Assistance Regulations, 28385-28391 [E8-11005]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 73, Number 96 (Friday, May 16, 2008)]
[Proposed Rules]
[Pages 28385-28391]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-11005]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

10 CFR Parts 600 and 1024

RIN 1991-AB77


Assistance Regulations

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Department of Energy (DOE) is proposing to amend its 
Assistance Regulations to make changes to streamline and simplify its 
procedures for soliciting, awarding, and administering its financial 
assistance agreements. These changes are being made to make technical 
corrections, to revise sections affected by the Energy Policy Act of 
2005, and to further DOE's implementation of the Federal Financial 
Assistance Management Improvement Act of 1999. DOE is also proposing to 
remove Part 1024, Procedures for Financial Assistance Appeals, in its 
entirety.

DATES: Interested parties should submit written comments on or before 
July 15, 2008.

ADDRESSES: This proposed rule is available and comments may be 
submitted online at https://www.regulations.gov. Comments may also be 
submitted electronically to Jacqueline.kniskern@hq.doe.gov. Comments 
may be mailed to: Jacqueline Kniskern, Procurement Policy Analyst; MA-
61/Forrestal Building; U.S. Department of Energy; 1000 Independence 
Avenue, SW., Washington, DC 20585. Electronic submissions are 
encouraged to ensure timely receipt.

FOR FURTHER INFORMATION CONTACT: Ms. Jacqueline Kniskern, Office of 
Procurement and Assistance Policy, U.S. Department of Energy, at 202-
287-1342 or Jacqueline.kniskern@hq.doe.gov.

SUPPLEMENTARY INFORMATION: 

I. Background
II. Explanation of Changes
III. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act of 1980
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under the Treasury and General Government 
Appropriations Act, 2001
    J. Review Under Executive Order 13211
    K. Approval by the Office of the Secretary of Energy

I. Background

    DOE has been actively engaged in the government-wide effort to 
streamline and simplify the application, administrative and reporting 
procedures for Federal financial assistance programs pursuant to the 
Federal Financial Assistance Management Improvement Act of 1999, Public 
Law No. 106-107.
    As part of this initiative, DOE has solicited comments and 
suggestions from the grant community and made

[[Page 28386]]

changes to its assistance regulations. In particular, the DOE added to 
10 CFR Part 600 Subpart D, Administrative Requirements for Grants and 
Cooperative Agreements with For-Profit Organizations, in a rule 
published in the Federal Register (68 FR 50645, August 21, 2003).
    DOE has also incorporated policy directives issued by the Office of 
Management and Budget (OMB) that established a standard format for 
Federal agency announcements of funding opportunities under programs 
that award discretionary grants or cooperative agreements, established 
standard data elements for electronically posting synopses of Federal 
agencies' announcements of funding opportunities, and required Federal 
agencies to post synopses of their discretionary grant and cooperative 
agreement funding opportunity announcements on the Grants.gov Web site, 
https://www.Grants.gov. The final rule incorporating these policy 
directives was published in the Federal Register at 69 FR 7865 on 
February 20, 2004. In addition, DOE developed a standard format for its 
funding opportunity announcements and revised systems to comply with 
the new posting requirements.
    Today, DOE is proposing to update, streamline and simplify the 
general rules in Subpart A of its Financial Assistance Rules. DOE is 
proposing to eliminate sections that are duplicative of other sections 
that incorporated OMB Circulars and provide no additional guidance or 
information to applicants and recipients or require applicants to look 
at multiple sections for the same information. In addition, DOE is 
proposing to eliminate sections containing outdated requirements, which 
can be confusing to applicants and recipients.
    Section 988 of the Energy Policy Act of 2005, Public Law No. 109-
58, established Department-wide cost sharing requirements for most 
research, development, demonstration, and commercial application 
activities initiated after the date of enactment. The requirements of 
section 988 take the place of the numerous, current cost sharing 
requirements that have been contained in previous authorization and 
appropriations laws. This proposed rule will implement the requirements 
of section 988 replacing those promulgated after the Energy Policy Act 
of 1992, Public Law No. 102-486.
    DOE is making technical corrections to provide consistency and 
clarity throughout the Financial Assistance Rules as put in practice 
and to provide references to sections in Subpart D that were not 
incorporated with that rule, 68 FR 50645 (August 21, 2003).
    Lastly, the DOE Financial Assistance Appeals Board was abolished 
when DOE's Energy Board of Contract Appeals was merged into the 
Civilian Board of Contract Appeals as required by section 847 of the 
National Defense Authorization Act for Fiscal Year 2006, Public Law No. 
109-163. While DOE has maintained appeal rights by providing for 
appeals to the DOE Senior Procurement Executive (SPE) (see section 29 
of this notice for changes in 10 CFR 600.22), the regulatory procedures 
designed for the Financial Assistance Appeals Board are not necessary 
for those appeals. Internal agency procedures will be used instead.

