD Directive 5122.5
\1\, the Assistant Secretary of Defense for Public Affairs shall serve
as the sole release authority for DoD information and audiovisual
materials regarding military commissions. Personnel assigned to the
Office of the Chief Defense Counsel, as well as all members of the
Civilian Defense Counsel pool and associated personnel may communicate
with news media representatives regarding cases and other matters
related to military commissions only when approved by the Appointing
Authority or the General Counsel of the Department of Defense.
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PART 14_QUALIFICATION OF CIVILIAN DEFENSE COUNSEL--Table of Contents
Sec.
14.1 Purpose.
14.2 Authority.
14.3 Policies and procedures.
Appendix A to Part 14--United States of America Authorization for
Release of Information
Appendix B to Part 14--Affidavit and Agreement by Civilian Defense
Counsel
Authority: 10 U.S.C. 113(d) and 140(b).
Source: 68 FR 39392, July 1, 2003, unless otherwise noted.
Sec. 14.1 Purpose.
This part establishes policies and procedures for the creation and
management of the pool of qualified Civilian Defense Counsel authorized
in 32 CFR 9.4 (c)(3)(ii) in accordance with Military Order of November
13, 2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in
the War Against Terrorism,'' (3 CFR 2001 Comp., 918, 66 FR 57833).
[[Page 49]]
Sec. 14.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' and 10 U.S.C.
113(d) and 140(b). The provisions of 32 CFR part 10 are applicable to
this part.
Sec. 14.3 Policies and procedures.
(a) Application procedures. (1) Civilian attorneys may be
prequalified as members of the pool of attorneys eligible to represent
Accused before military commissions at no expense to the United States
if, at the time of application, they meet the eligibility criteria set
forth in 32 CFR 9.4(c)(3)(ii) as further detailed in this part, or they
may be qualified on an ad hoc basis after being requested by an Accused.
In both cases, qualification results in membership in the pool of
available Civilian Defense Counsel.
(2) An attorney seeking qualification as a member of the pool of
available Civilian Defense Counsel shall submit an application, by
letter, to: Office of the General Counsel, Department of Defense, (Attn:
Chief Defense Counsel, Office of Military Commissions), 1600 Defense
Pentagon, Washington, DC 20301-1600. Applications will be comprised of
the letter requesting qualification for membership, together with the
following documents that demonstrate satisfaction of the criteria set
forth in 32 CFR 9.4(c)(3)(ii):
(i) Civilian Defense Counsel shall be United States citizens (32 CFR
9.4(c)(3)(ii)(A)). Applicants will provide proof of citizenship (e.g.,
certified true copy of passport, birth certificate, or certificate of
naturalization).
(ii) Civilian Defense Counsel shall be admitted to the practice of
law in a State, district, territory or possession of the United States,
or before a Federal court (32 CFR 9.4(c)(3)(ii)(B)). Applicants will
submit an official certificate showing that the applicant is an active
member in good standing with the bar of a qualifying jurisdiction. The
certificate must be dated within three months of the date of the Chief
Defense Counsel's receipt of the application.
(iii) Civilian Defense Counsel shall not have been the subject of
any sanction or disciplinary action by any court, bar, or other
competent governmental authority for relevant misconduct (32 CFR
9.4(c)(2)(iii)).
(A) An applicant shall submit a statement detailing all sanctions or
disciplinary actions, pending or final, to which he has been subject,
whether by a court, bar or other competent governmental authority, for
misconduct of any kind. The statement shall identify the jurisdiction or
authority that imposed the sanction or disciplinary action, together
with any explanation deemed appropriate by the applicant. Additionally,
the statement shall identify and explain any formal challenge to the
attorney's fitness to practice law, regardless of the outcome of any
subsequent proceedings. In the event that no sanction, disciplinary
action or challenge has been imposed on or made against an applicant,
the statement shall so state. Further, the applicant's statement shall
identify each jurisdiction in which he has been admitted or to which he
has applied to practice law, regardless of whether the applicant
maintains a current active license in that jurisdiction, together with
any dates of admission to or rejection by each such jurisdiction and, if
no longer active, the date of and basis for inactivation. The
information shall be submitted either in the form of a sworn notarized
statement or as a declaration under penalty of perjury of the laws of
the United States. The sworn statement or declaration must be executed
and dated within three months of the date of the Chief Defense Counsel's
receipt of the application.
(B) Further, applicants shall submit a properly executed
Authorization for Release of Information (Appendix A to this part),
authorizing the Chief Defense Counsel or his designee to obtain
information relevant to qualification of the applicant as a member of
the Civilian Defense Counsel pool from each jurisdiction in which the
applicant has been admitted or to which he has applied to practice law.
(iv) Civilian Defense Counsel shall be determined to be eligible for
access to information classified at the level SECRET or higher under the
authority of
[[Page 50]]
and in accordance with the procedures described in Department of Defense
Regulation, DoD 5200.2-R, ``Personnel Security Program.'' \1\ (32 CFR
9.4(c)(2)(iv)
(A) Civilian Defense Counsel applicants who possess a valid current
security clearance of SECRET or higher shall provide, in writing, the
date of their background investigation, the date such clearance was
granted, the level of the clearance, and the adjudicating authority.
(B) Civilian Defense Counsel applicants who do not possess a valid
current security clearance of SECRET or higher shall state in writing
their willingness to submit to a background investigation in accordance
with DoD 5200.2-R and to pay any actual costs associated with the
processing of the same. The security clearance application,
investigation, and adjudication process will not be initiated until the
applicant has submitted an application that otherwise fully complies
with this part and the Chief Defense Counsel has determined that the
applicant would otherwise be qualified for membership in the Civilian
Defense Counsel pool. Favorable adjudication of the applicant's
personnel security investigation must be completed before an applicant
will be qualified for membership in the pool of Civilian Defense
Counsel. The Chief Defense Counsel may, at his discretion, withhold
qualification and wait to initiate the security clearance process until
such time as the Civilian Defense Counsel's services are likely to be
sought.
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\1\ Available at http://www.dtic.mil/whs/directives.
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(v) Civilian Defense Counsel shall have signed a written agreement
to comply with all applicable regulations or instructions for counsel,
including any rules of court for conduct during the course of
proceedings (32 CFR 9.4(c)(2)(v)). This requirement shall be satisfied
by the execution of the Affidavit And Agreement By Civilian Defense
Counsel at Appendix B to this part. The Affidavit And Agreement By
Civilian Defense Counsel shall be executed and agreed to without change,
(i.e., no omissions, additions or substitutions). Proper execution shall
require the notarized signature of the applicant. The Affidavit And
Agreement By Civilian Defense Counsel shall be dated within three months
of the date of the Chief Defense Counsel's receipt of the application.
(3) Applications mailed in a franked U.S. Government envelope or
received through U.S. Government distribution will not be considered.
Telefaxed or electronic mail application materials will not be accepted.
Failure to provide all of the requisite information and documentation
may result in rejection of the application. A false statement in any
part of the application may preclude qualification and/or render the
applicant liable for disciplinary or criminal sanction, including under
18 U.S.C. 1001.
(b) Application review. (1) The Chief Defense Counsel or his
designee shall review all Civilian Defense Counsel pool applications for
compliance with 32 CFR part 9 and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' and with this part.
(2) The Chief Defense Counsel shall consider all applicants for
qualification as members of the Civilian Defense Counsel pool without
regard to race, religion, color, sex, age, national origin, or other
non-disqualifying physical or mental disability.
(3) The Chief Defense Counsel may reject any Civilian Defense
Counsel application that is incomplete or otherwise fails to comply with
32 CFR part 9 and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism,'' or with this part.
(4) Subject to review by the General Counsel of the Department of
Defense, the Chief Defense Counsel shall determine the number of
qualified attorneys that shall constitute the pool of available Civilian
Defense Counsel. Similarly, subject to review by the General Counsel of
the Department of Defense, the Chief Defense Counsel shall determine the
qualification of applicants for membership in such pool. This shall
include determinations as to whether any sanction, disciplinary action,
or
[[Page 51]]
challenge is related to relevant misconduct that would disqualify the
Civilian Defense Counsel applicant.
(5) The Chief Defense Counsel's determination as to each applicant's
qualification for membership in the pool of qualified Civilian Defense
Counsel shall be deemed effective as of the date of the Chief Defense
Counsel's written notification publishing such determination to the
applicant. Subsequent to this notification, the retention of qualified
Civilian Defense Counsel is effected upon written entry of appearance,
communicated to the military commission through the Chief Defense
Counsel.
(6) The Chief Defense Counsel may reconsider his determination as to
an individual's qualification as a member of the Civilian Defense
Counsel pool on the basis of subsequently discovered information
indicating material nondisclosure or misrepresentation in the
application, or material violation of obligations of the Civilian
Defense Counsel, or other good cause, or the matter may be referred to
the Appointing Authority or the General Counsel of the Department of
Defense, who may revoke or suspend the qualification of any member of
the Civilian Defense Counsel pool.
Appendix A to Part 14--United States of America Authorization for
Release of Information
United States of America
Authorization for Release of Information
(Carefully read this authorization to release information about you,
then sign and date it in ink.)
I authorize the Chief Defense Counsel, Office of Military
Commissions, Department of Defense, his designee or other duly
authorized representative of the Department of Defense who may be
charged with assessing or determining my qualification for membership in
the pool of Civilian Defense Counsel available to represent Accused
before military commissions, to obtain any information from any court,
the bar of any State, locality, district, territory or possession of the
United States, or from any other governmental authority.
This information may include, but is not limited to, information
relating to: Any application for a security clearance; my admission or
application for admission to practice law in any jurisdiction, including
action by the jurisdiction upon such application, together with my
current status with regard to the practice of law in such jurisdiction;
any sanction or disciplinary action to which I have been subject for
misconduct of any kind; and any formal challenge to my fitness to
practice law, regardless of the outcome of subsequent proceedings.
I authorize custodians of such records or information and other
sources of information pertaining to me to release such at the request
of the officials named above, regardless of any previous agreement to
the contrary.
I understand that for certain custodians or sources of information a
separate specific release may be required and that I may be contacted
for the purposes of executing such at a later date.
I understand that the records or information released by custodians
and other sources of information are for official use by the Department
of Defense, only for the purposes provided herein, and that they may be
redisclosed by the Department of Defense only as authorized by law.
Copies of this authorization that show my signature are as valid as
the original signed by me. This authorization is valid for five (5)
years from the date signed or upon termination of my affiliation with
the Department of Defense, whichever is later.
________________________________________________________________________
Signature (sign in ink) SSN
________________________________________________________________________
Date
Appendix B to Part 14--Affidavit and Agreement by Civilian Defense
Counsel
Affidavit and Agreement by Civilian Defense Counsel
Pursuant to Section 4(C)(3)(b) of Department of Defense Military
Commission Order No. 1, ``Procedures for Trials by Military Commissions
of Certain Non-United States Citizens in the War Against Terrorism,''
dated March 21, 2002 (``MCO No. 1''), Military Commission Instructions
No. 4, ``Responsibilities of the Chief Defense Counsel, Detailed Defense
Counsel, and Civilian Defense Counsel'' (``MCI No. 4'') and No. 5,
``Qualification of Civilian Defense Counsel'' (``MCI No. 5''), and in
accordance with the President's Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' 66 FR 57833 (Nov. 16, 2001) (``President's Military
Order''), I [Name of Civilian Attorney], make this Affidavit and
Agreement for the purposes of applying for qualification as a member of
the pool of Civilian Defense Counsel available to represent Accused
before military commissions and serving in that capacity.
[[Page 52]]
I. Oaths or Affirmations. I swear or affirm that the following
information is true to the best of my knowledge and belief:
A. I have read and understand the President's Military Order, MCO
No. 1, MCI No. 4, MCI No. 5, and all other Military Commission Orders
and Instructions concerning the rules, regulations and instructions
applicable to trial by military commissions. I will read all future
Orders and Instructions applicable to trials by military commissions.
B. I am aware that my qualification as a Civilian Defense Counsel
does not guarantee my presence at closed military commission proceedings
or guarantee my access to any information protected under Section
6(D)(5) or Section 9 of MCO No. 1.
II. Agreements. I hereby agree to comply with all applicable
regulations and instructions for counsel, including any rules of court
for conduct during the course of proceedings, and specifically agree,
without limitation, to the following:
A. I will notify the Chief Defense Counsel and, as applicable, the
relevant Presiding Officer immediately if, after the execution of this
Affidavit and Agreement but prior to the conclusion of proceedings
(defined as the review and final decision of the President or, if
designated, the Secretary of Defense), if there is any change in any of
the information provided in my application, including this Affidavit and
Agreement, for qualification as member of the Civilian Defense Counsel
pool. I understand that such notification shall be in writing and shall
set forth the substantive nature of the changed information.
B. I will be well-prepared and will conduct the defense zealously,
representing the Accused throughout the military commission process,
from the inception of my representation through the completion of any
post trial proceedings as detailed in Section 6(H) of MCO No. 1. I will
ensure that these proceedings are my primary duty. I will not seek to
delay or to continue the proceedings for reasons relating to matters
that arise in the course of my law practice or other professional or
personal activities that are not related to military commission
proceedings.
C. The Defense Team shall consist entirely of myself, Detailed
Defense Counsel, and other personnel provided by the Chief Defense
Counsel, the Presiding Officer, or the Appointing Authority. I will make
no claim against the U.S. Government for any fees or costs associated
with my conduct of the defense or related activities or efforts.
D. Recognizing that my representation does not relieve Detailed
Defense Counsel of duties specified in Section 4(C)(2) of MCO No. 1, I
will work cooperatively with such counsel to ensure coordination of
efforts and to ensure such counsel is capable of conducting the defense
independently if necessary.
E. During the pendency of the proceedings, unless I obtain approval
in advance from the Presiding Officer to do otherwise, I will comply
with the following restrictions on my travel and communications:
1. I will not travel or transmit documents from the site of the
proceedings without the approval of the Appointing Authority or the
Presiding Officer. The Defense Team and I will otherwise perform all of
our work relating to the proceedings, including any electronic or other
research, at the site of the proceedings (except that this shall not
apply during post-trial proceedings detailed in Section 6(H) of MCO No.
1).
2. I will not discuss or otherwise communicate or share documents or
information about the case with anyone except persons who have been
designated as members of the Defense Team in accordance with this
Affidavit and Agreement and other applicable rules, regulations and
instructions.
F. At no time, to include any period subsequent to the conclusion of
the proceedings, will I make any public or private statements regarding
any closed sessions of the proceedings or any classified information or
material, or document or material constituting protected information
under MCO No. 1.
G. I understand and agree to comply with all rules, regulations and
instructions governing the handling of classified information and
material. Furthermore, no document or material constituting protected
information under MCO No. 1, regardless of its classification level, may
leave the site of the proceedings.
H. I understand that there may be reasonable restrictions on the
time and duration of contact I may have with my client, as imposed by
the Appointing Authority, the Presiding Officer, detention authorities,
or regulation.
I. I understand that my communications with my client, even if
traditionally covered by the attorney-client privilege, may be subject
to monitoring or review by government officials, using any available
means, for security and intelligence purposes. I understand that any
such monitoring will only take place in limited circumstances when
approved by proper authority, and that any evidence or information
derived from such communications will not be used in proceedings against
the Accused who made or received the relevant communication. I further
understand that communications are not protected if they would
facilitate criminal acts or a conspiracy to commit criminal acts, or if
those communications are not related to the seeking or providing of
legal advice.
J. I agree that I shall reveal to the Chief Defense Counsel and any
other appropriate authorities, information relating to the
representation of my client to the extent that I reasonably believe
necessary to prevent the
[[Page 53]]
commission of a future criminal act that I believe is likely to result
in death or substantial bodily harm, or significant impairment of
national security.
K. I understand and agree that nothing in this Affidavit and
Agreement creates any substantive, procedural, or other rights for me as
counsel or for my client(s).
/s/____________________________________________________________________
Print Name:____________________________________________________________
Address:_______________________________________________________________
Date:__________________________________________________________________
State of )
County of )
Sworn to and subscribed before me, by ----------, this ---- day of
--------, 20----.
Notary
My commission expires:_________________________________________________
PART 15_REPORTING RELATIONSHIPS FOR MILITARY COMMISSION PERSONNEL--Table of
Contents
Sec.
15.1 Purpose.
15.2 Authority.
15.3 Policies and procedures.
Authority: 10 U.S.C. 113(d) and 140(b).
Source: 68 FR 39395, July 1, 2003, unless otherwise noted.
Sec. 15.1 Purpose.
This part establishes supervisory and performance evaluation
relationships for military commission personnel.
Sec. 15.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' (3 CFR 2001
Comp., p. 918, 66 FR 57833) and 10 U.S.C. 113(d) and 140(b). The
provisions of 32 CFR part 10 are applicable to this part.
Sec. 15.3 Policies and Procedures.
(a) Supervisory and performance evaluation relationships.
Individuals appointed, assigned, detailed, designated or employed in a
capacity related to the conduct of military commission proceedings
conducted in accordance with 32 CFR part 9 and Military Order of
November 13, 2001, ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism,'' shall be subject to the
relationships set forth in paragraphs (a)(1) through (a)(9) of this
section. Unless stated otherwise, the person to whom an individual
``reports,'' as set forth in paragraphs (a)(1) through (a)(9) of this
section, shall be deemed to be such individual's supervisor and shall,
to the extent possible, fulfill all performance evaluation
responsibilities normally associated with the function of direct
supervisor in accordance with the subordinate's Military Service
performance evaluation regulations.
(1) Appointing Authority: Any Appointing Authority designated by the
Secretary of Defense pursuant to 32 CFR part 9 shall report to the
Secretary of Defense in accordance with 10 U.S.C. 113(d).
(2) Legal Advisor to Appointing Authority: The Legal Advisor to the
Appointing Authority shall report to the Appointing Authority.
(3) Chief Prosecutor: The Chief Prosecutor shall report to the
Deputy General Counsel (Legal Counsel) of the Department of Defense and
then to the General Counsel of the Department of Defense.
(4) Prosecutors and Assistant Prosecutors: Prosecutors and Assistant
Prosecutors shall report to the Chief Prosecutor and then to the Deputy
General Counsel (Legal Counsel) of the Department of Defense.
(5) Chief Defense Counsel: The Chief Defense Counsel shall report to
the Deputy General Counsel (Personnel and Health Policy) of the
Department of Defense and then to the General Counsel of the Department
of Defense.
(6) Detailed Defense Counsel: Detailed Defense Counsel shall report
to the Chief Defense Counsel and then to the Deputy General Counsel
(Personnel and Health Policy) of the Department of Defense.
(7) Review Panel members: Members of the Review Panel shall report
to the Secretary of Defense.
(8) Commission members: Commission members shall continue to report
to their parent commands. The consideration or evaluation of the
performance of duty as a member of a military commission is prohibited
in preparing effectiveness, fitness, or evaluation reports of a
commission member.
[[Page 54]]
(9) Other personnel: All other military commission personnel, such
as court reporters, interpreters, security personnel, bailiffs, and
clerks detailed or employed by the Appointing Authority pursuant to 32
CFR 9.4(d), if not assigned to the Office of the Chief Prosecutor or the
Office of the Chief Defense Counsel, shall report to the Appointing
Authority or his designee.
(b) Responsibilities of supervisory/reporting officials. Officials
designated in this part as supervisory/reporting officials shall:
(1) Supervise subordinates in the performance of their duties.
(2) Prepare fitness or performance evaluation reports and, as
appropriate, process awards and citations for subordinates. To the
extent practicable, a reporting official shall comply with the rated
subordinate's Military Service regulations regarding the preparation of
fitness or performance evaluation reports and in executing related
duties.
PART 16_SENTENCING--Table of Contents
Sec.
16.1 Purpose.
16.2 Authority.
16.3 Available sentences.
16.4 Sentencing procedures.
Authority: 10 U.S.C. 113(d) and 140(b).
Source: 68 FR 39396, July 1, 2003, unless otherwise noted.
Sec. 16.1 Purpose.
This part promulgates policy, assigns responsibilities, and
prescribes procedures for matters related to sentencing of persons with
regard to whom a finding of guilty is entered for an offense referred
for trial by a military commission appointed pursuant to 32 CFR part 9
and Military Order of November 13, 2001, ``Detention, Treatment, and
Trial of Certain Non-Citizens in the War Against Terrorism'' (3 CFR 2001
Comp., p. 918, 66 FR 57833).
Sec. 16.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' and 10 U.S.C.
113(d) and 140(b). The provisions of 32 CFR part 10 are applicable to
this part.
Sec. 16.3 Available sentences.
(a) General. 32 CFR part 9 permits a military commission wide
latitude in sentencing. Any lawful punishment or condition of punishment
is authorized, including death, so long as the prerequisites detailed in
32 CFR part 9 are met. Detention associated with an individual's status
as an enemy combatant shall not be considered to fulfill any term of
imprisonment imposed by a military commission. The sentence
determination should be made while bearing in mind that there are
several principal reasons for a sentence given to those who violate the
law. Such reasons include: punishment of the wrongdoer; protection of
society from the wrongdoer; deterrence of the wrongdoer and those who
know of his crimes and sentence from committing the same or similar
offenses; and rehabilitation of the wrongdoer. In determining an
appropriate sentence, the weight to be accorded any or all of these
reasons rests solely within the discretion of commission members. All
sentences should, however, be grounded in a recognition that military
commissions are a function of the President's war-fighting role as
Commander-in-Chief of the Armed Forces of the United States and of the
broad deterrent impact associated with a sentence's effect on adherence
to the laws and customs of war in general.
