Administrative Requirements for Grants and Cooperative Agreements, 53235-53240 [2015-21693]
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53235
Rules and Regulations
Federal Register
Vol. 80, No. 171
Thursday, September 3, 2015
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF ENERGY
2 CFR Part 910
RIN 1991–AC02
Administrative Requirements for
Grants and Cooperative Agreements
Department of Energy.
Final rule.
AGENCY:
ACTION:
The Department of Energy
(DOE) is adopting, a rule amending the
administrative requirements for grants
and cooperative agreements with forprofit organizations. The regulations
modify title provisions, and
requirements related to the handling of
real property and equipment acquired
with federal funds. The regulations also
add provisions related to export control
requirements and supporting U.S.
manufacturing, reporting on utilization
of subject inventions, novation of
financial assistance agreements, and
changes of control of recipients.
DATES: Effective: October 5, 2015.
FOR FURTHER INFORMATION CONTACT:
Ellen Colligan, Procurement Analyst,
U.S. Department of Energy, Office of
Acquisition Management, Contract and
Financial Assistance Policy Division
MA–611, Telephone: (202) 287–1776.
Email: ellen.colligan@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Table of Contents
I. Summary
II. Procedural Requirements
A. Review under Executive Order 12866
B. Review under Executive Order 12988
C. Review under the Regulatory Flexibility
Act
D. Review under the Paperwork Reduction
Act
E. Review under the National
Environmental Policy Act
F. Review under Executive Order 13132
G. Review under the Unfunded Mandates
Reform Act of 1995
H. Review under the Treasury and General
Government Appropriations Act, 1999
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I. Review under Executive Order 13211
J. Review under the Treasury and General
Government Appropriations Act, 2001
K. Review under Executive Order 13609
L. Approval by the Office of the Secretary
of Energy
M. Congressional Notification
I. Summary
The Department makes substantial
use of financial assistance awards
(grants and cooperative agreements) to
for-profit organizations to meet its
mission goals. To manage these awards,
the Department added requirements
specifying changes and additions to its
Uniform Administrative Requirements,
Cost Principles, and Audit
Requirements for Federal Awards. On
May 15, 2014, a Notice of Proposed
Rulemaking (NOPR) was published in
the Federal Register (79 FR 27795) that
detailed changes to the rules for forprofit recipients.
DOE is amending the rule by adding
provisions concerning: (1) The
Department’s title to and interest in
property purchased by financial
assistance recipients with Federal
funds; (2) the Department’s ability to
monitor and control the use of Federal
funds, property purchased with those
funds, and any intellectual property
developed with such funds; (3) the
related issues of novation (that is, the
transfer of a financial assistance
agreement from one recipient entity to
another) and of change of control of a
recipient (that is, a transfer of control of
the recipient entity from one individual,
group of individuals or entity, to
another); (4) reporting by recipients
regarding the utilization of inventions
developed with Federal funds; and (5)
export controls applicable to inventions
and technology developed with Federal
funds, and support for U.S.
manufacturing of inventions and
technology developed with Federal
funds.
DOE received no comments from
members of the public in response to
the NOPR. Nevertheless, DOE made the
following technical changes to the text
of the rule to address the codification of
the Uniform Administrative
Requirements, Cost Principles and
Audit Requirements for Federal Awards
at 2 CFR part 200 and the relocation of
the Department’s Administrative
Requirements for Grants and
Cooperative Agreements from 10 CFR
part 600 to 2 CFR part 910 (79 FR
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76024). As a result, the regulatory text
proposed as amendments to part 600 are
adopted unchanged as amendments to
part 910.
(1) The text proposed as § 600.304 is
renumbered and adopted as § 910.372.
(2) The text proposed as § 600.321 is
renumbered and adopted as § 910.360.
(3) The text proposed as § 600.326 is
renumbered and adopted as § 910.364.
(4) The text proposed as § 600.327 is
renumbered and adopted as § 910.366.
(5) The text proposed as § 600.354 is
renumbered and adopted as § 910.368.
(6) The text proposed as § 600.355 is
renumbered and adopted as § 910.370.
III. Procedural Requirements
A. Review Under Executive Orders
12866 and 13563
Today’s regulatory action has been
determined to be a ‘‘significant
regulatory action’’ under Executive
Order 12866, ‘‘Regulatory Planning and
Review,’’ 58 FR 51735 (October 4, 1993).
Accordingly, this rule was reviewed by
the Office of Information and Regulatory
Affairs within the Office of Management
and Budget.