II. Section-by-Section Analysis

    DOE is proposing to amend 10 CFR Parts 600 and 1024 as follows.
    1. Section 600.2 is amended by changing ``solicitation'' to 
``funding opportunity announcement'' in paragraph (a) to be consistent 
with section 600.
    2. Section 600.3 is amended by capitalizing ``Contracting Officer'' 
in the definition of ``Amendment''; by adding definitions for ``Cost 
sharing or matching'' and ``Total project cost'' to facilitate changes 
made in section 600.30, ``Cost Sharing.''
    3. Section 600.4 is amended to add a reference to section 600.304 
in paragraph (a) that was not incorporated at the time Subpart D was 
added to Part 600.
    4. Section 600.6 is amended in paragraphs (b), (b)(1), and (c)(7) 
by changing ``solicitation'' to ``funding opportunity announcement'' to 
be consistent with section 600.8. Paragraphs (b) and (d) are amended to 
restate the concurrence and approval requirements in plain English. 
This revision is not intended to alter substantially the concurrence 
and approval requirements.
    5. Section 600.8 has been renamed ``Funding Opportunity 
Announcement'' to more accurately reflect the coverage of this section. 
Paragraphs (a), (a)(1), and (a)(2) are amended by deleting 
``solicitation'' and ``program announcement'' and replacing with 
``funding opportunity announcement'' or its acronym ``FOA.''
    6. Section 600.10 is amended to add the requirement for all 
applicants to be registered in the Central Contractor Registration and 
to make changes related to the receipt of applications electronically.
    7. Section 600.11 is deleted in its entirety as this information 
more accurately belongs in a funding opportunity announcement when 
applicable.
    8. Section 600.12 is deleted in its entirety as the requirements of 
assurances and certifications have been incorporated Government-wide in 
the standard application forms maintained by Grants.gov.
    9. Section 600.14 is marked as reserved for consistency and clarity 
with the rest of Part 600.
    10. Section 600.15 is amended by changing ``solicitation'' to 
``funding opportunity announcement'' in paragraph (b)(2) for clarity 
and consistency with the rest of Part 600.
    11. Section 600.16 is amended by inserting a new paragraph (b) that 
describes a recipient's acceptance of an award and redesignating the 
old paragraph (b) as paragraph (c).
    12. Section 600.17 is amended to facilitate changes to 
administration requirements.
    13. Section 600.18 is deleted in its entirety. The recipient's 
responsibility for acceptance of an award has been moved to section 
600.16.
    14. Section 600.19 is amended by deleting, in the second sentence, 
the word ``briefly'' and the phrase ``and, if for grounds other than 
unavailability of funds, shall offer the unsuccessful applicant the 
opportunity for a more detailed explanation upon request'' as the 
applicant may always request additional information no matter the 
reason for the unsuccessful application.
    15. Section 600.21 is amended by adding a cross reference to the 
applicable section of Subpart D in paragraph (a) that was not 
incorporated at the time Subpart D was added to Part 600.
    16. Section 600.22 is amended to update the section for changes to 
the Financial Assistance Appeals Board. The Financial Assistance 
Appeals Board was staffed by the Energy Board of Contract Appeals which 
was abolished by Section 847 of the National Defense Authorization Act 
for Fiscal Year 2006, Public Law No. 109-163. The Department is 
maintaining the right of recipients to appeal certain Contracting 
Officer's determinations by providing for appeals to the DOE or 
National Nuclear Security Administration (NNSA) Senior Procurement 
Executive (SPE) in place of the now defunct appeals board. 
Specifically, the reference to 10 CFR 1024 in paragraph (a) is deleted 
as this Part is being removed by this proposed rulemaking; paragraph 
(d) is updated with the correct contact information for the two SPEs; 
paragraphs (e) and (f) are updated by changing the reference to the 
Board