(b) Conditions of imprisonment. Decisions regarding the location
designated for any imprisonment, the conditions under which a sentence
to imprisonment is served, or the privileges accorded one during any
period of imprisonment should generally not be made by the commission.
Those decisions and actions, however, may be appropriate subjects for
recommendation to the person making a final decision on the sentence in
accordance with of 32 CFR 9.6(h).
(c) Prospective recommendations for sentence modification. A
sentence imposed by military commission may be accompanied by a
recommendation to suspend, remit, commute or otherwise modify the
adjudged sentence in concert with one or more conditions upon
[[Page 55]]
which the suspension, remission, commutation, or other modification is
contingent (usually relating to the performance, behavior or conduct of
the Accused). Unless otherwise directed, a decision or action in
accordance with such a recommendation will be effected by direction or
delegation to the Appointing Authority by the official making a final
decision on the sentence in accordance with of 32 CFR 9.6(h).
Sec. 16.4 Sentencing procedures.
(a) General. 32 CFR part 9 permits the military commission
substantial discretion regarding the conduct of sentencing proceedings.
Sentencing proceedings should normally proceed expeditiously. In the
discretion of the Presiding Officer, as limited by the Appointing
Authority, reasonable delay between the announcement of findings and the
commencement of sentencing proceedings may be authorized to facilitate
the conduct of proceedings in accordance with of 32 CFR 9.6(b).
(b) Information relevant to sentencing. 32 CFR 9.6(e)(10) permits
the Prosecution and Defense to present information to aid the military
commission in determining an appropriate sentence. Such information may
include a recommendation of an appropriate sentence, information
regarding sentence ranges for analogous offenses (e.g., the sentencing
range under the Federal Sentencing Guidelines that could be applicable
to the Accused for the most analogous federal offenses), and other
relevant information. Regardless of any presentation by the Prosecution
or Defense, the military commission shall consider any evidence admitted
for consideration prior to findings regarding guilt. The Presiding
Officer may limit or require the presentation of certain information
consistent with 32 CFR part 9 and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism'.
(c) Cases involving plea agreements. In accordance with 32 CFR
9.6(a)(4), after determining the voluntary and informed nature of a plea
agreement approved by the Appointing Authority, the military commission
is bound to adjudge findings and a sentence pursuant to that plea
agreement. Accordingly, the Presiding Officer may exercise the authority
granted in of 32 CFR 9.6(e) to curtail or preclude the presentation of
information and argument relative to the military commission's
determination of an appropriate sentence.
(d) Special duties. In cases involving plea agreements or
recommendations for certain conditions of imprisonment or prospective
sentence modification, the Prosecution and Defense shall provide
whatever post-trial information or recommendation as is relevant to any
subsequent decision regarding such condition or suspension, remission,
commutation, or other modification recommendation associated with the
sentence.
PART 17_ADMINISTRATIVE PROCEDURES--Table of Contents
Sec.
17.1 Purpose.
17.2 Authority.
17.3 Commission personnel.
17.4 Interlocutory questions.
17.5 Implied duties of the presiding officer.
17.6 Disclosures.
Authority: 10 U.S.C. 113(d) and 140(b).
Source: 68 FR 39397, July 1, 2003, unless otherwise noted.
Sec. 17.1 Purpose.
This part promulgates policy, assigns responsibilities, and
prescribes procedures for the conduct of trials by a military commission
appointed pursuant to 32 CFR part 9 and Military Order of November 13,
2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism,'' (3 CFR 2001 Comp., p. 918, 66 FR 57833).
Sec. 17.2 Authority.
This part is issued pursuant to 32 CFR 9.7(a) and in accordance with
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism,'' and 10 U.S.C.
113(d) and 140(b). The provisions of 32 CFR part 10 are applicable to
this part.
Sec. 17.3 Commission personnel.
(a) Appointment and removal of Commission members. (1) In accordance
with
[[Page 56]]
32 CFR part 9, the Appointing Authority shall appoint at least three but
no more than seven members and one or two alternate members. The
Appointing Authority may remove members and alternate members for good
cause. In the event a member (or alternate member) is removed for good
cause, the Appointing Authority may replace the member, direct that an
alternate member serve in the place of the original member, direct that
proceedings simply continue without the member, or convene a new
commission. In the absence of guidance from the Appointing Authority
regarding replacement, the Presiding Officer shall select an alternate
member to replace the member in question.
(2) The Presiding Officer shall determine if it is necessary to
conduct or permit questioning of members (including the Presiding
Officer) on issues of whether there is good cause for their removal. The
Presiding Officer may permit questioning in any manner he deems
appropriate. Consistent with 32 CFR part 9, any such questioning shall
be narrowly focused on issues pertaining to whether good cause may exist
for the removal of any member.
(3) From time to time, it may be appropriate for a Presiding Officer
to forward to the Appointing Authority information and, if appropriate,
a recommendation relevant to the question of whether a member (including
the Presiding Officer) should be removed for good cause. While awaiting
the Appointing Authority's decision on such matter, the Presiding
Officer may elect either to hold proceedings in abeyance or to continue.
The Presiding Officer may issue any appropriate instructions to the
member whose continued service is in question. A military commission
shall not engage in deliberations on findings or sentence prior to the
Appointing Authority's decision in any case in which the Presiding
Officer has recommended a member's removal.
(b) Military commission security officer. The Appointing Authority
may detail a Security Officer to advise a military commission on matters
related to classified and protected information. In addition to any
other duties assigned by the Appointing Authority, the Security Officer
shall ensure that all classified or protected evidence and information
is appropriately safeguarded at all times and that only personnel with
the appropriate clearances and authorizations are present when
classified or protected materials are presented before military
commissions.
(c) Other military commission personnel. The Appointing Authority
may detail court reporters, interpreters, security personnel, bailiffs,
clerks, and any other personnel to a military commission as deemed
necessary. In the absence of a detailing by the Appointing Authority,
the Chief Prosecutor shall be responsible to ensure the availability of
necessary or appropriate personnel to facilitate the impartial and
expeditious conduct of full and fair trials by military commission.
Sec. 17.4 Interlocutory questions.
(a) Certification of interlocutory questions. The Presiding Officer
shall generally adjudicate all motions and questions that arise during
the course of a trial by military commission. In accordance with 32 CFR
9.4(a)(5)(iv), however, the Presiding Officer shall certify all
interlocutory questions, the disposition of which would effect a
termination of proceedings with respect to a charge, for decision by the
Appointing Authority. In addition, the Presiding Officer may certify
other interlocutory questions to the Appointing Authority as the
Presiding Officer deems appropriate.
(b) Submission of interlocutory questions. The Presiding Officer
shall determine what, if any, documentary or other materials should be
forwarded to the Appointing Authority in conjunction with an
interlocutory question.
(c) Effect of interlocutory question certification on proceedings.
While decision by the Appointing Authority is pending on any certified
interlocutory question, the Presiding Officer may elect either to hold
proceedings in abeyance or to continue.
Sec. 17.5 Implied duties of the presiding officer.
The Presiding Officer shall ensure the execution of all ancillary
functions necessary for the impartial and expeditious conduct of a full
and fair trial by military commission in accordance
[[Page 57]]
with 32 CFR part 9. Such functions include, for example, scheduling the
time and place of convening of a military commission, ensuring that an
oath or affirmation is administered to witnesses and military commission
personnel as appropriate, conducting appropriate in camera meetings to
facilitate efficient trial proceedings, and providing necessary
instructions to other commission members. The Presiding Officer shall
rule on appropriate motions or, at his discretion consistent with 32 CFR
part 9, may submit them to the commission for decision or to the
Appointing Authority as a certified interlocutory question.
Sec. 17.6 Disclosures.
(a) General. Unless directed otherwise by the Presiding Officer upon
a showing of good cause or for some other reason, counsel for the
Prosecution and the Defense shall provide to opposing counsel, at least
one week prior to the scheduled convening of a military commission,
copies of all information intended for presentation as evidence at
trial, copies of all motions the party intends to raise before the
military commission, and names and contact information of all witnesses
a party intends to call. Motions shall also be provided to the Presiding
Officer at the time they are provided to opposing counsel. Unless
directed otherwise by the Presiding Officer, written responses to any
motions will be provided to opposing counsel and the Presiding Officer
no later than three days prior to the scheduled convening of a military
commission.
(b) Notifications by the prosecution. The Prosecution shall provide
the Defense with access to evidence known to the Prosecution that tends
to exculpate the Accused as soon as practicable, and in no instance
later than one week prior to the scheduled convening of a military
commission.
(c) Notifications by the defense. The Defense shall give notice to
the Prosecution of any intent to raise an affirmative defense to any
charge at least one week prior to the scheduled convening of a military
commission.
(d) Evidence related to mental responsibility. If the Defense
indicates an intent to raise a defense of lack of mental responsibility
or introduce expert testimony regarding an Accused's mental condition,
the prosecution may require that the Accused submit to a mental
examination by a military psychologist or psychiatrist, and both parties
shall have access to the results of that examination.
PART 18_APPOINTING AUTHORITY FOR MILITARY COMMISSIONS--Table of Contents
Sec.
18.1 Purpose
18.2 Applicability and scope.
18.3 Organization.
18.4 Responsibilities and functions.
18.5 Relationships.
18.6 Authorities.
Authority: 10 U.S.C. 113 and 131(b)(8).
Source: 69 FR 31292, June 3, 2004, unless otherwise noted.
Sec. 18.1 Purpose.
Pursuant to the authority vested in the Secretary of Defense under
the U.S. Constitution, Article II, Section 2, Clause 2, 10 U.S.C. 113
and 131(b)(8) and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism,'' (66 FR 57833 (November 16, 2001)) (``President's Military
Order'') this part establishes the position and office of the Appointing
Authority for Military Commissions, with the responsibilities,
functions, relationships, and authorities as prescribed herein.
Sec. 18.2 Applicability and scope.
This part applies to:
(a) The Office of the Secretary of Defense (OSD), the Military
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant
Commands, the Office of the Inspector General of the Department of
Defense, the Defense Agencies, the DoD Field Activities, all other
organizational entities in the Department of Defense (hereafter referred
to collectively as ``the DoD Components'').
(b) Any special trial counsel of the Department of Justice who may
be made available by the Attorney General of the United States to serve
as a prosecutor in trials before military commissions pursuant to
section
[[Page 58]]
4(B)(2) of DoD Military Commission Order No. 1,\1\ ``Procedures for
Trials by Military Commissions of Certain Non-United States Citizens in
the War Against Terrorism,'' March 21, 2002.
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\1\ DoD Military Commission Orders and Instructions referenced in
this Directive can be found at http://www.dtic.mil/whs/directives/
corres/mco.htm.
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(c) Any civilian attorney who seeks qualification as a member of a
pool of qualified Civilian Defense Counsel authorized in section
4(C)(3)(b) of DoD Military Commission Order No. 1; and to any attorney
who has been qualified as a member of that pool.
Sec. 18.3 Organization.
(a) The Appointing Authority for Military Commissions is established
in the Office of the Secretary of Defense under the authority,
direction, and control of the Secretary of Defense.
(b) The Office of the Appointing Authority shall consist of the
Appointing Authority, the Legal Advisor to the Appointing Authority, and
such other subordinate officials and organizational elements as are
established by the General Counsel of the Department of Defense within
the resources assigned by the Secretary of Defense.
Sec. 18.4 Responsibilities and functions.
(a) The Appointing Authority for Military Commissions is an officer
of the United States appointed by the Secretary of Defense pursuant to
the U.S. Constitution and 10 U.S.C. In this capacity, the Appointing
Authority for Military Commissions shall exercise the duties prescribed
in DoD Military Commission Order No. 1 and this part and shall:
(1) Issue orders from time to time appointing one or more military
commissions to try individuals subject to the President's Military Order
and DoD Military Commission Order No. 1; and appoint any other personnel
necessary to facilitate military commissions.
(2) Appoint military commission members and alternate members, based
on competence to perform the duties involved. Remove members and
alternate members for good cause pursuant to Military Commission
Instruction No. 8.
(3) Designate a Presiding Officer from among the members of each
military commission to preside over the proceedings of that military
commission. The Presiding Officer shall be a military officer who is a
judge advocate of any United States Armed Force.
(4) Approve and refer charges prepared by that Prosecution against
an individual or individuals subject to Military Order of November 13,
2001.
(5) Approve plea agreements with an Accused.
(6) Decide interlocutory questions certified by the Presiding
Officer.
(7) Ensure military commission proceedings are open to the maximum
extent practicable. Decide when military commission proceedings should
be closed pursuant to Military Order of November 13, 2001 and DoD
Military Commission Order No. 1.
(8) Make decisions related to attendance at military commission
proceedings by the public and accredited press and the public release of
transcripts. Such matters, including policy and plans for media coverage
shall be coordinated with the Assistant Secretary of Defense for Public
Affairs (ASD(PA)) and, as appropriate, the Assistant Secretary of
Defense for Special Operations/Low Intensity Conflict (ASD(SO/LIC))
under the Under Secretary of Defense for Policy (USD(P)).
(9) Approve or disapprove requests from the Prosecution and Defense
to communicate with news media representatives regarding cases and other
matters related to military commissions. Such matters shall be
coordinated with the ASD(PA).
(10) Detail or employ personnel such as court reporters,
interpreters, security personnel, bailiffs, and clerks to support
military commissions, as necessary. When such details effect resources
committed to operational missions, coordinate with the ASD (SO/LIC)
under the USD(P) and the Heads of appropriate DoD Components.
(11) Order that such investigative or other resources be made
available to Defense Counsel and the Accused ad deemed necessary for a
full and fair trial, including appointing interpreters.
[[Page 59]]
(12) Promptly review military commission records of trial for
administrative completeness and determine appropriate disposition,
either transmitting the record of trial to the Review Panel or returning
it to the military commission for any necessary supplementary
proceedings.
(13) Implement directions of officials with final decision-making
authority for sentences.
(14) Perform supervisory and performance evaluation duties pursuant
to this part and DoD Military Commission Instruction No. 6.
(15) Coordinate matters involving members of the Congress, including
correspondence, with the Assistant Secretary of Defense for Legislative
Affairs; and coordinate and exchange data and information with other OSD
officials, the Heads of the DoD Components, and other Federal officials
having collateral or related functions.
(16) Establish, maintain, and preserve records that serve as
evidence of the organization, functions, policies, decisions,
procedures, operations, and other activities of the Office of the
Appointing Authority for Military Commissions in accordance with Title
44 U.S.C.
(17) Perform such other functions as the Secretary of Defense may
prescribe.
(b) The General Counsel of the Department of Defense shall:
(1) Review and approve such regulations, instructions, memoranda,
and other DoD publications prepared by the Appointing Authority (see
Sec. 18.6(c)) for the conduct of proceedings by military commissions
established pursuant to Military Order of November 13, 2001 and DoD
Military Commission Order No. 1.
(2) Provide guidance and issue instructions necessary to facilitate
the conduct of proceedings by military commissions established pursuant
to Military Order of November 13, 2001 and DoD Military Commission Order
No. 1, including but not limited to instructions pertaining to military
commission-related offices, performance evaluations and reporting
relationships.
(c) The Chairman of the Joint Chiefs of Staff and the OSD Principal
Staff Assistants shall exercise their designated authorities and
responsibilities as established by law or DoD guidance to support the
Appointing Authority for Military Commissions in the implementation of
the responsibilities and functions specified herein.
(d) The Secretaries of the Military Departments shall support the
personnel requirements of the Appointing Authority as validated by the
General Counsel of the Department of Defense and provide other requested
assistance and support within their capabilities.
Sec. 18.5 Relationships.
(a) In the performance of assigned functions and responsibilities,
the Appointing Authority for Military Commission shall:
(1) Report directly to the Secretary of Defense.
(2) Use existing facilities and services of the Department of
Defense and other Federal Agencies, whenever practicable, to avoid
duplication and to achieve an appropriate level of efficiency and
economy.
(b) Other OSD officials and the Heads of the DoD Components shall
coordinate with the Appointing Authority for Military Commissions on all
matters related to the responsibilities and functions cited in Sec.
18.4.
(c) Nothing herein shall be interpreted to subsume or replace the
responsibilities, functions, or authorities of the OSD Principal Staff
Assistants, the Secretaries of the Military Departments, the Chairman of
the Joint Chiefs of Staff, the Commanders of Combatant Commands, or the
Heads of Defense Agencies or the Department of Defense Field Activities
prescribed by law or Department of Defense guidance.
Sec. 18.6 Authorities.
The Appointing Authority for Military Commissions is hereby
delegated authority to:
(a) Obtain reports and information, consistent with DoD Directive
8910.1 as necessary to carry out assigned functions.
(b) Communicate directly with the Heads of the DoD Components as
necessary to carry out assigned functions, including the transmission of
requests for advice and assistance. Communications to the Military
Departments
[[Page 60]]
shall be transmitted through the Secretaries of the Military
Departments, their designees, or as otherwise provided in law or
directed by the Secretary of Defense in other Department of Defense
issuances. Communications to the Commanders of the Combatant Commands,
except in unusual circumstances, shall be transmitted through the
Chairman of the Joint Chiefs of Staff.
(c) Subject to the approval of the General Counsel of the Department
of Defense, issue DoD Publications and one-time directive-type memoranda
consistent with DoD 5025.1-M; Military Commission Instructions
consistent with DoD Military Commission Instruction No. 1; and such
other regulations as are necessary or appropriate for the conduct of
proceedings by military commissions established pursuant to Military
Order of November 13, 2001 and DoD Military Commission Order No. 1.
Instructions to the Military Departments shall be issued through the
Secretaries of the Military Departments. Instructions to the Combatant
Commands, except in unusual circumstances, shall be communicated through
the Chairman of the Joint Chiefs of Staff.
(d) Communicate with other Government officials, representatives of
the Legislative Branch, members of the public, and representatives of
foreign governments, as applicable, in carrying out assigned functions.
PARTS 19-20 [RESERVED]
[[Page 61]]
SUBCHAPTER C_DoD GRANT AND AGREEMENT REGULATIONS
PART 21_DoD GRANTS AND AGREEMENTS_GENERAL MATTERS--Table of Contents
Subpart A_Introduction
Sec.
21.100 What are the purposes of this part?
Subpart B_Defense Grant and Agreement Regulatory System
21.200 What is the Defense Grant and Agreement Regulatory System
(DGARS)?
21.205 What types of instruments are covered by the DGARS?
21.210 What are the purposes of the DGARS?
21.215 Who is responsible for the DGARS?
21.220 What publications are in the DGARS?
Subpart C_The DoD Grant and Agreement Regulations
21.300 What instruments are subject to the DoD Grant and Agreement
Regulations (DoDGARs)?
21.305 What is the purpose of the DoDGARs?
21.310 Who ensures DoD Component compliance with the DoDGARs?
21.315 May DoD Components issue supplemental policies and procedures to
implement the DoDGARs?
21.320 Are there areas in which DoD Components must establish policies
and procedures to implement the DoDGARs?
21.325 Do acquisition regulations also apply to DoD grants and
agreements?
21.330 How are the DoDGARs published and maintained?
21.335 Who can authorize deviations from the DoDGARs?
21.340 What are the procedures for requesting and documenting
deviations?
Subpart D_Authorities and Responsibilities for Making and Administering
Assistance Awards
21.400 To what instruments does this subpart apply?
21.405 What is the purpose of this subpart?
21.410 Must a DoD Component have statutory authority to make an
assistance award?
21.415 Must the statutory authority specifically mention the use of
grants or other assistance instruments?
21.420 Under what types of statutory authorities do DoD Components award
assistance instruments?
21.425 How does a DoD Component's authority flow to awarding and
administering activities?
21.430 What are the responsibilities of the head of the awarding or
administering activity?
21.435 Must DoD Components formally select and appoint grants officers
and agreements officers?
21.440 What are the standards for selecting and appointing grants
officers and agreements officers?
21.445 What are the requirements for a grants officer's or agreements
officer's statement of appointment?
21.450 What are the requirements for a termination of a grants officer's
or agreements officer's appointment?
21.455 Who can sign, administer, or terminate assistance instruments?
21.460 What is the extent of grants officers' and agreements officers'
authority?
21.465 What are grants officers' and agreements officers'
responsibilities?
Subpart E_Information Reporting on Awards Subject to 31 U.S.C. Chapter
61
21.500 What is the purpose of this subpart?
21.505 What is the Catalog of Federal Domestic Assistance (CFDA)?
21.510 Why does the DoD report information to the CFDA?
21.515 Who reports the information for the CFDA?
21.520 What are the purposes of the Defense Assistance Awards Data
System (DAADS)?
21.525 Who issues policy guidance for the DAADS?
21.530 Who operates the DAADS?
21.535 Do DoD Components have central points for collecting DAADS data?
21.540 What are the duties of the DoD Components' central points for the
DAADS?
21.545 Must DoD Components report every obligation to the DAADS?
21.550 Must DoD Components relate reported actions to listings in the
CFDA?
21.555 When and how must DoD Components report to the DAADS?
21.560 Must DoD Components assign numbers uniformly to awards?
21.565 Must DoD Components' electronic systems accept Data Universal
Numbering System (DUNS) numbers?