DOE has also reviewed this regulation
pursuant to Executive Order 13563,
issued on January 18, 2011 (76 FR 3281
(Jan. 21, 2011)). Executive Order 13563
is supplemental to, and explicitly
reaffirms the principles, structures, and
definitions governing, regulatory review
established in Executive Order 12866.
To the extent permitted by law, agencies
are required by Executive Order 13563
to: (1) Propose or adopt a regulation
only upon a reasoned determination
that its benefits justify its costs
(recognizing that some benefits and
costs are difficult to quantify); (2) tailor
regulations to impose the least burden
on society, consistent with obtaining
regulatory objectives, taking into
account, among other things, and to the
extent practicable, the costs of
cumulative regulations; (3) select, in
choosing among alternative regulatory
approaches, those approaches that
maximize net benefits (including
potential economic, environmental,
public health and safety, and other
advantages; distributive impacts; and
equity); (4) to the extent feasible, specify
performance objectives, rather than
specifying the behavior or manner of
compliance that regulated entities must
adopt; and (5) identify and assess
available alternatives to direct
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regulation, including providing
economic incentives to encourage the
desired behavior, such as user fees or
marketable permits, or providing
information upon which choices can be
made by the public.
DOE emphasizes as well that
Executive Order 13563 requires agencies
to use the best available techniques to
quantify anticipated present and future
benefits and costs as accurately as
possible. In its guidance, the Office of
Information and Regulatory Affairs has
emphasized that such techniques may
include identifying changing future
compliance costs that might result from
technological innovation or anticipated
behavioral changes. DOE believes that
today’s Final Rule is consistent with
these principles, including the
requirement that, to the extent
permitted by law, agencies adopt a
regulation only upon a reasoned
determination that its benefits justify its
costs and, in choosing among alternative
regulatory approaches, those approaches
maximize net benefits.
B. 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; and
(3) provide a clear legal standard for
affected conduct rather than a general
standard and promote simplification
and burden reduction.
With regard to the review required by
section 3(a), 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 Attorney
General. Section 3(c) of Executive Order
12988 requires Executive agencies to
review regulations in light of applicable
standards in section 3(a) and section
3(b) to determine whether they are met
or 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; these
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regulations meet the relevant standards
of Executive Order 12988.
C. Review Under the Regulatory
Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires preparation
of a 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. This rule will not have a
significant impact on small entities as it
applies to only for-profit entities
(excluding small non-profits,
individuals or other small entities not
set up as a for-profit.) This rule also
excludes small for-profit entities
receiving awards through SBIR and
STTR programs from many
requirements. Historically the awards
made by DOE under Subchapter D are
to businesses considered large in their
industry or field. Accordingly, DOE
certifies that this rule would not have a
significant economic impact on a
substantial number of small entities,
and, therefore, no regulatory flexibility
analysis has been prepared.
D. Review Under the Paperwork
Reduction Act
This rule would require the
preparation and submission of a UCC
financing statement for awards where
the Federal share exceeds $1 million.
This collection of information is
required for the Department to protect
the taxpayers by clarifying the rights to
real property and equipment purchased
under financial assistance awards.
The collection of information for DOE
financial assistance awards has been
approved by OMB under control
number 1910–0400. Collection of the
UCC–1 form is covered by this control
number.
E. Review Under the National
Environmental Policy Act
DOE has concluded that promulgation
of this rule falls into a class of actions
which would not individually or
cumulatively have significant impact on
the human environment, as determined
by DOE’s regulations (10 CFR part 1021,
subpart D) implementing the National
Environmental Policy Act (NEPA) of
1969 (42 U.S.C. 4321 et seq.).
Specifically, this rule is categorically
excluded from NEPA review because
the amendments to the DEAR are
strictly procedural (categorical
exclusion A6). Therefore, this rule does
not require an environmental impact
statement or environmental assessment
pursuant to NEPA.
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F. 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 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.
G. Review Under the Unfunded
Mandates Reform Act of 1995
The Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4) generally
requires a Federal agency to perform a
detailed assessment of costs and
benefits of any rule imposing a Federal
Mandate with costs to State, local or
tribal governments, or to the private
sector, of $100 million or more. This
rulemaking does not impose a Federal
mandate on State, local or tribal
governments or on the private sector.
H. Review Under the Treasury and
General Government Appropriations
Act, 1999
Section 654 of the Treasury and
General Government Appropriations
Act, 1999 (Pub. L. 105–277), requires
Federal agencies to issue a Family
Policymaking Assessment for any rule
or policy that may affect family wellbeing. This rule will have no impact on
family well-being. Accordingly, DOE
has concluded that it is not necessary to
prepare a Family Policymaking
Assessment.