[[Page 28387]]

to SPEs. Paragraph (f) is also updated to include references to the 
applicable sections of Subpart D of this part that were not added at 
the time Subpart D was implemented.
    17. Section 600.23 is deleted in its entirety as this information 
has recently been moved to Title 2 of the CFR as part of the 
implementation of the OMB guidance provided at 2 CFR Part 180 and as 
part of OMB's initiative to streamline and consolidate all federal 
regulations on nonprocurement debarment and suspension.
    18. Section 600.24 is amended by adding references to Subpart D of 
10 CFR part 600 in addition to Subparts B and C that were not updated 
as part of the rulemaking that added Subpart D in 2003.
    19. Section 600.25 is amended by adding references to Subpart D of 
10 CFR Part 600 in addition to Subparts B and C that were not updated 
as part of the rulemaking that added Subpart D in 2003 and to delete 
certain references to Subparts B, C and D that do not require written 
notification as previously indicated in Section 600.25.
    20. Section 600.26 is deleted in its entirety as it is duplicative 
of sections in other areas of Part 600.
    21. Section 600.28 is deleted in its entirety as it is duplicative 
of sections in other areas of Part 600 and 10 CFR Part 601.
    22. Section 600.29 is amended to raise the dollar threshold to 
provide greater flexibility to Contracting Officers and recipients in 
award and administration of financial assistance agreements.
    23. Section 600.30 is amended to incorporate the requirements of 
section 988 of the Energy Policy Act of 2005, Public Law No. 109-58, 
which standardized cost sharing requirements for research and 
development activities.
    24. Section 600.31 is amended by capitalizing all references to 
Contracting Officer for consistency purposes.
    25. Section 600.112 is amended by changing ``solicitation'' to 
``funding opportunity announcement'' to be consistent with 600.8; 
deleting paragraphs (a)(1), (a)(2) and (b)(1) in order to delete 
requirements to use specific DOE forms as DOE is using the forms 
maintained by Grants.gov for applying for financial assistance as part 
of an overall government-wide policy; and renumbering paragraphs (b)(2) 
and (c) as paragraphs (c) and (d).
    26. Section 600.113 is amended to correct the citation for 
``Debarment and Suspension'' to 2 CFR Parts 180 and 901.
    27. Section 600.117 is deleted in its entirety as representations, 
certifications and assurances are now received through the submission 
of standard application forms with government-wide changes due to the 
implementation of Grants.gov.
    28. Section 600.305 is amended to correct the citation for 
Debarment and Suspension to 2 CFR Parts 180 and 901.
    29. DOE is proposing to remove Part 1024 in its entirety as the 
Financial Assistance Appeals Board, staffed by the Energy Board of 
Contract Appeals, was abolished by the Department to comply with 
section 847 of the National Defense Authorization Act for Fiscal Year 
2006, Public Law No. 109-163. The Department is maintaining the right 
of recipients to appeal Contracting Officer's determinations by 
providing for appeals to the DOE or NNSA Senior Procurement Executive 
(SPE) in place of the now defunct appeals board. See 10 CFR Part 600.22 
as amended by this proposed rulemaking.

III. Procedural Requirements

A. Review Under Executive Order 12866

    This regulatory action has been determined not to be ``a 
significant regulatory action'' under Executive Order 12866, Regulatory 
Planning and Review, 58 FR 51735 (October 4, 1993). Accordingly, this 
action is not subject to review under that Executive Order by the 
Office of Information and Regulatory Affairs (OIRA) of OMB.

B. Review Under the Regulatory Flexibility Act of 1980

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, Proper Consideration of Small Entities in 
Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies to ensure that the potential impacts of its 
draft rules on small entities are properly considered during the 
rulemaking process, 68 FR 7990 (February 19, 2003), and has made them 
available on the Office of General Counsel's Web site: https://
www.gc.doe.gov. DOE has reviewed today's rule under the provisions of 
the Regulatory Flexibility Act and the procedures and policies 
published on February 19, 2003. Today's proposed rule would subject 
small entities either to requirements that parallel government-wide 
requirements that OMB Circular A-110 establishes for other assistance 
awards, or to less burdensome requirements that enable firms from the 
commercial marketplace to participate in DOE research, development, and 
demonstration projects. Today's proposed amendments would not alter the 
substance of the OMB requirements or impose significant additional 
burdens. On the basis of the foregoing, DOE certifies that the rule 
does not have a significant economic impact on a substantial number of 
small entities. DOE did not prepare a regulatory flexibility analysis 
for this rulemaking.