Subpart F_Definitions
21.605 Acquisition.
21.610 Agreements officer.
21.615 Assistance.
[[Page 62]]
21.620 Award.
21.625 Contract.
21.630 Contracting activity.
21.635 Contracting officer.
21.640 Cooperative agreement.
21.645 Deviation.
21.650 DoD Components.
21.655 Grant.
21.660 Grants officer.
21.665 Nonprocurement instrument.
21.670 Procurement contract.
21.675 Recipient.
21.680 Technology investment agreements.
Appendix A to Part 21--Instruments to Which DoDGARs Portions Apply
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
Source: 68 FR 47153, Aug. 7, 2003, unless otherwise noted.
Subpart A_Introduction
Sec. 21.100 What are the purposes of this part?
This part of the DoD Grant and Agreement Regulations:
(a) Provides general information about the Defense Grant and
Agreement Regulatory System (DGARS).
(b) Sets forth general policies and procedures related to DoD
Components' overall management of functions related to assistance and
certain other nonprocurement instruments subject to the DGARS (see Sec.
21.205(b)).
Subpart B_Defense Grant and Agreement Regulatory System
Sec. 21.200 What is the Defense Grant and Agreement Regulatory System
(DGARS)?
The Defense Grant and Agreement Regulatory System (DGARS) is the
system of regulatory policies and procedures for the award and
administration of DoD Components' assistance and other nonprocurement
awards. DoD Directive 3210.6\1\ established the DGARS.
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\1\ Electronic copies may be obtained at the Washington Headquarters
Services Internet site http://www.dtic.mil/whs/directives. Paper copies
may be obtained, at cost, from the National Technical Information
Service, 5285 Port Royal Road, Springfield, VA 22161.
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Sec. 21.205 What types of instruments are covered by the DGARS?
The Defense Grant and Agreement Regulatory System (DGARS) applies to
the following types of funding instruments awarded by DoD Components:
(a) All grants, cooperative agreements, and technology investment
agreements.
(b) Other nonprocurement instruments, as needed to implement
statutes, Executive orders, or other Federal Governmentwide rules that
apply to those other nonprocurement instruments, as well as to grants
and cooperative agreements.
Sec. 21.210 What are the purposes of the DGARS?
The purposes of the DGARS are to provide uniform policies and
procedures for DoD Components' awards, in order to meet DoD needs for:
(a) Efficient program execution, effective program oversight, and
proper stewardship of Federal funds.
(b) Compliance with relevant statutes; Executive orders; and
applicable guidance, such as Office of Management and Budget (OMB)
circulars.
(c) Collection from DoD Components, retention, and dissemination of
management and fiscal data related to awards.
Sec. 21.215 Who is responsible for the DGARS?
The Director of Defense Research and Engineering, or his or her
designee, develops and implements DGARS policies and procedures. He or
she does so by issuing and maintaining the DoD publications that
comprise the DGARS.
Sec. 21.220 What publications are in the DGARS?
A DoD publication (DoD 3210.6-R \2\) entitled ``The DoD Grant and
Agreement Regulations'' is the principal element of the DGARS. The
Director of Defense Research and Engineering also may publish DGARS
policies and procedures in DoD instructions and other DoD publications,
as appropriate.
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\2\ See footnote 1 to Sec. 21.200.
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[[Page 63]]
Subpart C_The DoD Grant and Agreement Regulations
Sec. 21.300 What instruments are subject to the DoD Grant and Agreement
Regulations (DoDGARs)?
(a) The types of instruments that are subject to the DoDGARs vary
from one portion of the DoDGARs to another. The types of instruments
include grants, cooperative agreements, and technology investment
agreements. Some portions of the DoDGARs apply to other types of
assistance or nonprocurement instruments. The term ``awards,'' as
defined in subpart D of this part, is used in this part to refer
collectively to all of the types of instruments that are subject to one
or more portions of the DoDGARs.
(b) Note that each portion of the DoDGARs identifies the types of
instruments to which it applies. However, grants officers and agreements
officers must exercise caution when determining the applicability of
some Governmentwide rules that are included within the DoDGARs, because
a term may be defined differently in a Governmentwide rule than it is
defined elsewhere in the DoDGARs. One example is part 33 of the DoDGARs
(32 CFR part 33), which contains administrative requirements for awards
to State and local governments. That DoDGARs part is the DoD's
codification of the Governmentwide rule implementing OMB Circular A-
102.\3\ Part 33 states that it applies to grants, but defines the term
``grant'' to include cooperative agreements and other forms of financial
assistance.
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\3\ Electronic copies may be obtained at the Internet site http://
www.whitehouse.gov/OMB. For paper copies, contact the Office of
Management and Budget, EOP Publications, 725 17th St., NW., New
Executive Office Building, Washington, DC 20503.
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(c) For convenience, the table in Appendix A to this part provides
an overview of the applicability of the various portions of the DoDGARs.
Sec. 21.305 What is the purpose of the DoDGARs?
The DoD Grant and Agreement Regulations provide uniform policies and
procedures for the award and administration of DoD Components' awards.
The DoDGARs are the primary DoD regulations for achieving the DGARS
purposes described in Sec. 21.210.
Sec. 21.310 Who ensures DoD Component compliance with the DoDGARs?
The Head of each DoD Component that makes or administers awards, or
his or her designee, is responsible for ensuring compliance with the
DoDGARs within that DoD Component.
Sec. 21.315 May DoD Components issue supplemental policies and procedures to
implement the DoDGARs?
Yes, Heads of DoD Components or their designees may issue
regulations, procedures, or instructions to implement the DGARS or
supplement the DoDGARs to satisfy needs that are specific to the DoD
Component, as long as the regulations, procedures, or instructions do
not impose additional costs or administrative burdens on recipients or
potential recipients.
Sec. 21.320 Are there areas in which DoD Components must establish policies
and procedures to implement the DoDGARs?
Yes, Heads of DoD Components or their designees must establish
policies and procedures in areas where uniform policies and procedures
throughout the DoD Component are required, such as for:
(a) Requesting class deviations from the DoDGARs (see Sec. Sec.
21.335(b) and 21.340(a)) or exemptions from the provisions of 31 U.S.C.
6301 through 6308, that govern the appropriate use of contracts, grants,
and cooperative agreements (see 32 CFR 22.220).
(b) Designating one or more Grant Appeal Authorities to resolve
claims, disputes, and appeals (see 32 CFR 22.815).
(c) Reporting data on assistance awards and programs, as required by
31 U.S.C. chapter 61 (see subpart E of this part).
(d) Prescribing requirements for use and disposition of real
property acquired under awards, if the DoD Component makes any awards to
institutions of higher education or to other nonprofit organizations
under which real property is acquired in whole or in
[[Page 64]]
part with Federal funds (see 32 CFR 32.32).
Sec. 21.325 Do acquisition regulations also apply to DoD grants and
agreements?
Unless the DoDGARs specify that they apply, policies and procedures
in the following acquisition regulations that apply to procurement
contracts do not apply to grants, cooperative agreements, technology
investment agreements, or to other assistance or nonprocurement awards:
(a) The Federal Acquisition Regulation (FAR)(48 CFR parts 1-53).
(b) The Defense Federal Acquisition Regulation Supplement (DFARS)(48
CFR parts 201-270).
(c) DoD Component supplements to the FAR and DFARS.
Sec. 21.330 How are the DoDGARs published and maintained?
(a) The DoD publishes the DoDGARs in chapter I, subchapter C, Title
32 of the Code of Federal Regulations (CFR) and in a separate internal
DoD document (DoD 3210.6-R). The DoD document is divided into parts,
subparts, and sections, to parallel the CFR publication. Cross-
references within the DoDGARs are stated as CFR citations (e.g., a
reference to Sec. 21.215 in part 21 would be to 32 CFR 21.215).
(b) The DoD publishes updates to the DoDGARs in the Federal
Register. When finalized, the DoD also posts the updates to the internal
DoD document on the World Wide Web at http://www.dtic.mil/whs/
directives.
(c) A standing working group recommends revisions to the DoDGARs to
the Director of Defense Research and Engineering (DDR&E). The DDR&E,
Director of Defense Procurement, and each Military Department must be
represented on the working group. Other DoD Components that make or
administer awards may also nominate representatives. The working group
meets when necessary.
Effective Date Note: At 72 FR 34986, June 26, 2007, Sec. 21.330 was
amended by revising paragraph (a), effective Aug. 27, 2007. For the
convenience of the user, the revised text is set forth as follows:
Sec. 21.330 How are the DoDGARs published and maintained?
(a) The DoD publishes the DoDGARs in the Code of Federal Regulations
(CFR) and in a separate internal DoD document (DoD 3210.6-R).
(1) The location of the DoDGARs in the CFR currently is in
transition. They are moving from Chapter I, Subchapter C, Title 32, to a
new location in Chapter XI, Title 2 of the CFR. During the transition,
there will be some parts of the DoDGARs in each of the two titles.
(2) The DoD document is divided into parts, subparts, and sections,
to parallel the CFR publication. Cross references within the DoD
document are stated as CFR citations (e.g., a reference to section
21.215 in part 21 would be to 32 CFR 21.215), which also is how they are
stated in the CFR publication of the DoDGARs.
* * * * *
Sec. 21.335 Who can authorize deviations from the DoDGARs?
(a) The Head of the DoD Component or his or her designee may
authorize individual deviations from the DoDGARs, which are deviations
that affect only one award, if the deviations are not prohibited by
statute, executive order or regulation.
(b) The Director of Defense Research and Engineering (DDR&E) or his
or her designee must approve in advance any class deviation that affects
more than one award. Note that OMB concurrence also is required for
class deviations from two parts of the DoDGARs, 32 CFR parts 32 and 33,
in accordance with 32 CFR 32.4 and 33.6, respectively.
Sec. 21.340 What are the procedures for requesting and documenting
deviations?
(a) DoD Components must submit copies of justifications and agency
approvals for individual deviations and written requests for class
deviations to: Deputy Director of Defense Research and Engineering,
ATTN: Basic Research, 3080 Defense Pentagon, Washington, DC 20301-3080.
(b) Grants officers and agreements officers must maintain copies of
requests and approvals for individual and class deviations in award
files.
[[Page 65]]
Subpart D_Authorities and Responsibilities for Making and Administering
Assistance Awards
Sec. 21.400 To what instruments does this subpart apply?
This subpart applies to grants, cooperative agreements, and
technology investment agreements, which are legal instruments used to
reflect assistance relationships between the United States Government
and recipients.
Sec. 21.405 What is the purpose of this subpart?
This subpart describes the sources and flow of authority to make or
administer assistance awards, and assigns the broad responsibilities
associated with DoD Components' use of those instruments.
Sec. 21.410 Must a DoD Component have statutory authority to make an
assistance award?
Yes, the use of an assistance instrument to carry out a program
requires authorizing legislation. That is unlike the use of a
procurement contract, for which Federal agencies have inherent,
Constitutional authority.
Sec. 21.415 Must the statutory authority specifically mention the use of
grants or other assistance instruments?
No, the statutory authority described in Sec. 21.410 need not
specifically say that the purpose of the program is assistance or
mention the use of any type of assistance instrument. However, the
intent of the statute must support a judgment that the use of an
assistance instrument is appropriate. For example, a DoD Component may
judge that the principal purpose of a program for which it has
authorizing legislation is assistance, rather than acquisition. The DoD
Component would properly use an assistance instrument to carry out that
program, in accordance with 31 U.S.C. chapter 63.
Sec. 21.420 Under what types of statutory authorities do DoD Components
award assistance instruments?
DoD Components may use assistance instruments under a number of
statutory authorities that fall into three categories:
(a) Authorities that statutes provide to the Secretary of Defense.
These authorities generally are delegated by the Secretary of Defense to
Heads of DoD Components, usually through DoD directives, instructions,
or policy memoranda that are not part of the Defense Grant and Agreement
Regulatory System. Examples of statutory authorities in this category
are:
(1) Authority under 10 U.S.C. 2391 to award grants or cooperative
agreements to help State and local governments alleviate serious
economic impacts of defense program changes (e.g., base openings and
closings, contract changes, and personnel reductions and increases).
(2) Authority under 10 U.S.C. 2413 to enter into cooperative
agreements with entities that furnish procurement technical assistance
to businesses.
(b) Authorities that statutes may provide directly to Heads of DoD
Components. When a statute authorizes the Head of a DoD Component to use
a funding instrument to carry out a program with a principal purpose of
assistance, use of that authority requires no delegation by the
Secretary of Defense. For example, 10 U.S.C. 2358 authorizes the
Secretaries of the Military Departments, in addition to the Secretary of
Defense, to perform research and development projects through grants and
cooperative agreements. Similarly, 10 U.S.C. 2371 provides authority for
the Secretaries of the Military Departments and Secretary of Defense to
carry out basic, applied, or advanced research projects using assistance
instruments other than grants and cooperative agreements. A Military
Department's use of the authority of 10 U.S.C. 2358 or 10 U.S.C. 2371
therefore requires no delegation by the Secretary of Defense.
(c) Authorities that arise indirectly as the result of statute. For
example, authority to use an assistance instrument may result from:
(1) A federal statute authorizing a program that is consistent with
an assistance relationship (i.e., the support or stimulation of a public
purpose, rather than the acquisition of a good or
[[Page 66]]
service for the direct benefit of the Department of Defense). In
accordance with 31 U.S.C. chapter 63, such a program would appropriately
be carried out through the use of grants or cooperative agreements.
Depending upon the nature of the program (e.g., research) and whether
the program statute includes authority for any specific types of
instruments, there also may be authority to use other assistance
instruments.
(2) Exemptions requested by the Department of Defense and granted by
the Office of Management and Budget under 31 U.S.C. 6307, as described
in 32 CFR 22.220.
Sec. 21.425 How does a DoD Component's authority flow to awarding and
administering activities?
The Head of a DoD Component, or his or her designee, may delegate to
the heads of contracting activities (HCAs) within the Component, that
Component's authority to make and administer awards, to appoint grants
officers and agreements officers (see Sec. Sec. 21.435 through 21.450),
and to broadly manage the DoD Component's functions related to
assistance instruments. The HCA is the same official (or officials)
designated as the head of the contracting activity for procurement
contracts, as defined at 48 CFR 2.101. The intent is that overall
management responsibilities for a DoD Component's functions related to
nonprocurement instruments be assigned only to officials that have
similar responsibilities for procurement contracts.
Sec. 21.430 What are the responsibilities of the head of the awarding or
administering activity?
When designated by the Head of the DoD Component or his or her
designee (see 32 CFR 21.425), the head of the awarding or administering
activity (i.e., the HCA) is responsible for the awards made by or
assigned to that activity. He or she must supervise and establish
internal policies and procedures for that activity's awards.
Sec. 21.435 Must DoD Components formally select and appoint grants officers
and agreements officers?
Yes, each DoD Component that awards grants or enters into
cooperative agreements must have a formal process (see Sec. 21.425) for
selecting and appointing grants officers and for terminating their
appointments. Similarly, each DoD Component that awards or administers
technology investment agreements must have a process for selecting and
appointing agreements officers and for terminating their appointments.
Sec. 21.440 What are the standards for selecting and appointing grants
officers and agreements officers?
In selecting grants officers and agreements officers, DoD Components
must use the following minimum standards:
(a) In selecting a grants officer, the appointing official must
judge whether the candidate has the necessary experience, training,
education, business acumen, judgment, and knowledge of assistance
instruments and contracts to function effectively as a grants officer.
The appointing official also must take those attributes of the candidate
into account when deciding the complexity and dollar value of the grants
and cooperative agreements to be assigned.
(b) In selecting an agreements officer, the appointing official must
consider all of the same factors as in paragraph (a) of this section. In
addition, the appointing official must consider the candidate's ability
to function in the less structured environment of technology investment
agreements, where the rules provide more latitude and the individual
must have a greater capacity for exercising judgment. Agreements
officers therefore should be individuals who have demonstrated expertise
in executing complex assistance and acquisition instruments.
Sec. 21.445 What are the requirements for a grants officer's or agreements
officer's statement of appointment?
A statement of a grants officer's or agreements officer's
appointment:
(a) Must be in writing.
(b) Must clearly state the limits of the individual's authority,
other than limits contained in applicable laws or regulations.
Information on those limits of a grants officer's or agreements
officer's authority must be readily available to the public and agency
personnel.
[[Page 67]]
(c) May, if the individual is a contracting officer, be incorporated
into his or her statement of appointment as a contracting officer (i.e.,
there does not need to be a separate written statement of appointment
for assistance instruments).
Sec. 21.450 What are the requirements for a termination of a grants
officer's or agreements officer's appointment?
A termination of a grants officer's or agreements officer's
authority:
(a) Must be in writing, unless the written statement of appointment
provides for automatic termination.
(b) May not be retroactive.
(c) May be integrated into a written termination of the individual's
appointment as a contracting officer, as appropriate.
Sec. 21.455 Who can sign, administer, or terminate assistance instruments?
Only grants officers are authorized to sign, administer, or
terminate grants or cooperative agreements (other than technology
investment agreements) on behalf of the Department of Defense.
Similarly, only agreements officers may sign, administer, or terminate
technology investment agreements.
Sec. 21.460 What is the extent of grants officers' and agreements officers'
authority?
Grants officers and agreements officers may bind the Government only
to the extent of the authority delegated to them in their written
statements of appointment (see Sec. 21.445).
Sec. 21.465 What are grants officers' and agreements officers'
responsibilities?
Grants officers and agreements officers should be allowed wide
latitude to exercise judgment in performing their responsibilities,
which are to ensure that:
(a) Individual awards are used effectively in the execution of DoD
programs, and are made and administered in accordance with applicable
laws, Executive orders, regulations, and DoD policies.
(b) Sufficient funds are available for obligation.
(c) Recipients of awards receive impartial, fair, and equitable
treatment.
Subpart E_Information Reporting on Awards Subject to 31 U.S.C. Chapter
61
Sec. 21.500 What is the purpose of this subpart?
This subpart prescribes policies and procedures for compiling and
reporting data related to DoD awards and programs that are subject to
information reporting requirements of 31 U.S.C. chapter 61. That chapter
of the U.S. Code requires the Office of Management and Budget to
maintain a Governmentwide information system to collect data on Federal
agencies' domestic assistance awards and programs.
Sec. 21.505 What is the Catalog of Federal Domestic Assistance (CFDA)?
The Catalog of Federal Domestic Assistance (CFDA) is a
Governmentwide compilation of information about domestic assistance
programs. It covers all domestic assistance programs and activities,
regardless of the number of awards made under the program, the total
dollar value of assistance provided, or the duration. In addition to
programs using grants and agreements, covered programs include those
providing assistance in other forms, such as payments in lieu of taxes
or indirect assistance resulting from Federal operations.
Sec. 21.510 Why does the DoD report information to the CFDA?
The Federal Program Information Act (31 U.S.C. 6101 through 6106),
as implemented through OMB Circular A-89,\4\ requires the Department of
Defense and other Federal agencies to provide certain information about
their domestic assistance programs to the OMB
[[Page 68]]
and the General Services Administration (GSA). The GSA makes this
information available to the public by publishing it in the Catalog of
Federal Domestic Assistance (CFDA) and maintaining the Federal
Assistance Programs Retrieval System, a computerized data base of the
information.
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\4\ See footnote 3 to Sec. 21.300(b).
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Sec. 21.515 Who reports the information for the CFDA?
(a) Each DoD Component that provides domestic financial assistance
must:
(1) Report to the Director of Information, Operations and Reports,
Washington Headquarters Services (DIOR, WHS) all new programs and
changes as they occur or as the DoD Component submits its annual updates
to existing CFDA information.
(2) Identify to the DIOR, WHS a point-of-contact who will be
responsible for reporting the program information and for responding to
inquiries related to it.
(b) The DIOR, WHS is the Department of Defense's single office for
collecting, compiling and reporting such program information to the OMB
and GSA.
Sec. 21.520 What are the purposes of the Defense Assistance Awards Data
System (DAADS)?
Data from the Defense Assistance Awards Data System (DAADS) are used
to provide:
(a) DoD inputs to meet statutory requirements for Federal
Governmentwide reporting of data related to obligations of funds by
assistance instrument.
(b) A basis for meeting Governmentwide requirements to report to the
Federal Assistance Awards Data System (FAADS) maintained by the
Department of Commerce and for preparing other recurring and special
reports to the President, the Congress, the General Accounting Office,
and the public.
(c) Information to support policy formulation and implementation and
to meet management oversight requirements related to the use of awards.
Sec. 21.525 Who issues policy guidance for the DAADS?
The Deputy Director, Defense Research and Engineering (DDDR&E), or
his or her designee, issues necessary policy guidance for the Defense
Assistance Awards Data System.
Sec. 21.530 Who operates the DAADS?
The Director of Information Operations and Reports, Washington
Headquarters Services (DIOR, WHS), consistent with guidance issued by
the DDDR&E:
(a) Processes DAADS information on a quarterly basis and prepares
recurring and special reports using such information.
(b) Prepares, updates, and disseminates instructions for reporting
information to the DAADS. The instructions are to specify procedures,
formats, and editing processes to be used by DoD Components, including
record layout, submission deadlines, media, methods of submission, and
error correction schedules.
Sec. 21.535 Do DoD Components have central points for collecting DAADS data?