C. Review Under the Paperwork Reduction Act of 1995

    This regulatory action will not impose any additional reporting or 
recordkeeping requirements subject to approval under the Paperwork 
Reduction Act.

D. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule falls into a class 
of actions that would not individually or cumulatively have a 
significant impact on the human environment, as determined by DOE's 
regulations implementing the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.). Specifically, this rule establishes 
guidelines and procedures for application and review, administration, 
audit and closeout of assistance instruments, and, therefore, is 
covered under the Categorical Exclusion in paragraph A6 of Appendix A 
to Subpart D, 10 CFR Part 1021. Accordingly, neither an environmental 
assessment nor an environmental impact statement is required.

E. Review Under Executive Order 13132

    Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that preempt state law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the states and carefully assess the 
necessity for such actions. DOE has examined today's proposed rule and 
has determined that it does not preempt state law and does not have a 
substantial direct effect on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

[[Page 28388]]

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
Civil Justice Reform, 61 FR 4729 (February 7, 1996), imposes on 
executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; (3) provide a clear legal standard 
for affected conduct rather than a general standard; and (4) promote 
simplification and burden reduction. Section 3(b) of Executive Order 
12988 specifically requires that executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
United States Attorney General. Section 3(c) of Executive Order 12988 
requires executive agencies to review regulations in light of 
applicable standards in sections 3(a) and 3(b) to determine whether 
they are met or if it is unreasonable to meet one or more of them. DOE 
has completed the required review and determined that, to the extent 
permitted by law, this rule meets the relevant standards of Executive 
Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, Public Law No. 104-4, 
generally requires federal agencies to examine closely the impacts of 
regulatory actions on state, local, or tribal governments. Subsection 
101(5) of Title I of that law defines a federal intergovernmental 
mandate to include a regulation that would impose upon state, local, or 
tribal governments an enforceable duty, except a condition of federal 
assistance or a duty arising from participating in a voluntary federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on state, local, and tribal 
governments, in the aggregate, or the private sector, other than to the 
extent such actions merely incorporate requirements specifically set 
forth in a statute. Section 202 of the title requires a federal agency 
to perform a detailed assessment of the anticipated costs and benefits 
of any rule that includes a Federal mandate which may result in costs 
to state, local, or tribal governments, or the private sector, of $100 
million or more in any one year (adjusted annually for inflation). 2 
U.S.C. 1532(a) and (b). Section 204 of that title requires each agency 
that proposed a rule containing a significant federal intergovernmental 
mandate to develop an effective process for obtaining meaningful and 
timely input from elected officers of state, local, and tribal 
governments. 2 U.S.C. 1534.
    This proposed rule would amend the assistance regulations with 
changes that streamline and simplify procedures for soliciting, 
awarding, and administering financial assistance agreements. The 
proposed rule would not result in the expenditure by state, local, and 
tribal governments, in aggregate, or by the private sector of $100 
million or more in any one year. Accordingly, no assessment or analysis 
is required under the Unfunded Mandates Reform Act of 1995.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999, Public Law No. 105-277, requires federal agencies to issue a 
Family Policymaking Assessment for any proposed rule or policy that may 
affect family well-being. This rule will not have any impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001, 44 
U.S.C. 3516 note, provides for agencies to review most disseminations 
of information to the public under implementing guidelines established 
by each agency pursuant to general guidelines issued by OMB. OMB's 
guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's 
guidelines were published at 67 FR 62446 (October 7, 2002). DOE has 
reviewed today's rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

J. Review Under Executive Order 13211

    Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355 
(May 22, 2001), requires federal agencies to prepare and submit to the 
OMB a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use.
    This regulatory action would not have a significant adverse effect 
on the supply, distribution, or use of energy and is therefore not a 
significant energy action. Accordingly, DOE has not prepared a 
Statement of Energy Effects.

K. Approval by the Office of the Secretary of Energy

    The Office of the Secretary has approved the issuance of this 
proposed rule.

List of Subjects in 10 CFR Parts 600 and 1024

    Administrative practice and procedure, Assistance programs.

Edward R. Simpson,
Director, Office of Procurement and Assistance Management, Office of 
Management, Department of Energy
David O. Boyd,
Director, Office of Acquisition and Supply Management, National Nuclear 
Security Administration.
    For the reasons set out in the preamble, Part 600 of Chapter II, 
and Part 1024 of Chapter X, Title 10 of the Code of Federal Regulations 
are proposed to be amended as follows:

PART 600--FINANCIAL ASSISTANCE RULES

    1. The authority citation for part 600 continues to read as 
follows:

    Authority: 42 U.S.C. 7101 et seq.; 31 U.S.C. 6301-6308; 50 
U.S.C. 2401 et seq., unless otherwise noted.