Each DoD Component must have a central point for collecting DAADS
information from contracting activities within that DoD Component. The
central points are as follows:
(a) For the Army: As directed by the U.S. Army Contracting Support
Agency.
(b) For the Navy: As directed by the Office of Naval Research.
(c) For the Air Force: As directed by the Office of the Secretary of
the Air Force, Acquisition Contracting Policy and Implementation
Division (SAF/AQCP).
(d) For the Office of the Secretary of Defense, Defense Agencies,
and DoD Field Activities: Each Defense Agency must identify a central
point for collecting and reporting DAADS information to the DIOR, WHS,
at the address given in Sec. 21.555(a). DIOR, WHS serves as the central
point for offices and activities within the Office of the Secretary of
Defense and for DoD Field Activities.
[[Page 69]]
Sec. 21.540 What are the duties of the DoD Components' central points for
the DAADS?
The office that serves, in accordance with Sec. 21.535, as the
central point for collecting DAADS information from contracting
activities within each DoD Component must:
(a) Establish internal procedures to ensure reporting by contracting
activities that make awards subject to 31 U.S.C. chapter 61.
(b) Collect information required by DD Form 2566,\5\ ``DoD
Assistance Award Action Report,'' from those contracting activities, and
report it to DIOR, WHS, in accordance with Sec. Sec. 21.545 through
21.555.
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(c) Submit to the DIOR, WHS, any recommended changes to the DAADS.
Sec. 21.545 Must DoD Components report every obligation to the DAADS?
Yes, DoD Components' central points must collect and report the data
required by the DD Form 2566 for each individual action that involves
the obligation or deobligation of Federal funds for an award that is
subject to 31 U.S.C. chapter 61.
Sec. 21.550 Must DoD Components relate reported actions to listings in the
CFDA?
Yes, DoD Components' central points must report each action as an
obligation or deobligation under a specific programmatic listing in the
Catalog of Federal Domestic Assistance (CFDA, see Sec. 21.505). The
programmatic listing to be shown is the one that provided the funds
being obligated or deobligated. For example, if a grants officer or
agreements officer in one DoD Component obligates appropriations of a
second DoD Component's programmatic listing, the grants officer or
agreements officer must show the CFDA programmatic listing of the second
DoD Component on the DD Form 2566.
Sec. 21.555 When and how must DoD Components report to the DAADS?
DoD Components' central points must report:
(a) On a quarterly basis to DIOR, WHS. For the first three quarters
of the Federal fiscal year, the data are due by close-of-business (COB)
on the 15th day after the end of the quarter (i.e., first-quarter data
are due by COB on January 15th, second-quarter data by COB April 15th,
and third-quarter data by COB July 15th). Fourth-quarter data are due by
COB October 25th, the 25th day after the end of the quarter. If any due
date falls on a weekend or holiday, the data are due on the next regular
workday. The mailing address for DIOR, WHS is 1215 Jefferson Davis
Highway, Suite 1204, Arlington, VA 22202-4302.
(b) On a floppy diskette or by other means permitted either by the
instructions described in Sec. 21.530(b) or by agreement with the DIOR,
WHS. The data must be reported in the format specified in the
instructions.
Sec. 21.560 Must DoD Components assign numbers uniformly to awards?
Yes, DoD Components must assign identifying numbers to all awards
subject to this subpart, including grants, cooperative agreements, and
technology investment agreements. The uniform numbering system parallels
the procurement instrument identification (PII) numbering system
specified in 48 CFR 204.70 (in the ``Defense Federal Acquisition
Regulation Supplement''), as follows:
(a) The first six alphanumeric characters of the assigned number
must be identical to those specified by 48 CFR 204.7003(a)(1) to
identify the DoD Component and contracting activity.
(b) The seventh and eighth positions must be the last two digits of
the fiscal year in which the number is assigned to the grant,
cooperative agreement, or other nonprocurement instrument.
(c) The 9th position must be a number:
(1) ``1'' for grants.
(2) ``2'' for cooperative agreements, including technology
investment agreements that are cooperative agreements (see Appendix B to
32 CFR part 37).
[[Page 70]]
(3) ``3'' for other nonprocurement instruments, including technology
investment agreements that are not cooperative agreements.
(d) The 10th through 13th positions must be the serial number of the
instrument. DoD Components and contracting activities need not follow
any specific pattern in assigning these numbers and may create multiple
series of letters and numbers to meet internal needs for distinguishing
between various sets of awards.
Sec. 21.565 Must DoD Components' electronic systems accept Data Universal
Numbering System (DUNS) numbers?
The DoD Components must comply with paragraph 5.e of the Office of
Management and Budget (OMB) policy directive entitled, ``Requirement for
a DUNS number in the Applications for Federal Grants and Cooperative
Agreements \6\.'' Paragraph 5.e requires electronic systems that handle
information about grants and cooperative agreements (which, for the DoD,
include Technology Investment Agreements) to accept DUNS numbers. Each
DoD Component that awards for administers grants or cooperative
agreements must ensure that DUNS numbers are accepted by each such
system for which the DoD Component controls the system specifications.
If the specifications of such a system are subject to another
organization's control and the system can not accept DUNS numbers, the
DoD Component must alert that organization to the OMB policy directive's
requirement for use of DUNS numbers with a copy to: Director for Basic
Sciences, ODDR&E, 3040 Defense Pentagon, Washington, DC 20301-3040.
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\6\ This OMB policy directive is available at the Internet site
http://www.whitehouse.gov/omb/grants/grants.docs.html.
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[70 FR 49462, Aug. 23, 2005]
Effective Date Note: At 72 FR 34986, June 26, 2007, Sec. 21.565 was
revised, effective Aug. 27, 2007. For the convenience of the user, the
revised text is set forth as follows:
Sec. 21.565 Must DoD Components' electronic systems accept Data
Universal Numbering System (DUNS) numbers?
The DoD Components must comply with paragraph 5.e of the Office of
Management and Budget (OMB) policy directive entitled, ``Requirement for
a DUNS number in Applications for Federal Grants and Cooperative
Agreements.'' \6\ Paragraph 5.e requires electronic systems that handle
information about grants and cooperative agreements (which, for the DoD,
include Technology Investment Agreements) to accept DUNS numbers. Each
DoD Component that awards or administers grants or cooperative
agreements must ensure that DUNS numbers are accepted by each such
system for which the DoD Component controls the system specifications.
If the specifications of such a system are subject to another
organization's control and the system can not accept DUNS numbers, the
DoD Component must alert that organization to the OMB policy directive's
requirement for use of DUNS numbers with a copy to: Director for Basic
Sciences, ODDR&E, 3040 Defense Pentagon, Washington, DC 20301-3040.
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\6\ This OMB policy directive is available at the Internet site
http://www.whitehouse.gov/omb/grants/grants--docs.html.
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Subpart F_Definitions
Sec. 21.605 Acquisition.
The acquiring (by purchase, lease, or barter) of property or
services for the direct benefit or use of the United States Government
(see more detailed definition at 48 CFR 2.101). In accordance with 31
U.S.C. 6303, procurement contracts are the appropriate legal instruments
for acquiring such property or services.
Sec. 21.610 Agreements officer.
An official with the authority to enter into, administer, and/or
terminate technology investment agreements.
Sec. 21.615 Assistance.
The transfer of a thing of value to a recipient to carry out a
public purpose of support or stimulation authorized by a law of the
United States (see 31 U.S.C. 6101(3)). Grants, cooperative agreements,
and technology investment agreements are examples of legal instruments
used to provide assistance.
Sec. 21.620 Award.
A grant, cooperative agreement, technology investment agreement, or
other nonprocurement instrument subject to one or more parts of the DoD
[[Page 71]]
Grant and Agreement Regulations (see appendix A to this part).
Sec. 21.625 Contract.
See the definition for procurement contract in this subpart.
Sec. 21.630 Contracting activity.
An activity to which the Head of a DoD Component has delegated broad
authority regarding acquisition functions, pursuant to 48 CFR 1.601.
Sec. 21.635 Contracting officer.
A person with the authority to enter into, administer, and/or
terminate contracts and make related determinations and findings. A more
detailed definition of the term appears at 48 CFR 2.101.
Sec. 21.640 Cooperative agreement.
A legal instrument which, consistent with 31 U.S.C. 6305, is used to
enter into the same kind of relationship as a grant (see definition
``grant''), except that substantial involvement is expected between the
Department of Defense and the recipient when carrying out the activity
contemplated by the cooperative agreement. The term does not include
``cooperative research and development agreements'' as defined in 15
U.S.C. 3710a.
Sec. 21.645 Deviation.
The issuance or use of a policy or procedure that is inconsistent
with the DoDGARs.
Sec. 21.650 DoD Components.
The Office of the Secretary of Defense, the Military Departments,
the Defense Agencies, and DoD Field Activities.
Sec. 21.655 Grant.
A legal instrument which, consistent with 31 U.S.C. 6304, is used to
enter into a relationship:
(a) Of which the principal purpose is to transfer a thing of value
to the recipient to carry out a public purpose of support or stimulation
authorized by a law of the United States, rather than to acquire
property or services for the Department of Defense's direct benefit or
use.
(b) In which substantial involvement is not expected between the
Department of Defense and the recipient when carrying out the activity
contemplated by the grant.
Sec. 21.660 Grants officer.
An official with the authority to enter into, administer, and/or
terminate grants or cooperative agreements.
Sec. 21.665 Nonprocurement instrument.
A legal instrument other than a procurement contract. Examples
include instruments of financial assistance, such as grants or
cooperative agreements, and those of technical assistance, which provide
services in lieu of money.
Sec. 21.670 Procurement contract.
A legal instrument which, consistent with 31 U.S.C. 6303, reflects a
relationship between the Federal Government and a State, a local
government, or other recipient when the principal purpose of the
instrument is to acquire property or services for the direct benefit or
use of the Federal Government. See the more detailed definition for
contract at 48 CFR 2.101.
Sec. 21.675 Recipient.
An organization or other entity receiving an award from a DoD
Component.
Sec. 21.680 Technology investment agreements.
A special class of assistance instruments used to increase
involvement of commercial firms in defense research programs and for
other purposes related to integrating the commercial and defense sectors
of the nation's technology and industrial base. Technology investment
agreements include one kind of cooperative agreement with provisions
tailored for involving commercial firms, as well as one kind of other
assistance transaction. Technology investment agreements are described
more fully in 32 CFR part 37.
[[Page 72]]
Appendix A to Part 21--Instruments to Which DoDGARs Portions Apply
[GRAPHIC] [TIFF OMITTED] TR23AU05.027
[70 FR 49463, Aug. 23, 2005]
Effective Date Note: At 72 FR 34986, June 26, 2007, Appendix A to
part 21 was revised, effective Aug. 27, 2007. For the convenience of the
user, the revised text is set forth as follows:
Appendix A to Part 21--Instruments to Which DoDGARs Portions Apply
[[Page 73]]
[GRAPHIC] [TIFF OMITTED] TR26JN07.007
PART 22_DoD GRANTS AND AGREEMENTS_AWARD AND ADMINISTRATION--Table of Contents
Subpart A_General
Sec.
22.100 Purpose, relation to other parts, and organization.
22.105 Definitions.
Subpart B_Selecting the Appropriate Instrument
22.200 Purpose.
22.205 Distinguishing assistance from procurement.
22.210 Authority for providing assistance.
[[Page 74]]
22.215 Distinguishing grants and cooperative agreements.
22.220 Exemptions.
Subpart C_Competition
22.300 Purpose.
22.305 General policy and requirement for competition.
22.310 Statutes concerning certain research, development, and facilities
construction grants.
22.315 Merit-based, competitive procedures.
22.320 Special competitions.
22.325 Historically Black colleges and universities (HBCUs) and other
minority institutions (MIs).
Subpart D_Recipient Qualification Matters_General Policies and
Procedures
22.400 Purpose.
22.405 Policy.
22.410 Grants officers' responsibilities.
22.415 Standards.
22.420 Pre-award procedures.
Subpart E_National Policy Matters
22.505 Purpose.
22.510 Certifications, representations, and assurances.
22.515 Provisions of annual appropriations acts.
22.520 Campus access for military recruiting and Reserve Officer
Training Corps (ROTC).
22.525 Paperwork Reduction Act.
22.530 Metric system of measurement.
Subpart F_Award
22.600 Purpose.
22.605 Grants officers' responsibilities.
22.610 Award instruments.
Subpart G_Field Administration
22.700 Purpose.
22.705 Policy.
22.710 Assignment of grants administration offices.
22.715 Grants administration office functions.
Subpart H_Post-Award Administration
22.800 Purpose and relation to other parts.
22.805 Post-award requirements in other parts.
22.810 Payments.
22.815 Claims, disputes, and appeals.
22.820 Debt collection.
22.825 Closeout audits.
Appendix A to Part 22--Proposal Provision for Required Certification.
Appendix B to Part 22--Suggested Award Provisions for National Policy
Requirements That Often Apply.
Appendix C to Part 22--Administrative Requirements and Issues To Be
Addressed in Award Terms and Conditions.
Authority: 5 U.S.C. 301 and 10 U.S.C. 113.
Source: 63 FR 12164, Mar. 12, 1998, unless otherwise noted.
Subpart A_General
Sec. 22.100 Purpose, relation to other parts, and organization.
(a) This part outlines grants officers' and DoD Components'
responsibilities related to the award and administration of grants and
cooperative agreements.
(b) In doing so, it also supplements other parts of the DoD Grant
and Agreement Regulations (DoDGARs) that are either Governmentwide rules
or DoD implementation of Governmentwide guidance in Office of Management
and Budget (OMB) Circulars. Those other parts of the DoDGARs, which are
referenced as appropriate in this part, are:
(1) The Governmentwide rule on nonprocurement debarment and
suspension, in 32 CFR part 25.
(2) The Governmentwide rule on drug-free workplace requirements, in
32 CFR part 26.
(3) The Governmentwide rule on lobbying restrictions, in 32 CFR part
28.
(4) Administrative requirements for grants and agreements awarded to
specific types of recipients:
(i) For State and local governmental organizations, in the
Governmentwide rule at 32 CFR part 33.
(ii) For institutions of higher education and other nonprofit
organizations, at 32 CFR part 32.
(iii) For for-profit organizations, at 32 CFR part 34.
(c) The organization of this part parallels the award and
administration process, from pre-award through post-award matters. It
therefore is organized in the same manner as the parts of the DoDGARs
(32 CFR parts 32, 33, and 34) that prescribe administrative
[[Page 75]]
requirements for specific types of recipients.
[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49464, Aug. 23, 2005]
Effective Date Note: At 72 FR 34988, June 26, 2007, Sec. 22.100 was
amended by revising paragraph (b)(1), effective Aug. 27, 2007. For the
convenience of the user, the revised text is set forth as follows:
Sec. 22.100 Purpose, relation to other parts, and organization.
* * * * *
(b) * * *
(1) The DoD implementation, in 2 CFR part 1125, of OMB guidance on
nonprocurement debarment and suspension.
* * * * *
Sec. 22.105 Definitions.
Other than the terms defined in this section, terms used in this
part are defined in 32 CFR part 21, subpart F.
Administrative offset. An action whereby money payable by the United
States Government to, or held by the Government for, a recipient is
withheld to satisfy a delinquent debt the recipient owes the Government.
Advanced research. Advanced technology development that creates new
technology or demonstrates the viability of applying existing technology
to new products and processes in a general way. Advanced research is
most closely analogous to precompetitive technology development in the
commercial sector (i.e., early phases of research and development on
which commercial competitors are willing to collaborate, because the
work is not so coupled to specific products and processes that the
results of the work must be proprietary). It does not include
development of military systems and hardware where specific requirements
have been defined. It is typically funded in Advanced Technology
Development (Budget Activity 3 and Research Category 6.3A) programs
within Research, Development, Test and Evaluation (RDT&E).
Applied research. Efforts that attempt to determine and exploit the
potential of scientific discoveries or improvements in technology such
as new materials, devices, methods and processes. It typically is funded
in Applied Research (Budget Activity 2 and Research Category 6.2)
programs within Research, Development, Test and Evaluation (RDT&E).
Applied research normally follows basic research but may not be fully
distinguishable from the related basic research. The term does not
include efforts whose principal aim is the design, development, or
testing of specific products, systems or processes to be considered for
sale or acquisition; these efforts are within the definition of
``development.''
Basic research. Efforts directed toward increasing knowledge and
understanding in science and engineering, rather than the practical
application of that knowledge and understanding. It typically is funded
within Basic Research (Budget Activity 1 and Research Category 6.1)
programs within Research, Development, Test and Evaluation (RDT&E). For
the purposes of this part, basic research includes:
(1) Research-related, science and engineering education, including
graduate fellowships and research traineeships.
(2) Research instrumentation and other activities designed to
enhance the infrastructure for science and engineering research.
Claim. A written demand or written assertion by one of the parties
to a grant or cooperative agreement seeking as a matter of right, the
payment of money in a sum certain, the adjustment or interpretation of
award terms, or other relief arising under or relating to a grant or
cooperative agreement. A routine request for payment that is not in
dispute when submitted is not a claim. The submission may be converted
to a claim by written notice to the grants officer if it is disputed
either as to liability or amount, or is not acted upon in a reasonable
time.
Debt. Any amount of money or any property owed to a Federal Agency
by any person, organization, or entity except another United States
Federal Agency. Debts include any amounts due from insured or guaranteed
loans, fees, leases, rents, royalties, services, sales of real or
personal property, or overpayments, penalties, damages, interest, fines
and forfeitures, and all other claims and similar sources.
[[Page 76]]
Amounts due a nonappropriated fund instrumentality are not debts owed
the United States, for the purposes of this subchapter.
Delinquent debt. A debt:
(1) That the debtor fails to pay by the date specified in the
initial written notice from the agency owed the debt, normally within 30
calendar days, unless the debtor makes satisfactory payment arrangements
with the agency by that date; and
(2) With respect to which the debtor has elected not to exercise any
available appeals or has exhausted all agency appeal processes.
Development. The systematic use of scientific and technical
knowledge in the design, development, testing, or evaluation of
potential new products, processes, or services to meet specific
performance requirements or objectives. It includes the functions of
design engineering, prototyping, and engineering testing.
Electronic commerce. The conduct of business through the use of
automation and electronic media, in lieu of paper transactions, direct
personal contact, telephone, or other means. For grants and cooperative
agreements, electronic commerce can include the use of electronic data
interchange, electronic mail, electronic bulletin board systems, and
electronic funds transfer for: program announcements or solicitations;
applications or proposals; award documents; recipients' requests for
payment; payment authorizations; and payments.
Electronic data interchange. The exchange of standardized
information communicated electronically between business partners,
typically between computers. It is DoD policy that DoD Component EDI
applications conform to the American National Standards Institute
(ANSI), Accredited Standards Committee (ASC) X-12 standard.\1\
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\1\ Available from Accredited Standards Committee, X-12 Secretariat,
Data Interchange Standards Association, 1800 Diagonal Road, Suite 355,
Alexandria, VA 22314-2852; Attention: Manager Maintenance and
Publications.
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Electronic funds transfer. A system that provides the authority to
debit or credit accounts in financial institutions by electronic means
rather than source documents (e.g., paper checks). Processing typically
occurs through the Federal Reserve System and/or the Automated Clearing
House (ACH) computer network. It is DoD policy that DoD Component EFT
transmissions conform to the American National Standards Institute
(ANSI), Accredited Standards Committee (ASC) X-12 standard.
Historically Black colleges and universities. Institutions of higher
education determined by the Secretary of Education to meet the
requirements of 34 CFR 608.2. Each DoD Component's contracting
activities and grants officers may obtain a list of historically Black
colleges and universities from that DoD Component's Small and
Disadvantaged Business Utilization office.
Institution of higher education. An educational institution that
meets the criteria in section 1201(a) of the Higher Education Act of
1965 (20 U.S.C. 1141(a)). Note, however, that institution of higher
education has a different meaning in Sec. 22.520, as given at Sec.
22.520(b)(2).
Minority institutions. Institutions of higher education that meet
the criteria for minority institutions specified in 10 U.S.C. 2323. Each
DoD Component's contracting activities and grants officers may obtain
copies of a current list of institutions that qualify as minority
institutions under 10 U.S.C. 2323 from that DoD Component's Small and
Disadvantaged Business Utilization office (the list of minority
institutions changes periodically, based on Department of Education data
on institutions' enrollments of minority students).
Research. Basic, applied, and advanced research, as defined in this
section.
Subaward. An award of financial assistance in the form of money, or
property in lieu of money, made under a DoD grant or cooperative
agreement by a recipient to an eligible subrecipient. The term includes
financial assistance for substantive program performance by the
subrecipient of a portion of the program for which the DoD grant or
cooperative agreement was made. It
[[Page 77]]
does not include the recipient's procurement of goods and services
needed to carry out the program.
[63 FR 12164, Mar. 12, 1998, as amended at 68 FR 47160, Aug. 7, 2003]
Subpart B_Selecting the Appropriate Instrument
Sec. 22.200 Purpose.
This subpart provides the bases for determining the appropriate type
of instrument in a given situation.
Sec. 22.205 Distinguishing assistance from procurement.
Before using a grant or cooperative agreement, the grants officer
shall make a positive judgment that an assistance instrument, rather
than a procurement contract, is the appropriate instrument, based on the
following:
(a) Purpose. (1) The grants officer must judge that the principal
purpose of the activity to be carried out under the instrument is to
stimulate or support a public purpose (i.e., to provide assistance),
rather than acquisition (i.e., to acquire goods and services for the
direct benefit of the United States Government). If the principal
purpose is acquisition, then the grants officer shall judge that a
procurement contract is the appropriate instrument, in accordance with
31 U.S.C. chapter 63 (``Using Procurement Contracts and Grant and
Cooperative Agreements''). Assistance instruments shall not be used in
such situations, except:
(i) When a statute specifically provides otherwise; or
(ii) When an exemption is granted, in accordance with Sec. 22.220.
(2) For research and development, the appropriate use of grants and
cooperative agreements therefore is almost exclusively limited to the
performance of selected basic, applied, and advanced research projects.
Development projects nearly always shall be performed by contract or
other acquisition transaction because their principal purpose is the
acquisition of specific deliverable items (e.g., prototypes or other
hardware) for the benefit of the Department of Defense.
(b) Fee or profit. Payment of fee or profit is consistent with an
activity whose principal purpose is the acquisition of goods and
services for the direct benefit or use of the United States Government,
rather than an activity whose principal purpose is assistance.
Therefore, the grants officer shall use a procurement contract, rather
than an assistance instrument, in all cases where:
(1) Fee or profit is to be paid to the recipient of the instrument;
or
(2) The instrument is to be used to carry out a program where fee or
profit is necessary to achieving program objectives.
Sec. 22.210 Authority for providing assistance.
(a) Before a grant or cooperative agreement may be used, the grants
officer must:
(1) Identify the program statute, the statute that authorizes the
DoD Component to carry out the activity the principal purpose of which
is assistance (see 32 CFR 21.410 through 21.420.
(2) Review the program statute to determine if it contains
requirements that affect the:
(i) Solicitation, selection, and award processes. For example,
program statutes may authorize assistance to be provided only to certain
types of recipients; may require that recipients meet certain other
criteria to be eligible to receive assistance; or require that a
specific process shall be used to review recipients' proposals.
(ii) Terms and conditions of the award. For example, some program
statutes require a specific level of cost sharing or matching.
(b) The grants officer shall ensure that the award of DoD
appropriations through a grant or cooperative agreement for a research
project meets the standards of 10 U.S.C. 2358, DoD's broad authority to
carry out research, even if the research project is authorized under a
statutory authority other than 10 U.S.C. 2358. The standards of 10
U.S.C. 2358 are that, in the opinion of the Head of the DoD Component or
his or her designee, the projects must be:
(1) Necessary to the responsibilities of the DoD Component.
[[Page 78]]
(2) Related to weapons systems and other military needs or of
potential interest to the DoD Component.
[63 FR 12164, Mar. 12, 1998, as amended at 68 FR 47160, Aug. 7, 2003]
Sec. 22.215 Distinguishing grants and cooperative agreements.
(a) Once a grants officer judges, in accordance with Sec. Sec.
22.205 and 22.210, that either a grant or cooperative agreement is the
appropriate instrument, the grants officer shall distinguish between the
two instruments as follows:
(1) Grants shall be used when the grants officer judges that
substantial involvement is not expected between the Department of
Defense and the recipient when carrying out the activity contemplated in
the agreement.
(2) Cooperative agreements shall be used when the grants officer
judges that substantial involvement is expected. The grants officer
should document the nature of the substantial involvement that led to
selection of a cooperative agreement. Under no circumstances are
cooperative agreements to be used solely to obtain the stricter controls
typical of a contract.
(b) In judging whether substantial involvement is expected, grants
officers should recognize that ``substantial involvement'' is a
relative, rather than an absolute, concept, and that it is primarily
based on programmatic factors, rather than requirements for grant or
cooperative agreement award or administration. For example, substantial
involvement may include collaboration, participation, or intervention in
the program or activity to be performed under the award.
Sec. 22.220 Exemptions.
Under 31 U.S.C. 6307, ``the Director of the Office of Management and
Budget may exempt an agency transaction or program'' from the
requirements of 31 U.S.C. chapter 63. Grants officers shall request such
exemptions only in exceptional circumstances. Each request shall specify
for which individual transaction or program the exemption is sought; the
reasons for requesting an exemption; the anticipated consequences if the
exemption is not granted; and the implications for other agency
transactions and programs if the exemption is granted. The procedures
for requesting exemptions shall be:
(a) In cases where 31 U.S.C. chapter 63 would require use of a
contract and an exemption from that requirement is desired:
(1) The grants officer shall submit a request for exemption, through
appropriate channels established by his or her DoD Component (see 32 CFR
21.320(a)), to the Director of Defense Procurement and Acquisition
Policy (DDP&AP).
(2) The DDP&AP, after coordination with the Director of Defense
Research and Engineering (DDR&E), shall transmit the request to OMB or
notify the DoD Component that the request has been disapproved.
(b) In other cases, the DoD Component shall submit a request for the
exemption through appropriate channels to the DDR&E. The DDR&E shall
transmit the request to OMB or notify the DoD Component that the request
has been disapproved.
(c) Where an exemption is granted, documentation of the approval
shall be maintained in the award file.
[63 FR 12164, Mar. 12, 1998, as amended at 68 FR 47160, Aug. 7, 2003; 70
FR 49464, Aug. 23, 2005]
Subpart C_Competition
Sec. 22.300 Purpose.
This subpart establishes DoD policy and implements statutes related
to the use of competitive procedures in the award of grants and
cooperative agreements.
Sec. 22.305 General policy and requirement for competition.
(a) It is DoD policy to maximize use of competition in the award of
grants and cooperative agreements. This also conforms with:
(1) 31 U.S.C. 6301(3), which encourages the use of competition in
awarding all grants and cooperative agreements.
(2) 10 U.S.C. 2374(a), which sets out Congressional policy that any
new grant for research, development, test, or evaluation be awarded
through merit-based selection procedures.
[[Page 79]]
(b) Grants officers shall use merit-based, competitive procedures
(as defined by Sec. 22.315) to award grants and cooperative agreements:
(1) In every case where required by statute (e.g., 10 U.S.C. 2361,
as implemented in Sec. 22.310, for certain grants to institutions of
higher education).
(2) To the maximum extent practicable in all cases where not
required by statute.
Sec. 22.310 Statutes concerning certain research, development, and
facilities construction grants.
(a) Definitions specific to this section. For the purposes of
implementing the requirements of 10 U.S.C. 2374 in this section, the
following terms are defined:
(1) Follow-on grant. A grant that provides for continuation of
research and development performed by a recipient under a preceding
grant. Note that follow-on grants are distinct from incremental funding
actions during the period of execution of a multi-year award.
(2) New grant. A grant that is not a follow-on grant.
(b) Statutory requirement to use competitive procedures. (1) A
grants officer shall not award a grant by other than merit-based,
competitive procedures (as defined by Sec. 22.315) to an institution of
higher education for the performance of research and development or for
the construction of research or other facilities, unless:
(i) In the case of a new grant for research and development, there
is a statute meeting the criteria in paragraph (c)(1) of this section;
(ii) In the case of a follow-on grant for research and development,
or of a grant for the construction of research or other facilities,
there is a statute meeting the criteria in paragraph (c)(2) of this
section; and
(iii) The Secretary of Defense submits to Congress a written notice
of intent to make the grant. The grant may not be awarded until 180
calendar days have elapsed after the date on which Congress received the
notice of intent. Contracting activities must submit a draft notice of
intent with supporting documentation through channels to the Deputy
Director, Defense Research and Engineering.
(2) Because subsequently enacted statutes may, by their terms,
impose different requirements than set out in paragraph (b)(1) of this
section, grants officers shall consult legal counsel on a case-by-case
basis, when grants for the performance of research and development or
for the construction of research or other facilities are to be awarded
to institutions of higher education by other than merit-based
competitive procedures.
(c) Subsequent statutes. In accordance with 10 U.S.C. 2361 and 10
U.S.C. 2374, a provision of law may not be construed as requiring the
award of a grant through other than the merit-based, competitive
procedures described in Sec. 22.315, unless:
(1) Institutions of higher education--new grants for research and
development. In the case of a new grant for research and development to
an institution of higher education, such provision of law specifically:
(i) Identifies the particular institution of higher education
involved;
(ii) States that such provision of law modifies or supersedes the
provisions of 10 U.S.C. 2361 (a requirement that applies only if the
statute authorizing or requiring award by other than competitive
procedures was enacted after September 30, 1989); and
(iii) States that the award to the institution of higher education
involved is required by such provision of law to be made in
contravention of the policy set forth in 10 U.S.C. 2374(a).
(2) Institutions of higher education--follow-on grants for research
and development and grants for the construction of any research or other
facility. In the case of any such grant to an institution of higher
education, such provision of law specifically:
(i) Identifies the particular institution of higher education
involved; and
(ii) States that such provision of law modifies or supersedes the
provisions of 10 U.S.C. 2361 (a requirement that applies only if the
statute authorizing or requiring award by other than competitive
procedures was enacted after September 30, 1989).
(3) Other entities--new grants for research and development--(i)
General. In
[[Page 80]]
the case of a new grant for research and development to an entity other
than an institution of higher education, such provision of law
specifically:
(A) Identifies the particular entity involved;
(B) States that the award to that entity is required by such
provision of law to be made in contravention of the policy set forth in
10 U.S.C. 2374(a).
(ii) Exception. The requirement of paragraph (c)(3)(i) of this
section does not apply to any grant that calls upon the National Academy
of Sciences to:
(A) Investigate, examine, or experiment upon any subject of science
or art of significance to the Department of Defense or any Military
Department; and
(B) Report on such matters to the Congress or any agency of the
Federal Government.
Sec. 22.315 Merit-based, competitive procedures.
Competitive procedures are methods that encourage participation in
DoD programs by a broad base of the most highly qualified performers.
These procedures are characterized by competition among as many eligible
proposers as possible, with a published or widely disseminated notice.
Competitive procedures include, as a minimum:
(a) Notice to prospective proposers. The notice may be a notice of
funding availability or Broad Agency Announcement that is publicly
disseminated, with unlimited distribution, or a specific notice that is
distributed to eligible proposers (a specific notice must be distributed
to at least two eligible proposers to be considered as part of a
competitive procedure). Requirements for notices are as follows:
(1) The format and content of each notice must conform with the
Governmentwide format for announcements of funding opportunities
established by the Office of Management and Budget (OMB) in a policy
directive entitled, ``Format for Financial Assistance Program
Announcements.'' \2\
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\2\ This OMB policy directive is available at the Internet site
http://www.whitehouse.gov/omb/grants/grants.docs.html.
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(2) In accordance with that OMB policy directive, DoD Components
also must post on the Internet any notice under which domestic entitles
may submit proposals, if the distribution of the notice is unlimited.
DoD Components are encouraged to simultaneously publish the notice in
other media (e.g., the Federal Register), if doing so would increase the
likelihood of its being seen by potential proposers. If a DoD Component
issues a specific notice with limited distribution (e.g. for national
security considerations), the notice need not be posted on the Internet.
(3) To comply with an OMB policy directive entitled, ``Requirement
to Post Funding Opportunity Announcement Synopses at Grants.gov and
Related Data Elements/Format,'' \3\ DoD Components must post on the
Internet a synopsis for each notice that, in accordance with paragraph
(a)(2) of this section, is posted on the Internet. The synopsis must be
posted at the Governmentwide site designated by the OMB (currently
http://www.FedGrants.gov). The synopsis for each notice must provide
complete instructions on where to obtain the notice and should have an
electronic link to the Internet location at which the notice is posted.
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\3\ This OMB policy directive is available at the Internet site
http://www.whitehouse.gov/omb/grants/grants.docs.html.
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\3\ This OMB policy directive is available at the Internet site
http://www.whitehouse.gov/omb/grants/grants.docs.html.
(4) In accordance with an OMB policy directive entitled,
``Requirement for a DUNS Number in Applications for Federal Grants and
Cooperative Agreements,'' \4\ each notice must include a requirement for
proposers to include Data Universal Numbering System (DUNS) numbers in
their proposals. If a notice provides for submission of application
forms, the forms must incorporate the DUNS number. To the extent that
unincorporated consortia of separate organizations may submit proposals,
the notice should explain that an unincorporated consortium
[[Page 81]]
would use the DUNS number of the entity proposed to receive DoD payments
under the award (usually, a lead organization that consortium members
identify for administrative matters).
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\4\ This OMB policy directive is available at the Internet site
http://www.whitehouse.gov/omb/grants/grants.docs.html.
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(b) At least two eligible, prospective proposers.
(c) Impartial review of the merits of applications or proposals
received in response to the notice, using the evaluation method and
selection criteria described in the notice. For research and development
awards, in order to be considered as part of a competitive procedure,
the two principal selection criteria, unless statute provides otherwise,
must be the:
(1) Technical merits of the proposed research and development; and
(2) Potential relationship of the proposed research and development
to Department of Defense missions.
[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49464, Aug. 23, 2005]
Effective Date Note: At 72 FR 34988, June 26, 2007, Sec. 22.315 was
amended by revising paragraph (a)(2), and footnotes 2, 3, and 4,
effective Aug. 27, 2007. For the convenience of the user, the revised
text is set forth as follows:
Sec. 22.315 Merit-based, competitive procedures.
* * * * *
(a) * * *
(2) In accordance with that OMB policy directive, DoD Components
also must post on the Internet any notice under which domestic entities
may submit proposals, if the distribution of the notice is unlimited.
DoD Components are encouraged to simultaneously publish the notice in
other media (e.g., the Federal Register), if doing so would increase the
likelihood of its being seen by potential proposers. If a DoD Component
issues a specific notice with limited distribution (e.g., for national
security considerations), the notice need not be posted on the Internet.
* * * * *
\2\ This OMB policy directive is available at the Internet site
http://www.whitehouse.gov/omb/grants/grants--docs.html (the link is
``Final Policy Directive on Financial Assistance Program
Announcements'').
\3\ This OMB policy directive is available at the Internet site
http://www.whitehouse.gov/omb/grants/grants--docs.html (the link is
``Office of Federal Financial Management Policy Directive on Use of
Grants.Gov FIND'').
\4\ This OMB policy directive is available at the Internet site
http://www.whitehouse.gov/omb/grants/grants--docs.html (the link is
``Use of a Universal Identifier by Grant Applicants'').
Sec. 22.320 Special competitions.
Some programs may be competed for programmatic or policy reasons
among specific classes of potential recipients. An example would be a
program to enhance U.S. capabilities for academic research and research-
coupled graduate education in defense-critical, science and engineering
disciplines, a program that would be competed specifically among
institutions of higher education. All such special competitions shall be
consistent with program representations in the President's budget
submission to Congress and with subsequent Congressional authorizations
and appropriations for the programs.
Sec. 22.325 Historically Black colleges and universities (HBCUs) and other
minority institutions (MIs).
Increasing the ability of HBCUs and MIs to participate in federally
funded, university programs is an objective of Executive Order 12876 (3
CFR, 1993 Comp., p. 671) and 10 U.S.C. 2323. Grants officers shall
include appropriate provisions in Broad Agency Announcements (BAAs) or
other announcements for programs in which awards to institutions of
higher education are anticipated, in order to promote participation of
HBCUs and MIs in such programs. Also, whenever practicable, grants
officers shall reserve appropriate programmatic areas for exclusive
competition among HBCUs and MIs when preparing announcements for such
programs.
Subpart D_Recipient Qualification Matters_General Policies and
Procedures
Sec. 22.400 Purpose.
The purpose of this subpart is to specify policies and procedures
for grants officers' determination of recipient qualifications prior to
award.
[[Page 82]]
Sec. 22.405 Policy.
(a) General. Grants officers normally shall award grants or
cooperative agreements only to qualified recipients that meet the
standards in Sec. 22.415. This practice conforms with the
Governmentwide policy, stated at 32 CFR 25.110(a), to do business only
with responsible persons.
(b) Exception. In exceptional circumstances, grants officers may
make awards to recipients that do not fully meet the standards in Sec.
22.415 and include special award conditions that are appropriate to the
particular situation, in accordance with 32 CFR 32.14, 33.12, or 34.4.
[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49464, Aug. 23, 2005]
Effective Date Note: At 72 FR 34988, June 26, 2007, Sec. 22.405(a)
was amended by revising the sentence ``Governmentwide policy, stated at
32 CFR 25.110(a), to do business only with responsible persons'' to read
``Governmentwide policy to do business only with responsible persons,
which is stated in OMB guidance at 2 CFR 180.125(a) and implemented by
the Department of Defense in 2 CFR part 1125'', effective Aug. 27, 2007.
Sec. 22.410 Grants officers' responsibilities.
The grants officer is responsible for determining a recipient's
qualification prior to award. The grants officer's signature on the
award document shall signify his or her determination that either:
(a) The potential recipient meets the standards in Sec. 22.415 and
is qualified to receive the grant or cooperative agreement; or
(b) An award is justified to a recipient that does not fully meet
the standards, pursuant to Sec. 22.405(b). In such cases, grants
officers shall document in the award file the rationale for making an
award to a recipient that does not fully meet the standards.
Sec. 22.415 Standards.
To be qualified, a potential recipient must:
(a) Have the management capability and adequate financial and
technical resources, given those that would be made available through
the grant or cooperative agreement, to execute the program of activities
envisioned under the grant or cooperative agreement.
(b) Have a satisfactory record of executing such programs or
activities (if a prior recipient of an award).
(c) Have a satisfactory record of integrity and business ethics.
(d) Be otherwise qualified and eligible to receive a grant or
cooperative agreement under applicable laws and regulations (see Sec.
22.420(c)).
Sec. 22.420 Pre-award procedures.
(a) The appropriate method to be used and amount of effort to be
expended in deciding the qualification of a potential recipient will
vary. In deciding on the method and level of effort, the grants officer
should consider factors such as:
(1) DoD's past experience with the recipient;
(2) Whether the recipient has previously received cost-type
contracts, grants, or cooperative agreements from the Federal
Government; and
(3) The amount of the prospective award and complexity of the
project to be carried out under the award.
(b) There is no DoD-wide requirement to obtain a pre-award credit
report, audit, or any other specific piece of information. On a case-by-
case basis, the grants officer will decide whether there is a need to
obtain any such information to assist in deciding whether the recipient
meets the standards in Sec. 22.415 (a), (b), and (c).
(1) Should the grants officer in a particular case decide that a
pre-award credit report, audit, or survey is needed, he or she should
consult first with the appropriate grants administration office
(identified in Sec. 22.710), and decide whether pre-existing surveys or
audits of the recipient, such as those of the recipient's internal
control systems under OMB Circular A-133 \5\ will satisfy the need (see
Sec. 22.715(a)(1)).
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\5\ Electronic copies may be obtained at Internet site http://
www.whitehouse.gov/OMB. For paper copies, contact the Office of
Management and Budget, EOP Publications, 725 17th St. NW., New Executive
Office Building, Washington, DC 20503.
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(2) If, after consulting with the grants administration office, the
grants officer decides to obtain a credit report, audit, or other
information, and
[[Page 83]]
the report or other information discloses that a potential recipient is
delinquent on a debt to an agency of the United States Government, then:
(i) The grants officer shall take such information into account when
determining whether the potential recipient is qualified with respect to
the grant or cooperative agreement; and
(ii) If the grants officer decides to make the award to the
recipient, unless there are compelling reasons to do otherwise, the
grants officer shall delay the award of the grant or cooperative
agreement until payment is made or satisfactory arrangements are made to
repay the debt.
(c) In deciding whether a recipient is otherwise qualified and
eligible in accordance with the standard in Sec. 22.415(d), the grants
officer shall ensure that the potential recipient:
(1) Is not identified in the Governmentwide Excluded Parties List
System (EPLS) as being debarred, suspended, or otherwise ineligible to
receive the award. (In addition to being a requirement for every new
award, note that checking the EPLS also is a requirement for subsequent
obligations of additional funds, such as incremental funding actions,
for pre-existing awards to institutions of higher education, as
described at 32 CFR 22.520(e)(2).) The grants officer's responsibilities
include (see 32 CFR 25.425 and 25.430) checking the EPLS for:
(i) Potential recipients of prime awards; and
(ii) A recipient's principals (as defined at 32 CFR 25.995),
potential recipients of subawards, and principals of those potential
subaward recipients, if DoD Component approval of those principals of
lower-tier recipients is required under the terms of the award (e.g., if
a subsequent change in a recipient's principal investigator or other key
person would be subject to the DoD Component's prior approval under 32
CFR 32.25(c)(2), 33.30(d)(3), or 34.15(c)(i)).
(2) Has provided all certifications and assurances required by
Federal statute, Executive order, or codified regulation, unless they
are to be addressed in award terms and conditions at the time of award
(see Sec. 22.510).
(3) Meets any eligibility criteria that may be specified in the
statute authorizing the specific program under which the award is being
made (see Sec. 22.210(a)(2)).
(d) Grants officers shall obtain each recipient's Taxpayer
Identification Number (TIN, which may be the Social Security Number for
an individual and Employer Identification Number for a business or non-
profit entity) and notify the recipient that the TIN is being obtained
for purposes of collecting and reporting on any delinquent amounts that
may arise out of the recipient's relationship with the Government.
Obtaining the TIN and so notifying the recipient is a statutory
requirement of 31 U.S.C. 7701, as amended by the Debt Collection
Improvement Act of 1996 (section 31001(i)(1), Pub. L. 104-134).