Sec.  600.2  [Amended]

    2. Section 600.2 is amended in paragraph (a) by removing 
``solicitations'' and adding ``funding

[[Page 28389]]

opportunity announcements'' in its place.
    3. Section 600.3 is amended in the definition of ``Amendment'' by 
capitalizing ``Contracting Officer'', and by adding new definitions in 
alphabetical order for ``Cost sharing or matching'' and ``Total Project 
Cost'' to read as follows:


Sec.  600.3  Definitions.

* * * * *
    Cost sharing or matching means that portion of project or program 
costs not borne by the Federal Government.
* * * * *
    Total Project Cost means all allowable costs, as set forth in the 
applicable federal cost principles, incurred in accomplishing the 
objective of the project during the project period, including the value 
of contributions made by third parties and costs incurred by Federally 
Funded Research and Development Centers.
    4. Section 600.4 paragraph (a)(1) is amended by revising the second 
sentence to read as follows:


Sec.  600.4  Deviations.

    (a) General. (1) * * * The use of optional or discretionary 
provisions of this part, including special restrictive conditions used 
in accordance with Sec. Sec.  600.114, 600.212, and 600.304 are not 
deviations. * * *
* * * * *
    5. Section 600.6 is revised to read as follows:


Sec.  600.6  Eligibility.

    (a) General. DOE shall solicit applications for financial 
assistance in a manner which provides for the maximum amount of 
competition feasible.
    (b) Restricted eligibility. If DOE restricts eligibility, an 
explanation of why the restriction of eligibility is considered 
necessary shall be included in the funding opportunity announcement, 
program rule, or published notice.
    (1) If the aggregate amount of DOE funds available for award under 
a funding opportunity announcement or published notice is $1 million or 
more, unless authorized by statute or program rule, such restriction of 
eligibility shall be:
    (i) Supported by a written determination initiated by the program 
office;
    (ii) Concurred in by legal counsel and the Contracting Officer; and
    (iii) Approved by an official no less than one level below the 
responsible program Assistant Secretary, Deputy Administrator, or other 
official of equivalent authority.
    (2) Where the amount of DOE funds is less than $1 million, the 
cognizant Head of Contracting Activity (HCA) and the Contracting 
Officer may approve the determination.
    (c) Noncompetitive financial assistance. DOE may award a grant or 
cooperative agreement on a noncompetitive basis only if the application 
satisfies one or more of the following selection criteria:
    (1) The activity to be funded is necessary to the satisfactory 
completion of, or is a continuation or renewal of, an activity 
presently being funded by DOE or another Federal agency, and for which 
competition for support would have a significant adverse effect on 
continuity or completion of the activity.
    (2) The activity is being or would be conducted by the applicant 
using its own resources or those donated or provided by third parties; 
however, DOE support of that activity would enhance the public benefits 
to be derived and DOE knows of no other entity which is conducting or 
is planning to conduct such an activity.
    (3) The applicant is a unit of government and the activity to be 
supported is related to the performance of a governmental function 
within the subject jurisdiction, thereby precluding DOE provision of 
support to another entity.
    (4) The applicant has exclusive domestic capability to perform the 
activity successfully, based upon unique equipment, proprietary data, 
technical expertise, or other such unique qualifications.
    (5) The award implements an agreement between the United States 
Government and a foreign government to fund a foreign applicant.
    (6) Time constraints associated with a public health, safety, 
welfare or national security requirement preclude competition.
    (7) The proposed project was submitted as an unsolicited proposal 
and represents a unique or innovative idea, method, or approach which 
would not be eligible for financial assistance under a recent, current, 
or planned funding opportunity announcement, and if, as determined by 
DOE, a competitive funding opportunity announcement would not be 
appropriate.
    (8) The responsible program Assistant Secretary, Deputy 
Administrator, or other official of equivalent authority determines 
that a noncompetitive award is in the public interest. This authority 
may not be delegated.
    (d) Approval requirements. (1) Where the amount of DOE funds is $1 
million or greater, determinations of noncompetitive awards shall be:
    (i) Documented in writing;
    (ii) Concurred in by the responsible program technical official and 
local legal counsel; and
    (iii) Approved, prior to award, by the responsible program 
Assistant Secretary, Deputy Administrator, or official of equivalent 
authority and the Contracting Officer. The approval authority may be 
delegated to one organizational level below the Assistant Secretary, 
Deputy Administrator, or official of equivalent authority.
    (2) Where the amount of DOE funds is less than $1 million, 
determinations of noncompetitive awards shall be:
    (i) Documented in writing;
    (ii) Concurred in by local legal counsel, unless for a particular 
award or class of awards of $1 million or less, review is waived by 
legal counsel; and
    (iii) Approved by the cognizant HCA and the Contracting Officer.