[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49464, Aug. 23, 2005]
Effective Date Note: At 72 FR 34988, June 26, 2007, Sec. 22.420 was
amended by revising paragraph (c)(1), effective Aug. 27, 2007. For the
convenience of the user, the revised text is set forth as follows:
Sec. 22.420 Pre-award procedures.
* * * * *
(c) * * *
(1) Is not identified in the Governmentwide Excluded Parties List
System (EPLS) as being debarred, suspended, or otherwise ineligible to
receive the award. In addition to being a requirement for every new
award, note that checking the EPLS also is a requirement for subsequent
obligations of additional funds, such as incremental funding actions, in
the case of pre-existing awards to institutions of higher education, as
described at 32 CFR 22.520(e)(5). The grants officer's responsibilities
include (see the OMB guidance at 2 CFR 180.425 and 180.430, as
implemented by the Department of Defense at 2 CFR 1125.425) checking the
EPLS for:
(i) Potential recipients of prime awards; and
(ii) A recipient's principals (as defined in OMB guidance at 2 CFR
180.995, implemented by the Department of Defense in 2 CFR part 1125),
potential recipients of subawards, and principals of those potential
subaward recipients, if DoD Component approval of those principals or
lower-tier recipients is required under the terms of the award (e.g., if
a subsequent change in a recipient's principal investigator or other key
person would be subject to the DoD Component's prior approval
[[Page 84]]
under 32 CFR 32.25(c)(2), 33.30(d)(3), or 34.15(c)(2)(i)).
* * * * *
Subpart E_National Policy Matters
Sec. 22.505 Purpose.
The purpose of this subpart is to supplement other regulations that
implement national policy requirements, to the extent that it is
necessary to provide additional guidance to DoD grants officers. The
other regulations that implement national policy requirements include:
(a) The other parts of the DoDGARs (32 CFR parts 32, 33, and 34)
that implement the Governmentwide guidance in OMB Circulars A-102 \6\
and A-110 \7\ on administrative requirements for grants and cooperative
agreements. Those parts address some national policy matters that appear
in the OMB Circulars.
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\6\ See footnote 5 to Sec. 22.420(b)(1).
\7\ See footnote 5 to Sec. 22.420(b)(1).
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(b) DoD regulations other than the DoDGARs.
(c) Other Federal agencies' regulations.
[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49464, Aug. 23, 2005]
Sec. 22.510 Certifications, representations, and assurances.
(a) Certifications--(1) Policy. Certifications of compliance with
national policy requirements are to be obtained from recipients only for
those national policies where a statute, Executive order, or codified
regulation specifically states that a certification is required. Other
national policy requirements may be addressed by obtaining
representations or assurances (see paragraph (b) of this section).
Grants officers should utilize methods for obtaining certifications, in
accordance with Executive Order 12866 (3 CFR, 1993 Comp., p. 638), that
minimize administration and paperwork.
(2) Procedures. (i) When necessary, grants officers may obtain
individual, written certifications.
(ii) Whenever possible, and to the extent consistent with statute
and codified regulation, grants officers should identify the
certifications that are required for the particular type of recipient
and program, and consolidate them into a single certification provision
that cites them by reference.
(A) If a grants officer elects to have proposers incorporate
certifications by reference into their proposals, he or she must do so
in one of the two following ways. When required by statute or codified
regulation, the solicitation must include the full text of the
certifications that proposers are to provide by reference. In other
cases, the grants officer may include language in the solicitation that
informs the proposers where the full text may be found (e.g., in
documents or computer network sites that are readily available to the
public) and offers to provide it to proposers upon request.
(B) Appendix A to this part provides language that may be used for
incorporating by reference the certification on lobbying, which
currently is the only certification requirement that commonly applies to
DoD grants and agreements. Because that certification is required by law
to be submitted at the time of proposal, rather than at the time of
award, Appendix A includes language to incorporate the certification by
reference into a proposal.
(C) Grants officers may incorporate certifications by reference in
award documents when doing so is consistent with statute and codified
regulation (that is not the case for the lobbying certification
addressed in paragraph (a)(2)(ii)(B) of this section). The provision
that a grants officer would use to incorporate certifications in award
documents, when consistent with statute and codified regulation, would
be similar to the provision in Appendix A to this part, except that it
would be modified to state that the recipient is providing the required
certifications by signing the award document or by accepting funds under
the award.
(b) Representations and assurances. Many national policies, either
in statute or in regulation, require recipients of grants and
cooperative agreements to make representations or provide assurances
(rather than certifications) that they are in compliance with the
policies. As discussed in Sec. 22.610(b), Appendix B to this part
suggests award
[[Page 85]]
terms and conditions that may be used to address several of the more
commonly applicable national policy requirements. These terms and
conditions may be used to obtain required assurances and
representations, if the grants officer wishes to do so at the time of
award, rather than through the use of the standard application form (SF-
424 \8\) or other means at the time of proposal.
---------------------------------------------------------------------------
\8\ For copies of Standard Forms listed in this part, contact
regional grants administration offices of the Office of Naval Research.
Addresses for the offices are listed in the ``Federal Directory of
Contract Administration Services (CAS) Components,'' which may be
accessed through the Defense Contract Management Agency homepage at:
http://www.dcma.mil.
[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49464, Aug. 23, 2005]
Sec. 22.515 Provisions of annual appropriations acts.
An annual appropriations act can include general provisions stating
national policy requirements that apply to the use of funds (e.g.,
obligation through a grant or cooperative agreement) appropriated by the
act. Because these requirements are of limited duration (the period
during which a given year's appropriations are available for
obligation), and because they can vary from year to year and from one
agency's appropriations act to another agency's, the grants officer must
know the agency(ies) and fiscal year(s) of the appropriations being
obligated by a given grant or cooperative agreement, and may need to
consult legal counsel if he or she does not know the requirements
applicable to those appropriations.
Sec. 22.520 Campus access for military recruiting and Reserve Officer
Training Corps (ROTC).
(a) Purpose. (1) The purpose of this section is to implement 10
U.S.C. 983 as it applies to grants. Under that statute, DoD Components
are prohibited from providing funds to institutions of higher education
that have policies or practices, as described in paragraph (c) of this
section, restricting campus access of military recruiters or the Reserve
Officer Training Corps (ROTC).
(2) By addressing the effect of 10 U.S.C. 983 on grants and
cooperative agreements, this section supplements the DoD's primary
implementation of that statute in 32 CFR part 216, ``Military Recruiting
and Reserve Officer Training Corps Program Access to Institutions of
Higher Education.'' Part 216 establishes procedures by which the
Department of Defense identifies institutions of higher education that
have a policy or practice described in paragraph (c) of this section.
(b) Definition specific to this section. ``Institution of higher
education'' in this section has the meaning given at 32 CFR 216.3, which
is different than the meaning given at Sec. 22.105 for other sections
of this part.
(c) Statutory requirement of 10 U.S.C. 983. No funds made available
to the Department of Defense may be provided by grant to an institution
of higher education (including any subelement of such institution) if
the Secretary of Defense determines that the institution (or any
subelement of that institution) has a policy or practice that either
prohibits, or in effect prevents:
(1) The Secretary of a Military Department from maintaining,
establishing, or operating a unit of the Senior ROTC (in accordance with
10 U.S.C. 654 and other applicable Federal laws) at that institution (or
any subelement of that institution);
(2) A student at that institution (or any subelement of that
institution) from enrolling in a unit of the Senior ROTC at another
institution of higher education;
(3) The Secretary of a Military Department of Secretary of Homeland
Security from gaining access to campuses, or access to student (who are
17 years of age or older) or campuses, for purposes of military
recruiting in a manner that is at least equal in quality and scope of
the access to campuses and to students that is provided to any other
employer; or
(4) Access by military recruiters for purposes of military
recruiting to the following information pertaining to students (who are
17 years of age or older) enrolled at that institution (or any
subelement of that institution);
(i) Name, address, and telephone listings.
[[Page 86]]
(ii) Date and place of birth, levels of education, academic majors,
degrees received, and the most recent education institution enrolled in
by the student.
(d) Policy. (1) Applicability to cooperative agreements. As a matter
of DoD policy, the restriction of 10 U.S.C. 983, as implemented by 32
CFR part 216, apply to cooperative agreements, as well as grants.
(2) Deviations. Grants officers may not deviate from any provision
of this section without obtaining the prior approval of the Director of
Defense Research and Engineering. Requests for deviations shall be
submitted, through appropriate channels, to: Director for Basic
Sciences, ODUSD(LABS), 3040 Defense Pentagon, Washington, D.C. 20301-
3040.
(e) Grants officers' responsibility. (1) A grants officers shall not
award any grant or cooperative agreements to an institution of higher
education that has been identified pursuant to the procedures of 32 CFR
part 216. Such institutions are identified as being ineligible on the
Governmentwide Excluded Parts List System (EPLS). The cause and
treatment code on the EPLS indicates the reason for an institution's
ineligibility, as well as the effect of the exclusion. Note that 32 CFR
25.425 and 25.430 require a grants officers to check the EPLS prior to
determining that a recipient is qualified to receive an award.
(2) A grants officer shall not consent to a subaward of DoD funds to
such an institution, under a grant or cooperative agreement to any
recipient, if the subaward requires the grants officer's consent.
(3) A grants officers shall include the following award term in each
grant or cooperative agreements with an institution of higher education
(note that this requirement does not flow down and that recipients are
not required to include the award term in subawards):
``As a condition for receipt of funds available to the Department of
Defense (DoD) under this award, the recipient agrees that it is not an
institution of higher education (as defined in 32 CFR part 216) that has
a policy or practice that either prohibits, or in effect prevents:
(A) The Secretary of a Military Department for maintaining,
establishing, or operating a unit of the senior Reserve Officers
Training Corps (in accordance with 10 U.S.C. 654 and other applicable
Federal laws) at that institution (or any subelement of that
institution);
(B) Any student at that institution (or any subelement of that
institution) from enrolling in a unit of the Senior ROTC at another
institution of higher education;
(C) The Secretary of a Military Department of Secretary of Homeland
Security from gaining access to campuses, or access to students (who are
17 years of age or older) on campuses, for purposes of military
recruiting in a manner that is at least equal in quality and scope to
the access to campuses and to students that is provide to any other
employer; or
(D) Access by military recruiters for purposes of military recruiter
to the name of students (who are 17 years of age or older and enrolled
at that institution or any subelement of that institution); their
address, telephone listing, date and places of birth, levels of
education, academic majors, and degrees received; and the most recent
education institutions in which they were enrolled.
If the recipient is determined, using the procedures in 32 CFR part
216, to be such an institution of higher education during the period of
performance of this agreement, the Government will cease all payments of
DoD funds under this agreements and all other DoD grants and cooperative
agreements to the recipient, and it may suspend or terminate such grants
and agreements unilaterally for material failure to comply with the
terms and conditions of awards.''
(4) If an institution of higher education refuses to accept the
award of term in paragraph (e)(3) of this section, the grants officer
shall:
(i) Determine that the institution is not qualified with respect to
the award. This grants officer may award to an alternative recipient.
(ii) Transmit the name of the institution, through appropriate
channels, to the Director of Access Policy, Office of the Deputy Under
Secretary of defense of Military Personnel Policy (ODUSD(MPP)), 4000
Defense Pentagon, Washington, DC 20301-4000. This will allow ODUSD(MPP)
to decide whether to initiate an evaluation of the instition under 32
CER part 216, to determine whether it is an institution that has a
policy or practice described in paragraph (c) of this section.
(5) With respect to any pre-existing award to an institution of
higher education that currently is listed on the
[[Page 87]]
EPLS pursuant to a determination under 32 CFR part 216, a grants
officer.
(i) Shall not obligate additional funds available to the DoD for the
award. A grants officer therefore must check the EPLS before approving
an incremental funding action or other additional funding for any pre-
existing award to an institution of higher education. The grants officer
may not obligate the additoinal funds if the cause and treatment code
indicates that the reason for an institution's EPLS listing is a
determination under 32 CFR part 216 that institutional policies or
practices restrict campus access of military recruiters or ROTC.
(ii) Shall not approve any request for payment submitted by such an
institution (including payments of costs already incurred).
(iii) Shall:
(A) Terminate the award unless he or she has a reason to believe,
after consulting with the ODUSD(MPP), 4000 Defense Pentagon, Washington,
DC 20301-4000), that the institution may be removed from the EPLS in the
near term and have its eligibility restored; and
(B) Suspend any award that is not immediately terminated, as well as
all payments under it.
(f) Post-award administration responsibilities of the Office of
Naval Research (ONR). As the DoD office assigned responsibility for
performing field administration services for grants and cooperative
agreements with institutions of higher education, the ONR shall
disseminate the list it receives from the ODUSD(MPP) of institutions of
higher education identified pursuant to the procedures of 32 CFR part
216 to:
(1) ONR field administration offices, with instructions to:
(i) Disapprove any payment requests under awards to such
institutions for which post-award payment administration was delegated
to the ONR; and
(ii) Alert the DoD offices that made the awards to their
responsibilities under paragraphs (e)(5)(i) and (e)(5)(iii) of this
section.
(2) Awarding offices in DoD Components that may be identified from
data in the Defense Assistance Awards Data System (see 32 CFR 21.520
through 21.555) as having awards with such institution s for which post-
award payment administration was not delegated to ONR. The ONR is to
alert those offices to their responsibilities under paragraph (c)(5) of
this section.
[70 FR 49465, Aug. 23, 2005]
Effective Date Note: At 72 FR 34988, June 26, 2007, Sec. 22.520 was
amended by revising paragraphs (c)(3) and (4), (d)(1), (e)(1), (3), (4),
(5) introductory text, (5)(i), (5)(ii) and (f)(2), effective Aug. 27,
2007. For the convenience of the user, the revised text is set forth as
follows:
Sec. 22.520 Campus access for military recruiting and Reserve Officer
Training Corps (ROTC).
* * * * *
(c) * * *
(3) The Secretary of a Military Department or Secretary of Homeland
Security from gaining access to campuses, or access to students (who are
17 years of age or older) on campuses, for purposes of military
recruiting in a manner that is at least equal in quality and scope to
the access to campuses and to students that is provided to any other
employer; or
(4) Access by military recruiters for purposes of military
recruiting to the following information pertaining to students (who are
17 years of age or older) enrolled at that institution (or any
subelement of that institution):
(i) Names, addresses, and telephone listings.
(ii) Date and place of birth, levels of education, academic majors,
degrees received, and the most recent educational institution enrolled
in by the student.
(d) Policy--(1) Applicability to cooperative agreements. As a matter
of DoD policy, the restrictions of 10 U.S.C. 983, as implemented by 32
CFR part 216, apply to cooperative agreements, as well as grants.
(2) * * *
(e) Grants officers' responsibilities. (1) A grants officer shall
not award any grant or cooperative agreement to an institution of higher
education that has been identified pursuant to the procedures of 32 CFR
part 216. Such institutions are identified as being ineligible on the
Governmentwide Excluded Parties List System (EPLS). The cause and
treatment code on the EPLS indicates the reason for an institution's
ineligibility, as well as the effect of the exclusion. Note that OMB
guidance in 2 CFR 180.425 and 180.430, as implemented by the Department
of Defense at 2 CFR part 1125, require a grants officer to check the
EPLS prior to determining that a recipient is qualified to receive an
award.
(2) * * *
[[Page 88]]
(3) A grants officer shall include the following award term in each
grant or cooperative agreement with an institution of higher education
(note that this requirement does not flow down and that recipients are
not required to include the award term in subawards):
``As a condition for receipt of funds available to the Department of
Defense (DoD) under this award, the recipient agrees that it is not an
institution of higher education (as defined in 32 CFR part 216) that has
a policy or practice that either prohibits, or in effect prevents:
(A) The Secretary of a Military Department from maintaining,
establishing, or operating a unit of the Senior Reserve Officers
Training Corps (in accordance with 10 U.S.C. 654 and other applicable
Federal laws) at that institution (or any subelement of that
institution);
(B) Any student at that institution (or any subelement of that
institution) from enrolling in a unit of the Senior ROTC at another
institution of higher education;
(C) The Secretary of a Military Department or Secretary of Homeland
Security from gaining access to campuses, or access to students (who are
17 years of age or older) on campuses, for purposes of military
recruiting in a manner that is at least equal in quality and scope to
the access to campuses and to students that is provided to any other
employer; or
(D) Access by military recruiters for purposes of military
recruiting to the names of students (who are 17 years of age or older
and enrolled at that institution or any subelement of that institution);
their addresses, telephone listings, dates and places of birth, levels
of education, academic majors, and degrees received; and the most recent
educational institutions in which they were enrolled.
If the recipient is determined, using the procedures in 32 CFR part 216,
to be such an institution of higher education during the period of
performance of this agreement, the Government will cease all payments of
DoD funds under this agreement and all other DoD grants and cooperative
agreements to the recipient, and it may suspend or terminate such grants
and agreements unilaterally for material failure to comply with the
terms and conditions of award.''
(4) If an institution of higher education refuses to accept the
award term in paragraph (e)(3) of this section, the grants officer
shall:
(i) Determine that the institution is not qualified with respect to
the award. The grants officer may award to an alternative recipient.
(ii) Transmit the name of the institution, through appropriate
channels, to the Director for Accession Policy, Office of the Deputy
Under Secretary of Defense for Military Personnel Policy (ODUSD(MPP)),
4000 Defense Pentagon, Washington, DC 20301-4000. This will allow
ODUSD(MPP) to decide whether to initiate an evaluation of the
institution under 32 CFR part 216, to determine whether it is an
institution that has a policy or practice described in paragraph (c) of
this section.
(5) With respect to any pre-existing award to an institution of
higher education that currently is listed on the EPLS pursuant to a
determination under 32 CFR part 216, a grants officer:
(i) Shall not obligate additional funds available to the DoD for the
award. A grants officer therefore must check the EPLS before approving
an incremental funding action or other additional funding for any pre-
existing award to an institution of higher education. The grants officer
may not obligate the additional funds if the cause and treatment code
indicates that the reason for an institution's EPLS listing is a
determination under 32 CFR part 216 that institutional policies or
practices restrict campus access of military recruiters or ROTC.
(ii) Shall not approve any request for payment submitted by such an
institution (including payments for costs already incurred).
(iii) * * *
(f) * * *
(2) Awarding offices in DoD Components that may be identified from
data in the Defense Assistance Awards Data System (see 32 CFR 21.520
through 21.555) as having awards with such institutions for which post-
award payment administration was not delegated to ONR. The ONR is to
alert those offices to their responsibilities under paragraph (e)(5) of
this section.
Sec. 22.525 Paperwork Reduction Act.
Grants officers shall include appropriate award terms or conditions,
if a recipient's activities under an award will be subject to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3500, et seq.):
(a) Generally, the Act only applies to Federal agencies--it requires
agencies to obtain clearance from the Office of Management and Budget
before collecting information using forms, schedules, questionnaires, or
other methods calling either for answers to:
(1) Identical questions from ten or more persons other than
agencies, instrumentalities, or employees of the United States.
(2) Questions from agencies, instrumentalities, or employees of the
United States which are to be used for
[[Page 89]]
statistical compilations of general public interest.
(b) The Act applies to similar collections of information by
recipients of grants or cooperative agreements only when:
(1) A recipient collects information at the specific request of the
awarding Federal agency; or
(2) The terms and conditions of the award require specific approval
by the agency of the information collection or the collection
procedures.
Sec. 22.530 Metric system of measurement.
(a) Statutory requirement. The Metric Conversion Act of 1975, as
amended by the Omnibus Trade and Competitiveness Act of 1988 (15 U.S.C.
205) and implemented by Executive Order 12770 (3 CFR, 1991 Comp., p.
343), states that:
(1) The metric system is the preferred measurement system for U.S.
trade and commerce.
(2) The metric system of measurement will be used, to the extent
economically feasible, in federal agencies' procurements, grants, and
other business-related activities.
(3) Metric implementation shall not be required to the extent that
such use is likely to cause significant inefficiencies or loss of
markets to United States firms.
(b) Responsibilities. DoD Components shall ensure that the metric
system is used, to the maximum extent practicable, in measurement-
sensitive activities supported by programs that use grants and
cooperative agreements, and in measurement-sensitive outputs of such
programs.
Subpart F_Award
Sec. 22.600 Purpose.
This subpart sets forth grants officers' responsibilities relating
to the award document and other actions at the time of award.
Sec. 22.605 Grants officers' responsibilities.
At the time of award, the grants officer is responsible for ensuring
that:
(a) The award instrument contains the appropriate terms and
conditions, in accordance with Sec. 22.610.
(b) Information about the award is provided to the office
responsible for preparing reports for the Defense Assistance Award Data
System (DAADS), to ensure timely and accurate reporting of data required
by 31 U.S.C. 6101-6106 (see 32 CFR part 21, subpart E).
(c)(1) In addition to the copy of the award document provided to the
recipient, a copy is forwarded to the office designated to administer
the grant or cooperative agreement, and another copy is forwarded to the
finance and accounting office designated to make the payments to the
recipient.
(2) For any award subject to the electronic funds transfer (EFT)
requirement described in Sec. 22.810(b)(2), the grants officer shall
include a prominent notification of that fact on the first page of the
copies forwarded to the recipient, the administrative grants officer,
and the finance and accounting office. On the first page of the copy
forwarded to the recipient, the grants officer also shall include a
prominent notification that the recipient, to be paid, must submit a
Payment Information Form (Standard Form SF-3881\9\) to the responsible
DoD payment office, if that payment office does not currently have the
information (e.g., bank name and account number) needed to pay the
recipient by EFT.
---------------------------------------------------------------------------
\9\ See footnote 8 to Sec. 22.510(b).
[63 FR 12164, Mar. 12, 1998, as amended at 68 FR 47160, Aug. 7, 2003; 70
FR 49465, Aug. 23, 2005]
Sec. 22.610 Award instruments.
(a) Each award document shall include terms and conditions that:
(1) Address programmatic requirements (e.g., a statement of work or
other appropriate terms or conditions that describe the specific goals
and objectives of the project). The grants officer shall develop such
terms and conditions in coordination with program officials.
(2) Provide for the recipient's compliance with:
(i) Pertinent Federal statutes or Executive orders that apply
broadly to Federal or DoD assistance awards.
[[Page 90]]
(ii) Any program-specific requirements that are prescribed in the
program statute (see Sec. 22.210(a)(2)), or appropriation-specific
requirements that are stated in the pertinent Congressional
appropriations (see Sec. 22.515).
(iii) Pertinent portions of the DoDGARs or other Federal
regulations, including those that implement the Federal statutes or
Executive orders described in paragraphs (a)(2) (i) and (ii) of this
section.
(3) Specify the grants officer's instructions for post-award
administration, for any matter where the post-award administration
provisions in 32 CFR part 32, 33, or 34 give the grants officer options
for handling the matter. For example, under 32 CFR 32.24(b), the grants
officers must choose among possible methods for the recipient's
disposition of program income. It is essential that the grants officer
identify the option selected in each case, to provide clear instructions
to the recipient and the grants officer responsible for post-award
administration of the grant or cooperative agreement.
(b) To assist grants officers:
(1) Appendix B to this part provides model clauses to implement
certain Federal statutes, Executive orders, and regulations (see
paragraph (a)(2)(i) of this section) that frequently apply to DoD grants
and cooperative agreements. Grants officers may incorporate the model
clauses into award terms and conditions, as appropriate. It should be
noted that Appendix B to this part is an aid, and not an exhaustive list
of all requirements that apply in all cases. Depending on the
circumstances of a given award, other statutes, Executive orders, or
codified regulations also may apply (e.g., Appendix B to this part does
not list program-specific requirements described in paragraph (a)(2)(ii)
of this section).
(2) Appendix C to this part is a list of administrative requirements
that apply to awards to different types of recipients. It also
identifies post-award administration issues that the grants officer must
address in the award terms and conditions.
Subpart G_Field Administration
Sec. 22.700 Purpose.
This subpart prescribes policies and procedures for administering
grants and cooperative agreements. It does so in conjunction with 32 CFR
parts 32, 33, and 34, which prescribe administrative requirements for
particular types of recipients.
Sec. 22.705 Policy.
(a) DoD policy is to have each recipient deal with a single office,
to the maximum extent practicable, for post-award administration of its
grants and cooperative agreements. This reduces burdens on recipients
that can result when multiple DoD offices separately administer grants
and cooperative agreements they award to a given recipient. It also
minimizes unnecessary duplication of field administration services.
(b) To further reduce burdens on recipients, the office responsible
for performing field administration services for grants and cooperative
agreements to a particular recipient shall be, to the maximum extent
practicable, the same office that is assigned responsibility for
performing field administration services for contracts awarded to that
recipient.
(c) Contracting activities and grants officers therefore shall use
cross-servicing arrangements whenever practicable and, to the maximum
extent possible, delegate responsibility for post-award administration
to the cognizant grants administration offices identified in Sec.
22.710.
Sec. 22.710 Assignment of grants administration offices.
In accordance with the policy stated in Sec. 22.705(b), the DoD
offices (referred to in this part as ``grants administration offices'')
that are assigned responsibility for performing field administration
services for grants and cooperative agreements are (see the ``Federal
Directory of Contact Administration Services (CAS) Components'' \10\ for
specific addresses of administration offices):
---------------------------------------------------------------------------
\10\ The ``Federal Directory of Contract Administration Services
(CAS) Components'' may be accessed through the Defense Contract
Management Agency homepage at http://www.dcma.mil.
---------------------------------------------------------------------------
[[Page 91]]
(a) Regional offices of the Office of Naval Research, for grants and
cooperative agreements with:
(1) Institutions of higher education and laboratories affiliated
with such institutions, to the extent that such organizations are
subject to the university cost principles in OMB Circular A-21.\11\
---------------------------------------------------------------------------
\11\ See footnote 5 to Sec. 22.420(b)(1).
---------------------------------------------------------------------------
(2) Nonprofit organizations that are subject to the cost principles
in OMB Circular A-122,\12\ if their principal business with the
Department of Defense is research and development.
---------------------------------------------------------------------------
\12\ See footnote 5 to Sec. 22.420(b)(1).
---------------------------------------------------------------------------
(b) Field offices of the Defense Contract Management Command, for
grants and cooperative agreements with all other entities, including:
(1) For-profit organizations.
(2) Nonprofit organizations identified in Attachment C of OMB
Circular A-122 that are subject to for-profit cost principles in 48 CFR
part 31.
(3) Nonprofit organizations subject to the cost principles in OMB
Circular A-122, if their principal business with the Department of
Defense is other than research and development.
(4) State and local governments.
[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49466, Aug. 23, 2005]
Effective Date Note: At 72 FR 34989, June 26, 2007, Sec. 22.710 was
amended by revising the introductory text, effective Aug. 27, 2007. For
the convenience of the user, the revised text is set forth as follows:
Sec. 22.710 Assignment of grants administration offices.
In accordance with the policy stated in Sec. 22.705(b), the DoD
offices (referred to in this part as ``grants administration offices'')
that are assigned responsibility for performing field administration
services for grants and cooperative agreements are (see the ``Federal
Directory of Contract Administration Services (CAS) Components'' \10\
for specific addresses of administration offices):
---------------------------------------------------------------------------
\10\ The ``Federal Directory of Contract Administration Services
(CAS) Components'' may be accessed through the Defense Contract
Management Agency hompage at http://www.dcma.mil.
---------------------------------------------------------------------------
* * * * *
Sec. 22.715 Grants administration office functions.
The primary responsibility of cognizant grants administration
offices shall be to advise and assist grants officers and recipients
prior to and after award, and to help ensure that recipients fulfill all
requirements in law, regulation, and award terms and conditions.
Specific functions include:
(a) Conducting reviews and coordinating reviews, audits, and audit
requests. This includes:
(1) Advising grants officers on the extent to which audits by
independent auditors (i.e., public accountants or Federal auditors) have
provided the information needed to carry out their responsibilities. If
a recipient has had an independent audit in accordance with OMB Circular
A-133, and the audit report disclosed no material weaknesses in the
recipient's financial management and other management and control
systems, additional preaward or closeout audits usually will not be
needed (see Sec. Sec. 22.420(b) and 22.825(b)).
(2) Performing pre-award surveys, when requested by a grants
officer, after providing advice described in paragraph (a)(1) of this
section.
(3) Reviewing recipients' systems and compliance with Federal
requirements, in coordination with any reviews and compliance audits
performed by independent auditors under OMB Circular A-133, or in
accordance with the terms and conditions of the award. This includes:
(i) Reviewing recipients' financial management, property management,
and purchasing systems, to determine the adequacy of such systems.
(ii) Determining that recipients have drug-free workplace programs,
as required under 32 CFR part 26.
(iii) Determining that governmental, university and nonprofit
recipients have complied with requirements in OMB Circular A-133, as
implemented at 32 CFR 32.26 and 33.26, to have single audits and submit
audit reports to the Federal Audit Clearinghouse. If a recipient has not
had a required audit, appropriate action must be taken (e.g., contacting
the recipient and coordinating with the Office of the Assistant
Inspector General for Audit Policy and Oversight (OAIG(P&O)), Office of
the
[[Page 92]]
Deputy Inspector General for Inspections and Policy, Office of the
Inspector General of the Department of Defense (OIG, DoD), 400 Army-Navy
Drive, Arlington, VA 22202).
(4) Issuing timely management decisions, in accordance with DoD
Directive 7640.2, ``Policy for Follow-up on Contract Audit Reports,''
\13\ on single audit findings referred by the OIG, DoD, Directive
7600.10, ``Audits of States, Local Governments, and Non-Profit
Organizations''.\14\
---------------------------------------------------------------------------
\13\ Electronic copies may be obtained at the Washington
Headquarters Services Internet site http://www.dtic.mil/whs/directives.
Paper copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
\14\ See footnote 13 to Sec. 22.715(a)(4).
---------------------------------------------------------------------------
(b) Performing property administration services for Government-owned
property, and for any property acquired by a recipient, with respect to
which the recipient has further obligations to the Government.
(c) Ensuring timely submission of required reports.
(d) Executing administrative closeout procedures.
(e) Establishing recipients' indirect cost rates, where the
Department of Defense is the cognizant or oversight Federal agency with
the responsibility for doing so.
(f) Performing other administration functions (e.g., receiving
recipients' payment requests and transmitting approved payment
authorizations to payment offices) as delegated by applicable cross-
servicing agreements or letters of delegation.
[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49466, Aug. 23, 2005]
Effective Date Note: At 72 FR 34989, June 26, 2007, Sec. 22.715 was
amended by revising paragraph (a)(4), effective Aug. 27, 2007. For the
convenience of the user, the revised text is set forth as follows:
Sec. 22.715 Grants administration office functions.
* * * * *
(a) * * *
(4) Issuing timely management decisions, in accordance with DoD
Directive 7640.2, ``Policy for Follow-up on Contract Audit Reports,''
\13\ on single audit findings referred by the OIG, DoD, under DoD
Directive 7600.10, ``Audits of States, Local Governments, and Non-Profit
Organizations.'' \14\
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\13\ Electronic copies may be obtained at the Washington
Headquarters Services Internet site http://www.dtic.mil/whs/directives.
Paper copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
\14\ See footnote 13 to Sec. 22.715(a)(4).
---------------------------------------------------------------------------
* * * * *
Subpart H_Post-Award Administration
Sec. 22.800 Purpose and relation to other parts.
This subpart sets forth grants officers' and DoD Components'
responsibilities for post-award administration, by providing DoD-
specific requirements on payments; debt collection; claims, disputes and
appeals; and closeout audits.
Sec. 22.805 Post-award requirements in other parts.
Grants officers responsible for post-award administration of grants
and cooperative agreements shall administer such awards in accordance
with the following parts of the DoDGARs, as supplemented by this
subpart:
(a) Awards to domestic recipients. Standard administrative
requirements for grants and cooperative agreements with domestic
recipients are specified in other parts of the DoDGARs, as follows:
(1) For awards to domestic institutions of higher education and
other nonprofit organizations, requirements are specified in 32 CFR part
32, which is the DoD implementation of OMB Circular A-110.
(2) For awards to State and local governments, requirements are
specified in 32 CFR part 33, which is the DoD codification of the
Governmentwide common rule to implement OMB Circular A-102.
(3) For awards to domestic for-profit organizations, requirements
are specified in 32 CFR part 34, which is modeled on the requirements in
OMB Circular A-110.
[[Page 93]]
(b) Awards to foreign recipients. DoD Components shall use the
administrative requirements specified in paragraph (a) of this section,
to the maximum extent practicable, for grants and cooperative agreements
to foreign recipients.
Sec. 22.810 Payments.
(a) Purpose. This section prescribes policies and grants officers'
post-award responsibilities, with respect to payments to recipients of
grants and cooperative agreements.
(b) Policy. (1) It is Governmentwide policy to minimize the time
elapsing between any payment of funds to a recipient and the recipient's
disbursement of the funds for program purposes (see 32 CFR 32.22(a) and
33.21(b), and the implementation of the Cash Management Improvement Act
at 31 CFR part 205).
(2) It also is a Governmentwide requirement to use electronic funds
transfer (EFT) in the payment of any grant for which an application or
proposal was submitted or renewed on or after July 26, 1996, unless the
recipient has obtained a waiver by submitting to the head of the
pertinent Federal agency a certification that it has neither an account
with a financial institution nor an authorized payment agent. This
requirement is in 31 U.S.C. 3332, as amended by the Debt Collection
Improvement Act of 1996 (section 31001(x)(1)(A), Pub. L. 104-134), and
as implemented by Department of Treasury regulations at 31 CFR part 208.
As a matter of DoD policy, this requirement applies to cooperative
agreements, as well as grants. Within the Department of Defense, the
Defense Finance and Accounting Service implements this EFT requirement,
and grants officers have collateral responsibilities at the time of
award, as described in Sec. 22.605(c), and in postaward administration,
as described in Sec. 22.810(c)(3)(iv).
(3) Expanding on these Governmentwide policies, DoD policy is for
DoD Components to use electronic commerce, to the maximum extent
practicable, in the portions of the payment process for grants and
cooperative agreements for which grants officers are responsible. In
cases where recipients submit each payment request to the grants
officer, this includes using electronic methods to receive recipients'
requests for payment and to transmit authorizations for payment to the
DoD payment office. Using electronic methods will improve timeliness and
accuracy of payments and reduce administrative burdens associated with
paper-based payments.
(c) Post-award responsibilities. In cases where the recipient
submits each payment request to the grants officer, the administrative
grants officer designated to handle payments for a grant or cooperative
agreement is responsible for:
(1) Handling the recipient's requests for payments in accordance
with DoD implementation of Governmentwide guidance (see 32 CFR 32.22,
33.21, or 34.12, as applicable).
(2) Reviewing each payment request to ensure that:
(i) The request complies with the award terms.
(ii) Available funds are adequate to pay the request.
(iii) The recipient will not have excess cash on hand, based on
expenditure patterns.
(3) Maintaining a close working relationship with the personnel in
the finance and accounting office responsible for making the payments. A
good working relationship is necessary, to ensure timely and accurate
handling of financial transactions for grants and cooperative
agreements. Administrative grants officers:
(i) Should be generally familiar with policies and procedures for
disbursing offices that are contained in Chapter 19 of Volume 10 of the
DoD Financial Management Regulation (the FMR, DoD 7000.14-R\15\).
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\15\ See footnote 13 to Sec. 22.715(a)(4).
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(ii) Shall forward authorizations to the designated payment office
expeditiously, so that payments may be made in accordance with the
timely payment guidelines in Chapter 19 of Volume 10 of the FMR. Unless
alternative arrangements are made with the payment office,
authorizations should be forwarded to the payment office at least 3
working days before the end of
[[Page 94]]
the period specified in the FMR. The period specified in the FMR is:
(A) No more than seven calendar days after receipt of the
recipient's request by the administrative grants officer, whenever
electronic commerce is used (i.e., EDI to request and authorize payments
and electronic funds transfer (EFT) to make payments).
(B) No more than thirty calendar days after receipt of the
recipient's request by the administrative grants officer, when it is not
possible to use electronic commerce and paper transactions are used.
(C) No more than seven calendar days after each date specified, when
payments are authorized in advance based on a predetermined payment
schedule, provided that the payment schedule was received in the
disbursing office at least 30 calendar days in advance of the date of
the scheduled payment.
(iii) Shall ensure that the recipients' Taxpayer Identification
Number (TIN) is included with each payment authorization forwarded to
the payment office. This is a statutory requirement of 31 U.S.C. 3325,
as amended by the Debt Collection Improvement Act of 1996 (section
31001(y), Pub. L. 104-134).
(iv) For each award that is required to be paid by EFT (see Sec.
22.605(c) and (Sec. 22.810(b)(2)), shall prominently indicate that fact
in the payment authorization.
[63 FR 12164, Mar. 12, 1998, as amended at 70 FR 49467, Aug. 23, 2005]
Sec. 22.815 Claims, disputes, and appeals.
(a) Award terms. Grants officers shall include in grants and
cooperative agreements a term or condition that incorporates the
procedures of this section for:
(1) Processing recipient claims and disputes.
(2) Deciding appeals of grants officers' decisions.
(b) Submission of claims--(1) Recipient claims. If a recipient
wishes to submit a claim arising out of or relating to a grant or
cooperative agreement, the grants officer shall inform the recipient
that the claim must:
(i) Be submitted in writing to the grants officer for decision;
(ii) Specify the nature and basis for the relief requested; and
(iii) Include all data that supports the claim.
(2) DoD Component claims. Claims by a DoD Component shall be the
subject of a written decision by a grants officer.
(c) Alternative Dispute Resolution (ADR)--(1) Policy. DoD policy is
to try to resolve all issues concerning grants and cooperative
agreements by mutual agreement at the grants officer's level. DoD
Components therefore are encouraged to use ADR procedures to the maximum
extent practicable. ADR procedures are any voluntary means (e.g., mini-
trials or mediation) used to resolve issues in controversy without
resorting to formal administrative appeals (see paragraph (e) of this
section) or to litigation.
(2) Procedures. (i) The ADR procedures or techniques to be used may
either be agreed upon by the Government and the recipient in advance
(e.g., when agreeing on the terms and conditions of the grant or
cooperative agreement), or may be agreed upon at the time the parties
determine to use ADR procedures.
(ii) If a grants officer and a recipient are not able to resolve an
issue through unassisted negotiations, the grants officer shall
encourage the recipient to enter into ADR procedures. ADR procedures may
be used prior to submission of a recipient's claim or at any time prior
to the Grant Appeal Authority's decision on a recipient's appeal (see
paragraph (e)(3)(iii) of this section).
(d) Grants officer decisions. (1) Within 60 calendar days of receipt
of a written claim, the grants officer shall either:
(i) Prepare a written decision, which shall include the reasons for
the decision; shall identify all relevant data on which the decision is
based; shall identify the cognizant Grant Appeal Authority and give his
or her mailing address; and shall be included in the award file; or
(ii) Notify the recipient of a specific date when he or she will
render a written decision, if more time is required to do so. The notice
shall inform the recipient of the reason for delaying the decision
(e.g., the complexity of the claim, a need for more time to complete ADR
procedures, or a need for the recipient to provide additional
information to support the claim).
[[Page 95]]
(2) The decision of the grants officer shall be final, unless the
recipient decides to appeal. If a recipient decides to appeal a grants
officer's decision, the grants officer shall encourage the recipient to
enter into ADR procedures, as described in paragraph (c) of this
section.
(e) Formal administrative appeals--(1) Grant appeal authorities.
Each DoD Component that awards grants or cooperative agreements shall
establish one or more Grant Appeal Authorities to decide formal,
administrative appeals in accordance with paragraph (e)(3) of this
section. Each Grant Appeal Authority shall be either:
(i) An individual at a grade level in the Senior Executive Service,
if civilian, or at the rank of Flag or General Officer, if military; or
(ii) A board chaired by such an individual.
(2) Right of appeal. A recipient has the right to appeal a grants
officer's decision to the Grant Appeal Authority (but note that ADR
procedures, as described in paragraph (c) of this section, are the
preferred means for resolving any appeal).
(3) Appeal procedures--(i) Notice of appeal. A recipient may appeal
a decision of the grants officer within 90 calendar days of receiving
that decision, by filing a written notice of appeal to the Grant Appeal
Authority and to the grants officer. If a recipient elects to use an ADR
procedure, the recipient is permitted an additional 60 calendar days to
file the written notice of appeal to the Grant Appeal Authority and
grants officer.
(ii) Appeal file. Within 30 calendar days of receiving the notice of
appeal, the grants officer shall forward to the Grant Appeal Authority
and the recipient the appeal file, which shall include copies of all
documents relevant to the appeal. The recipient may supplement the file
with additional documents it deems relevant. Either the grants officer
or the recipient may supplement the file with a memorandum in support of
its position. The Grant Appeal Authority may request additional
information from either the grants officer or the recipient.
(iii) Decision. The appeal shall be decided solely on the basis of
the written record, unless the Grant Appeal Authority decides to conduct
fact-finding procedures or an oral hearing on the appeal. Any fact-
finding or hearing shall be conducted using procedures that the Grant
Appeal Authority deems appropriate.
(f) Representation. A recipient may be represented by counsel or any
other designated representative in any claim, appeal, or ADR proceeding
brought pursuant to this section, as long as the representative is not
otherwise prohibited by law or regulation from appearing before the DoD
Component concerned.
(g) Non-exclusivity of remedies. Nothing in this section is intended
to limit a recipient's right to any remedy under the law.
Sec. 22.820 Debt collection.
(a) Purpose. This section prescribes procedures for establishing
debts owed by recipients of grants and cooperative agreements, and
transferring them to payment offices for collection.
(b) Resolution of indebtedness. The grants officer shall attempt to
resolve by mutual agreement any claim of a recipient's indebtedness to
the United States arising out of a grant or cooperative agreement (e.g.,
by a finding that a recipient was paid funds in excess of the amount to
which the recipient was entitled under the terms and conditions of the
award).
(c) Grants officer's decision. In the absence of such mutual
agreement, any claim of a recipient's indebtedness shall be the subject
of a grants officer decision, in accordance with Sec. 22.815(b)(2). The
grants officer shall prepare and transmit to the recipient a written
notice that:
(1) Describes the debt, including the amount, the name and address
of the official who determined the debt (e.g., the grants officer under
Sec. 22.815(d)), and a copy of that determination.