Sec.  600.8  Funding opportunity announcement.

    6. Section 600.8 is amended as follows:
    a. The section heading is revised as set forth above.
    b. In paragraph (a) introductory text, the first sentence is 
amended by removing ``Program announcement'' and adding ``Funding 
Opportunity Announcements (FOA)'' in its place.
    c. In paragraph (a)(1), the last sentence is amended by removing 
``Solicitations'' and adding ``FOAs'' in its place.
    d. In paragraph (a)(2) introductory text, the first sentence is 
amended by removing ``Program announcements'' and adding ``FOAs'' in 
its place.
    7. Section 600.10 is amended as follows:
    a. In paragraph (b), the first sentence is amended by removing 
``and in the number of copies''
    b. In paragraph (c)(1), the second sentence is amended by removing 
``or other approved DOE application form''
    c. Paragraph (c)(4) is removed.
    d. A new paragraph (f) is added to read as follows:


Sec.  600.10  Form and content of application.

* * * * *
    (f) Registration is required in the Central Contractor Registration 
(CCR) for all applications. Information on registration can be obtained 
at https://www.ccr.gov/Grantees.aspx.


Sec. Sec.  600.11 and 600.12  [Removed]

    8. Sections 600.11 and 600.12 are removed and reserved.

[[Page 28390]]

Sec.  600.14  [Reserved]

    9. Section 600.14 is added and reserved.


Sec.  600.15  [Amended]

    10. Section 600.15, paragraph (b)(2) is amended by removing 
``solicitation'' and adding ``funding opportunity announcement'' in its 
place.
    11. Section 600.16, is amended by redesignating paragraph (b) as 
paragraph (c), and by adding a new paragraph (b) to read as follows:


Sec.  600.16  Legal authority and effect of an award.

* * * * *
    (b) Recipients are free to accept or reject the award. A request to 
drawdown DOE funds constitutes acceptance; however DOE may require 
formal acceptance of an award.
* * * * *
    12. Section 600.17 is revised to read as follows:


Sec.  600.17  Contents of Award.

    Each financial assistance award shall be made on a cover agreement 
page, which contains basic identifying and funding information. The 
award will identify special terms and conditions, program regulations, 
the National Policy Assurances, and any other provisions necessary to 
establish the respective right, duties, obligations, and 
responsibilities of DOE and the recipient, consistent with the 
requirements of this part.


Sec.  600.18  [Removed]

    13. Section 600.18 is removed and reserved.


Sec.  600.19  [Amended]

    14. Section 600.19 is amended by removing, in the second sentence, 
``briefly'' and ``and, if for grounds other than unavailability of 
funds, shall offer the unsuccessful applicant the opportunity for a 
more detailed explanation upon request''.


Sec.  600.21  [Amended]

    15. Section 600.21, paragraph (a) is amended by removing 
``Sec. Sec.  600.153 and 600.242'' and adding ``Sec. Sec.  600.153, 
600.242 and 600.342'' in its place.
    16. Section 600.22 is amended as follows:
    a. In the last sentence of paragraph (a), the words ``available in 
10 CFR Part 1024'' are removed.
    b. Paragraphs (d) and (f)(1) are revised.
    c. Paragraphs (e), (f)(2), (f)(3) and (f)(4) are amended by 
removing ``Board'' and adding `` SPE'' in its place, for every 
occurrence.
    The revisions read as follows:


Sec.  600.22  Disputes and appeals.