(2) Informs the recipient that:
(i) Within 30 calendar days of the grants officer's decision, the
recipient shall either pay the amount owed to the grants officer (at the
address that was provided pursuant to paragraph (c)(1) of this section)
or inform the grants officer of the recipient's intention to appeal the
decision.
[[Page 96]]
(ii) If the recipient elects not to appeal, any amounts not paid
within 30 calendar days of the grants officer's decision will be a
delinquent debt.
(iii) If the recipient elects to appeal the grants officer's
decision the recipient has 90 calendar days, or 150 calendar days if ADR
procedures are used, after receipt of the grants officer's decision to
file the appeal, in accordance with Sec. 22.815(e)(3)(i).
(iv) The debt will bear interest, and may include penalties and
other administrative costs, in accordance with the debt collection
provisions in Chapters 29, 31, and 32 of Volume 5 and Chapters 18 and 19
of Volume 10 of the DoD Financial Management Regulation (DoD 7000.14-R).
No interest will be charged if the recipient pays the amount owed within
30 calendar days of the grants officer's decision. Interest will be
charged for the entire period from the date the decision was mailed, if
the recipient pays the amount owed after 30 calendar days.
(d) Follow-up. Depending upon the response from the recipient, the
grants officer shall proceed as follows:
(1) If the recipient pays the amount owed within 30 calendar days to
the grants officer, the grants officer shall forward the payment to the
responsible payment office.
(2) If within 30 calendar days the recipient elects to appeal the
grants officer's decision, further action to collect the debt is
deferred, pending the outcome of the appeal. If the final result of the
appeal is a determination that the recipient owes a debt to the Federal
Government, the grants officer shall send a demand letter to the
recipient and transfer responsibility for further debt collection to a
payment office, as described in paragraph (d)(3) of this section.
(3) If within 30 calendar days the recipient has neither paid the
amount due nor provided notice of intent to file an appeal of the grants
officer's decision, the grants officer shall send a demand letter to the
recipient, with a copy to the payment office that will be responsible
for collecting the delinquent debt. The payment office will be
responsible for any further debt collection activity, including issuance
of additional demand letters (see Chapter 19 of volume 10 of the DoD
Financial Management Regulation, DoD 7000.14-R). The grants officer's
demand letter shall:
(i) Describe the debt, including the amount, the name and address of
the official that determined the debt (e.g., the grants officer under
Sec. 22.815(d)), and a copy of that determination.
(ii) Notify the recipient that the debt is a delinquent debt that
bears interest from the date of the grants officer's decision, and that
penalties and other administrative costs may be assessed.
(iii) Identify the payment office that is responsible for the
collection of the debt, and notify the recipient that it may submit a
proposal to that payment office to defer collection, if immediate
payment is not practicable.
(e) Administrative offset. In carrying out the responsibility for
collecting delinquent debts, a disbursing officer may need to consult
grants officers, to determine whether administrative offset against
payments to a recipient owing a delinquent debt would interfere with
execution of projects being carried out under grants or cooperative
agreements. Disbursing officers may also ask grants officers whether it
is feasible to convert payment methods under grants or cooperative
agreements from advance payments to reimbursements, to facilitate use of
administrative offset. Grants officers therefore should be familiar with
guidelines for disbursing officers, in Chapter 19 of Volume 10 of the
Financial Management Regulation (DoD 7000.14-R), concerning withholding
and administrative offset to recover delinquent debts.
Sec. 22.825 Closeout audits.
(a) Purpose. This section establishes DoD policy for obtaining
audits at closeout of individual grants and cooperative agreements. It
thereby supplements the closeout procedures specified in:
(1) 32 CFR 32.71 and 32.72, for awards to institutions of higher
education and other nonprofit organizations.
(2) 32 CFR 33.50 and 33.51, for awards to State and local
governments.
(3) 32 CFR 34.61 and 34.62, for awards to for-profit entities.
(b) Policy. Grants officers shall use their judgment on a case-by-
case basis,
[[Page 97]]
in deciding whether to obtain an audit prior to closing out a grant or
cooperative agreement (i.e., there is no specific DoD requirement to
obtain an audit prior to doing so). Factors to be considered include:
(1) The amount of the award.
(2) DoD's past experience with the recipient, including the presence
or lack of findings of material deficiencies in recent:
(i) Audits of individual awards; or
(ii) Systems-wide financial audits and audits of the compliance of
the recipient's systems with Federal requirements, under OMB Circular A-
133, where that Circular is applicable. (See Sec. 22.715(a)(1)).
[[Page 98]]
Appendix A to Part 22--Proposal Provision for Required Certification
[GRAPHIC] [TIFF OMITTED] TR23AU05.028
[70 FR 49468, Aug. 23, 2005]
[[Page 99]]
Appendix B to Part 22--Suggested Award Provisions for National Policy
Requirements That Often Apply
[GRAPHIC] [TIFF OMITTED] TR23AU05.029
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[GRAPHIC] [TIFF OMITTED] TR23AU05.030
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[GRAPHIC] [TIFF OMITTED] TR23AU05.036
[70 FR 49469, Aug. 23, 2005]
Effective Date Note: At 72 FR 34989, June 26, 2007, Appendix B to
part 22 was revised, effective Aug. 27, 2007. For the convenience of the
user, the revised text is set forth as follows:
[[Page 107]]
Appendix B to Part 22--Suggested Award Provisions for National Policy
Requirements that Often Apply
[GRAPHIC] [TIFF OMITTED] TR26JN07.008
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[GRAPHIC] [TIFF OMITTED] TR26JN07.009
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Appendix C to Part 22--Administrative Requirements and Issues To Be
Addressed in Award Terms and Conditions
[GRAPHIC] [TIFF OMITTED] TR16MR00.024
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[GRAPHIC] [TIFF OMITTED] TR16MR00.025
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[GRAPHIC] [TIFF OMITTED] TR16MR00.027
[65 FR 14411, Mar. 16, 2000]
PART 25_GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)--Table of
Contents
Sec.
25.25 How is this part organized?
25.50 How is this part written?
25.75 Do terms in this part have special meanings?
Subpart A_General 25.100 What does this part do?
25.105 Does this part apply to me?
25.110 What is the purpose of the nonprocurement debarment and
suspension system?
[[Page 119]]
25.115 How does an exclusion restrict a person's involvement in covered
transactions?
25.120 May we grant an exception to let an excluded person participate
in a covered transaction?
25.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
25.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement
transactions?
25.135 May the DOD Component exclude a person who is not currently
participating in a nonprocurement transaction?
25.140 How do I know if a person is excluded?
25.145 Does this part address persons who are disqualified, as well as
those who are excluded from nonprocurement transactions?
Subpart B_Covered Transactions
25.200 What is a covered transaction?
25.205 Why is it important to know if a particular transaction is a
covered transaction?
25.210 Which nonprocurement transactions are covered transactions?
25.215 Which nonprocurement transactions are not covered transactions?
25.220 Are any procurement contracts included as covered transactions?
25.225 How do I know if a transaction in which I may participate is a
covered transaction?
Subpart C_Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
25.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
25.305 May I enter into a covered transaction with an excluded or
disqualified person?
25.310 What must I do if a Federal agency excludes a person with whom I
am already doing business in a covered transaction?
25.315 May I use the services of an excluded person as a principal under
a covered transaction?
25.320 Must I verify that principals of my covered transactions are
eligible to participate?
25.325 What happens if I do business with an excluded person in a
covered transaction?
25.330 What requirements must I pass down to persons at lower tiers with
whom I intend to do business?
Disclosing Information--Primary Tier Participants
25.335 What information must I provide before entering into a covered
transaction with the DOD Component?
25.340 If I disclose unfavorable information required under Sec.
25.335, will I be prevented from participating in the
transaction?
25.345 What happens if I fail to disclose the information required under
Sec. 25.335?
25.350 What must I do if I learn of the information required under Sec.
25.335 after entering into a covered transaction with the DOD
Component?
Disclosing Information--Lower Tier Participants
25.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that
participant?
25.360 What happens if I fail to disclose the information required under
Sec. 25.355?
25.365 What must I do if I learn of information required under Sec.
25.355 after entering into a covered transaction with a higher
tier participant?
Subpart D_Responsibilities of DOD Component Officials Regarding
Transactions
25.400 May I enter into a transaction with an excluded or disqualified
person?
25.405 May I enter into a covered transaction with a participant if a
principal of the transaction is excluded?
25.415 What must I do if a Federal agency excludes the participant or a
principal after I enter into a covered transaction?
25.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
25.425 When do I check to see if a person is excluded or disqualified?
25.430 How do I check to see if a person is excluded or disqualified?
25.435 What must I require of a primary tier participant?
25.440 What method do I use to communicate those requirements to
participants?
25.445 What action may I take if a primary tier participant knowingly
does business with an excluded or disqualified person?
25.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 25.335?
25.455 What may I do if a lower tier participant fails to disclose the
information required under Sec. 25.355 to the next higher
tier?
Subpart E_Excluded Parties List System
25.500 What is the purpose of the Excluded Parties List System (EPLS)?
[[Page 120]]
25.505 Who uses the EPLS?
25.510 Who maintains the EPLS?
25.515 What specific information is in the EPLS?
25.520 Who places the information into the EPLS?
25.525 Whom do I ask if I have questions about a person in the EPLS?
25.530 Where can I find the EPLS?
Subpart F_General Principles Relating to Suspension and Debarment
Actions
25.600 How do suspension and debarment actions start?
25.605 How does suspension differ from debarment?
25.610 What procedures does the DOD Component use in suspension and
debarment actions?
25.615 How does the DOD Component notify a person of a suspension and
debarment action?
25.620 Do Federal agencies coordinate suspension and debarment actions?
25.625 What is the scope of a suspension or debarment action?
25.630 May the DOD Component impute the conduct of one person to
another?
25.635 May the DOD Component settle a debarment or suspension action?
25.640 May a settlement include a voluntary exclusion?
25.645 Do other Federal agencies know if the DOD Component agrees to a
voluntary exclusion?
Subpart G_Suspension
25.700 When may the suspending official issue a suspension?
25.705 What does the suspending official consider in issuing a
suspension?
25.710 When does a suspension take effect?
25.715 What notice does the suspending official give me if I am
suspended?
25.720 How may I contest a suspension?
25.725 How much time do I have to contest a suspension?
25.730 What information must I provide to the suspending official if I
contest a suspension?
25.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
25.740 Are suspension proceedings formal?
25.745 How is fact-finding conducted?
25.750 What does the suspending official consider in deciding whether to
continue or terminate my suspension?
25.755 When will I know whether the suspension is continued or
terminated?
25.760 How long may my suspension last?
Subpart H_Debarment
25.800 What are the causes for debarment?
25.805 What notice does the debarring official give me if I am proposed
for debarment?
25.810 When does a debarment take effect?
25.815 How may I contest a proposed debarment?
25.820 How much time do I have to contest a proposed debarment?
25.825 What information must I provide to the debarring official if I
contest a proposed debarment?
25.830 Under what conditions do I get an additional opportunity to
challenge the facts on which a proposed debarment is based?
25.835 Are debarment proceedings formal?
25.840 How is fact-finding conducted?
25.845 What does the debarring official consider in deciding whether to
debar me?
25.850 What is the standard of proof in a debarment action?
25.855 Who has the burden of proof in a debarment action?
25.860 What factors may influence the debarring official's decision?
25.865 How long may my debarment last?
25.870 When do I know if the debarring official debars me?
25.875 May I ask the debarring official to reconsider a decision to
debar me?
25.880 What factors may influence the debarring official during
reconsideration?
25.885 May the debarring official extend a debarment?
Subpart I_Definitions
25.900 Adequate evidence.
25.905 Affiliate.
25.910 Agency.
25.915 Agent or representative.
25.920 Civil judgment.
25.925 Conviction.
25.930 Debarment.
25.935 Debarring official.
25.940 Disqualified.
25.942 DOD Component.
25.945 Excluded or exclusion.
25.950 Excluded Parties List System.
25.955 Indictment.
25.960 Ineligible or ineligibility.
25.965 Legal proceedings.
25.970 Nonprocurement transaction.
25.975 Notice.
25.980 Participant.
25.985 Person.
25.990 Preponderance of the evidence.
25.995 Principal.
25.1000 Respondent.
25.1005 State.
25.1010 Suspending official.
25.1015 Suspension.
25.1020 Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]
[[Page 121]]
Appendix to Part 25--Covered Transactions
Authority: E.O. 12549, 3 CFR 1986 Comp., p.189; E.O. 12689 , 3 CFR
1989 Comp., p.235; sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C.
6101 note).
Source: 68 FR 66544, 66607, 66609, Nov. 26, 2003, unless otherwise
noted.
Effective Date Note: At 72 FR 34998, June 26, 2007, part 25 was
removed, effective Aug. 27, 2007.
Sec. 25.25 How is this part organized?
(a) This part is subdivided into ten subparts. Each subpart contains
information related to a broad topic or specific audience with special
responsibilities, as shown in the following table:
------------------------------------------------------------------------
You will find provisions
In subpart . . . related to . . .
------------------------------------------------------------------------
A...................................... general information about this
rule.
B...................................... the types of DOD Component
transactions that are covered
by the Governmentwide
nonprocurement suspension and
debarment system.
C...................................... the responsibilities of persons
who participate in covered
transactions.
D...................................... the responsibilities of DOD
Component officials who are
authorized to enter into
covered transactions.
E...................................... the responsibilities of Federal
agencies for the Excluded
Parties List System
(Disseminated by the General
Services Administration).
F...................................... the general principles
governing suspension,
debarment, voluntary exclusion
and settlement.
G...................................... suspension actions.
H...................................... debarment actions.
I...................................... definitions of terms used in
this part.
J...................................... [Reserved]
------------------------------------------------------------------------
(b) The following table shows which subparts may be of special
interest to you, depending on who you are:
------------------------------------------------------------------------
If you are . . . See subpart(s) . . .
------------------------------------------------------------------------
(1) a participant or principal in a A, B, C, and I.
nonprocurement transaction.
(2) a respondent in a suspension action... A, B, F, G and I.
(3) a respondent in a debarment action.... A, B, F, H and I.
(4) a suspending official................. A, B, D, E, F, G and I.
(5) a debarring official.................. A, B, D, E, F, H and I.
(6) a (n) DOD Component official A, B, D, E and I.
authorized to enter into a covered
transaction.
(7) Reserved.............................. J.
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Sec. 25.50 How is this part written?
(a) This part uses a ``plain language'' format to make it easier for
the general public and business community to use. The section headings
and text, often in the form of questions and answers, must be read
together.
(b) Pronouns used within this part, such as ``I'' and ``you,''
change from subpart to subpart depending on the audience being
addressed. The pronoun ``we'' always is the DOD Component.
(c) The ``Covered Transactions'' diagram in the appendix to this
part shows the levels or ``tiers'' at which the DOD Component enforces
an exclusion under this part.
Sec. 25.75 Do terms in this part have special meanings?
This part uses terms throughout the text that have special meaning.
Those terms are defined in Subpart I of this part. For example, three
important terms are--
(a) Exclusion or excluded, which refers only to discretionary
actions taken by a suspending or debarring official under this part or
the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4);
(b) Disqualification or disqualified, which refers to prohibitions
under specific statutes, executive orders (other than Executive Order
12549 and Executive Order 12689), or other authorities.
Disqualifications frequently are not subject to the discretion of an
agency official, may have a different scope than exclusions, or have
special conditions that apply to the disqualification; and
(c) Ineligibility or ineligible, which generally refers to a person
who is either excluded or disqualified.
Subpart A_General
Sec. 25.100 What does this part do?
This part adopts a governmentwide system of debarment and suspension
for DOD Component nonprocurement activities. It also provides for
reciprocal exclusion of persons who have been excluded under the Federal
Acquisition Regulation, and provides for the consolidated listing of all
persons who are excluded, or disqualified by statute, executive order,
or other legal authority. This part satisfies the requirements in
section 3 of Executive Order 12549, ``Debarment and Suspension'' (3 CFR
1986 Comp., p. 189), Executive
[[Page 122]]
Order 12689, ``Debarment and Suspension'' (3 CFR 1989 Comp., p. 235) and
31 U.S.C. 6101 note (Section 2455, Public Law 103-355, 108 Stat. 3327).
Sec. 25.105 Does this part apply to me?
Portions of this part (see table at Sec. 25.25(b)) apply to you if
you are a(n)--
(a) Person who has been, is, or may reasonably be expected to be, a
participant or principal in a covered transaction;
(b) Respondent (a person against whom the DOD Component has
initiated a debarment or suspension action);
(c) DOD Component debarring or suspending official; or
(d) DOD Component official who is authorized to enter into covered
transactions with non-Federal parties.
Sec. 25.110 What is the purpose of the nonprocurement debarment and
suspension system?
(a) To protect the public interest, the Federal Government ensures
the integrity of Federal programs by conducting business only with
responsible persons.
(b) A Federal agency uses the nonprocurement debarment and
suspension system to exclude from Federal programs persons who are not
presently responsible.
(c) An exclusion is a serious action that a Federal agency may take
only to protect the public interest. A Federal agency may not exclude a
person or commodity for the purposes of punishment.
Sec. 25.115 How does an exclusion restrict a person's involvement in covered
transactions?
With the exceptions stated in Sec. Sec. 25.120, 25.315, and 25.420,
a person who is excluded by the DOD Component or any other Federal
agency may not:
(a) Be a participant in a(n) DOD Component transaction that is a
covered transaction under subpart B of this part;
(b) Be a participant in a transaction of any other Federal agency
that is a covered transaction under that agency's regulation for
debarment and suspension; or
(c) Act as a principal of a person participating in one of those
covered transactions.
Sec. 25.120 May we grant an exception to let an excluded person participate
in a covered transaction?
(a) The Head of the DOD Component or his or her designee may grant
an exception permitting an excluded person to participate in a
particular covered transaction. If the Head of the DOD Component or his
or her designee grants an exception, the exception must be in writing
and state the reason(s) for deviating from the governmentwide policy in
Executive Order 12549.
(b) An exception granted by one agency for an excluded person does
not extend to the covered transactions of another agency.
Sec. 25.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
If any Federal agency excludes a person under its nonprocurement
common rule on or after August 25, 1995, the excluded person is also
ineligible to participate in Federal procurement transactions under the
FAR. Therefore, an exclusion under this part has reciprocal effect in
Federal procurement transactions.
Sec. 25.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement transactions?
If any Federal agency excludes a person under the FAR on or after
August 25, 1995, the excluded person is also ineligible to participate
in nonprocurement covered transactions under this part. Therefore, an
exclusion under the FAR has reciprocal effect in Federal nonprocurement
transactions.
Sec. 25.135 May the DOD Component exclude a person who is not currently
participating in a nonprocurement transaction?
Given a cause that justifies an exclusion under this part, we may
exclude any person who has been involved, is currently involved, or may
reasonably be expected to be involved in a covered transaction.
[[Page 123]]
Sec. 25.140 How do I know if a person is excluded?
Check the Excluded Parties List System (EPLS) to determine whether a
person is excluded. The General Services Administration (GSA) maintains
the EPLS and makes it available, as detailed in subpart E of this part.
When a Federal agency takes an action to exclude a person under the
nonprocurement or procurement debarment and suspension system, the
agency enters the information about the excluded person into the EPLS.
Sec. 25.145 Does this part address persons who are disqualified, as well as
those who are excluded from nonprocurement transactions?
Except if provided for in Subpart J of this part, this part--
(a) Addresses disqualified persons only to--
(1) Provide for their inclusion in the EPLS; and
(2) State responsibilities of Federal agencies and participants to
check for disqualified persons before entering into covered
transactions.
(b) Does not specify the--
(1) DOD Component transactions for which a disqualified person is
ineligible. Those transactions vary on a case-by-case basis, because
they depend on the language of the specific statute, Executive order, or
regulation that caused the disqualification;
(2) Entities to which the disqualification applies; or
(3) Process that the agency uses to disqualify a person. Unlike
exclusion, disqualification is frequently not a discretionary action
that a Federal agency takes.
Subpart B_Covered Transactions
Sec. 25.200 What is a covered transaction?
A covered transaction is a nonprocurement or procurement transaction
that is subject to the prohibitions of this part. It may be a
transaction at--
(a) The primary tier, between a Federal agency and a person (see
appendix to this part); or
(b) A lower tier, between a participant in a covered transaction and
another person.
Sec. 25.205 Why is it important if a particular transaction is a covered
transaction?
The importance of a covered transaction depends upon who you are.
(a) As a participant in the transaction, you have the
responsibilities laid out in Subpart C of this part. Those include
responsibilities to the person or Federal agency at the next higher tier
from whom you received the transaction, if any. They also include
responsibilities if you subsequently enter into other covered
transactions with persons at the next lower tier.
(b) As a Federal official who enters into a primary tier
transaction, you have the responsibilities laid out in subpart D of this
part.
(c) As an excluded person, you may not be a participant or principal
in the transaction unless--
(1) The person who entered into the transaction with you allows you
to continue your involvement in a transaction that predates your
exclusion, as permitted under Sec. 25.310 or Sec. 25.415; or
(2) A(n) DOD Component official obtains an exception from the Head
of the DOD Component or his or her designee to allow you to be involved
in the transaction, as permitted under Sec. 25.120.
Sec. 25.210 Which nonprocurement transactions are covered transactions?
All nonprocurement transactions, as defined in Sec. 25.970, are
covered transactions unless listed in Sec. 25.215. (See appendix to
this part.)