* * * * *
    (d) Right of appeal. Except as provided in paragraph (f)(1) of this 
section, the final determination under paragraph (c) of this section 
may be appealed to the cognizant SPE for either DOE or the National 
Nuclear Security Administration (NNSA). The mailing address for the DOE 
SPE is Office of Procurement and Assistance Management, 1000 
Independence Ave., SW., Washington, DC 20585. The mailing address for 
the NNSA SPE is Office of Acquisition and Supply Management, 1000 
Independence Ave., SW., Washington, DC 20585.
* * * * *
    (f) Review on appeal. (1) The SPE shall have no jurisdiction to 
review
    (i) Any preaward dispute (except as provided in paragraph 
(f)(2)(ii) of this section), including use of any special restrictive 
condition pursuant to Sec. Sec.  600.114, 600.212, or 600.304;
    (ii) DOE denial of a request for a deviation under Sec. Sec.  
600.4, 600.103, 600.205, or 600.303 of this part;
    (iii) DOE denial of a request for a budget revision or other change 
in the approved project under Sec. Sec.  600.125, 600.127, 600.222, 
600.230, 600.315, or 600.317 of this part or under another term or 
condition of the award;
    (iv) Any DOE action authorized under Sec. Sec.  600.162(a)(1), (2), 
(3) or (5); 600.243(a)(1), (a)(3), or Sec. Sec.  600.352(a)(1), (2), 
(3) or (5) for suspensions only; or Sec. Sec.  600.162(a)(4), 
600.243(a)(4) or 600.352(a)(4) for actions disapproving renewal 
applications or other requests for extension of time or additional 
funding for the same project when related to recipient noncompliance, 
or such actions authorized by program rule;
    (v) Any DOE decision about an action requiring prior DOE approval 
under Sec. Sec.  600.144, 600.236, or 600.331 of this part or under 
another term or condition of the award; * * *


Sec.  600.23  [Removed]

    17. Section 600.23 is removed and reserved.


Sec.  600.24  [Amended]

    18. Section 600.24 is amended in paragraphs (a)(3) and (b) 
introductory text by removing ``or Sec.  600.243(a)'' and adding 
``Sec. Sec.  600.243(a), 600.312(g) or 600.352(a)'' in its place.
    19. Section 600.25 is amended in:
    a. Paragraph (a)(1) by removing ``or Sec.  600.243(a)'' and adding 
``Sec.  600.243(a) or 600.352(a)'' in its place.
    b. Paragraph (a)(2) by removing ``Sec.  600.23'' and adding ``2 CFR 
Part 180 and 901'' in its place.
    c. Paragraph (b) is revised.
    d. Paragraph (d) by removing ``or Sec. Sec.  600.243 through 
600.244'' and adding ``Sec. Sec.  600.243 through 600.244 or Sec. Sec.  
600.350 through 600.353'' in its place.
    e. Paragraph (f) by removing ``or Sec. Sec.  600.243 through 
600.244'' and adding ``Sec. Sec.  600.243 through 600.244 or Sec. Sec.  
600.350 through 600.353'' in its place.
    The revision reads as follows:


Sec.  600.25  Suspension and termination.

* * * * *
    (b) Notification requirements. Except as provided in Sec. Sec.  
600.24, 600.162(a) , 600.243(a) or 600.352(a) before suspending or 
terminating an award for cause, DOE shall mail to the awardee (by 
certified mail, return receipt requested) a separate written notice in 
addition to that required by Sec.  600.24(a) at least ten days prior to 
the effective date of the suspension or termination. Such notice shall 
include, as appropriate:
    (1) The factual and legal basis for the suspension or termination;
    (2) The effective date or dates of the DOE action;
    (3) If the action does not apply to the entire award, a description 
of the activities affected by the action;
    (4) Instructions concerning which costs shall be allowable during 
the period of suspension, or instructions concerning allowable 
termination costs, including in either case, instructions concerning 
any subgrants or contracts;
    (5) Instructions concerning required final reports and other 
closeout actions for terminated awards (see Sec. Sec.  600.170 through 
600.173, Sec. Sec.  600.250 through 600.252 and Sec. Sec.  600.350 
through 600.353);
    (6) A statement of the awardees' right to appeal a termination for 
cause pursuant to section 600.22; and
    (7) The dated signature of a DOE Contracting Officer.
* * * * *


Sec.  600.26  [Removed]

    20. Section 600.26 is removed and reserved.


Sec.  600.28  [Removed]

    21. Section 600.28 is removed and reserved.


Sec.  600.29  [Amended]

    22. Section 600.29 is amended as follows:
    a. Paragraph (b)(1), ``$100,000'' is removed and ``$250,000'' is 
added in its place.
    b. In paragraphs (b)(5) and (b)(6) ``Contracting Officer'' is 
capitalized.

[[Page 28391]]

    23. Section 600.30 is revised to read as follows:


Sec.  600.30  Cost sharing.

    In addition to the requirements of Sec. Sec.  600.123, 600.224, or 
600.313, the following requirements apply to research, development, 
demonstration and commercial application activities projects:
    (a) Cost sharing is required for most financial assistance awards 
for research, development, demonstration and commercial applications 
activities initiated after the enactment of the Energy Policy Act of 
2005 on August 8, 2005. This requirement does not apply to:
    (1) An award under the small business innovation research program 
or the small business technology transfer program; or
    (2) A program with cost sharing requirements defined by other than 
Section 988 of the Energy Policy Act of 2005 including other sections 
of the 2005 Act and the Energy Policy Act of 1992.
    (b) A cost share of at least 20 percent of the cost of the activity 
is required for research and development except where:
    (1) A research or development activity of a basic or fundamental 
nature has been excluded by an appropriate officer of the Department, 
generally an Under Secretary; or
    (2) The Secretary or delegatee has determined it is necessary and 
appropriate to reduce or eliminate the cost sharing requirement for a 
research and development activity of an applied nature.
    (c) A cost share of at least 50 percent of the cost of a 
demonstration or commercial application program or activity is required 
unless the Secretary or delegatee has determined that it is necessary 
and appropriate to reduce the cost sharing requirements, taking into 
consideration any technological risk relating to the activity.
    (d) Cost share shall be provided by non-Federal funds unless 
otherwise authorized by statute. In calculating the amount of the non-
Federal contribution:
    (1) Base the non-Federal contribution on total project costs, 
including the cost of work where funds are provided directly to a 
partner, consortium member or subrecipient, such as a Federally Funded 
Research and Development Center;
    (2) Include the following costs as allowable in accordance with the 
applicable cost principles:
    (i) Cash;
    (ii) Personnel costs;
    (iii) The value of a service, other resource, or third party in-
kind contribution determined in accordance with the applicable Circular 
of the Office of Management and Budget;
    (iv) Indirect costs or facilities and administrative costs; and/or
    (v) Any funds received under the power program of the Tennessee 
Valley Authority (except to the extent that such funds are made 
available under an annual appropriation Act);
    (3) Exclude the following costs:
    (i) Revenues or royalties from the prospective operation of an 
activity beyond the time considered in the award;
    (ii) Proceeds from the prospective sale of an asset of an activity; 
or
    (iii) Other appropriated Federal funds.
    (iv) Repayment of the Federal share of a cost-shared activity under 
Section 988 of the Energy Policy Act of 2005 shall not be a condition 
of the award.


Sec.  600.31  [Amended]

    24. Section 600.31 is amended as follows:
    a. In paragraph (c), Contracting Officer is capitalized in all 
occurrences.
    b. In paragraph (d) introductory text, Contracting Officer is 
capitalized.
    c. In paragraph (f)(5), Contracting Officer is capitalized.
    25. Section 600.112 is revised to read as follows:


Sec.  600.112  Forms for applying for Federal assistance.

    (a) An application for an award shall be on the form or in the 
format specified in a program rule or in the funding opportunity 
announcement. When a version of the Standard Form 424 is not used, DOE 
shall indicate whether the application is subject to review by the 
State under Executive Order 12372.
    (b) DOE may request and the applicant shall submit the minimum 
budgetary information necessary to evaluate the costs of the proposed 
project.
    (c) DOE may, subsequent to receipt of an application, request 
additional information from an applicant when necessary for 
clarification or to make informed preaward determinations.
    (d) DOE may require that an application for a continuation or 
renewal award be made in the format or on the forms authorized by 
paragraphs (a) and (b) of this section.


Sec.  600.113  [Amended]

    26. Section 600.113 is amended by removing ``10 CFR 1036'' and 
adding ``2 CFR 180 and 901'' in its place.


Sec.  600.117  [Removed]

    27. Section 600.117 is removed and reserved.


Sec.  600.305  [Amended]

    28. Section 600.305 is amended by removing ``10 CFR 1036'' and 
adding ``2 CFR 180 and 901'' in its place.
    29. Under the authority of the Department of Energy Organization 
Act, Public Law 95-91, 91 Stat. 577 (42 U.S.C. 7101, et seq.); E.O. 
10789; Public Law 95-224, 92 Stat. 3 (41 U.S.C. 501-509), part 1024 is 
removed.

PART 1024--[REMOVED]

[FR Doc. E8-11005 Filed 5-15-08; 8:45 am]
BILLING CODE 6450-01-P