I. 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 Office of
Information and Regulatory Affairs
(OIRA), Office of Management and
Budget, a Statement of Energy Effects for
any significant energy action. A
‘‘significant energy action’’ is defined as
any action by an agency that
promulgates 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
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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.
Today’s rule is not a significant energy
action. Accordingly, DOE has not
prepared a Statement of Energy Effects.
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J. 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 notice under the OMB
and DOE guidelines and has concluded
that it is consistent with applicable
policies in those guidelines.
K. Review Under Executive Order 13609
Executive Order 13609 of May 1,
2012, ‘‘Promoting International
Regulatory Cooperation,’’ requires that,
to the extent permitted by law and
consistent with the principles and
requirements of Executive Order 13563
and Executive Order 12866, each
Federal agency shall:
(a) If required to submit a Regulatory
Plan pursuant to Executive Order 12866,
include in that plan a summary of its
international regulatory cooperation
activities that are reasonably anticipated
to lead to significant regulations, with
an explanation of how these activities
advance the purposes of Executive
Order 13563 and this order;
(b) Ensure that significant regulations
that the agency identifies as having
significant international impacts are
designated as such in the Unified
Agenda of Federal Regulatory and
Deregulatory Actions, on RegInfo.gov,
and on Regulations.gov;
(c) In selecting which regulations to
include in its retrospective review plan,
as required by Executive Order 13563,
consider:
(i) Reforms to existing significant
regulations that address unnecessary
differences in regulatory requirements
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between the United States and its major
trading partners, consistent with section
1 of this order, when stakeholders
provide adequate information to the
agency establishing that the differences
are unnecessary; and
(ii) Such reforms in other
circumstances as the agency deems
appropriate; and
(d) For significant regulations that the
agency identifies as having significant
international impacts, consider, to the
extent feasible, appropriate, and
consistent with law, any regulatory
approaches by a foreign government that
the United States has agreed to consider
under a regulatory cooperation council
work plan.
DOE has reviewed this rule under the
provisions of Executive Order 13609
and determined that the rule complies
with all requirements set forth in the
order.
L. Approval by the Office of the
Secretary of Energy
The Office of the Secretary of Energy
has approved issuance of this rule.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will
report to Congress on the promulgation
of this rule prior to its effective date.
The report will state that it has been
determined that the rule is not a ‘‘major
rule’’ as defined by 5 U.S.C. 804(2).
List of Subjects in 2 CFR Part 910
Accounting, Administrative practice
and procedure, Grant programs,
Reporting and recordkeeping
requirements.
Issued in Washington, DC, on: August 21,
2015.
Patrick M. Ferraro
Director, Office of Acquisition Management.
Joseph F. Waddell,
Director, Office of Acquisition Management,
National Nuclear Security Administration.
For the reasons stated in the
preamble, the Department of Energy is
amending part 910 of chapter II, title 2
of the Code of Federal Regulations to
read as follows:
PART 910—UNIFORM
ADMINISTRATIVE REQUIREMENTS,
COST PRINCIPLES, AND AUDIT
REQUIREMENTS FOR FEDERAL
AWARDS
1. The authority citation for part 910
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.; 2 CFR part
200.
■
2. Revise § 910.360 to read as follows:
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§ 910.360
53237
Real property and equipment.
(a) Prior approvals for acquisition
with Federal funds. Recipients may
purchase real property or equipment
with an acquisition cost per unit of
$5,000 or more in whole or in part with
Federal funds only with the prior
written approval of the contracting
officer or in accordance with express
award terms.
(b) Title. Unless a statute specifically
authorizes and the award specifies that
title to property vests unconditionally in
the recipient, title to real property or
equipment vests in the recipient, subject
to all terms and conditions of the award
and that the recipient shall:
(1) Use the real property or equipment
for the authorized purposes of the
project until funding for the project
ceases, or until the real property or
equipment is no longer needed for the
purposes of the project, as may be
determined by the contracting officer;
(2) Not encumber or permit any
encumbrance on the real property or
equipment without the prior written
approval of the contracting officer;
(3) Use and dispose of the real
property or equipment in accordance
with paragraphs (e), (f), and (g) of this
section; and
(4) Properly record, and consent to the
Department’s ability to properly record
if the recipient fails to do so, UCC
financing statement(s) for all equipment
purchased with Federal funds
(Financial assistance awards made
under the Small Business Innovation
Research/Small Business Technology
Transfer (SBIR/STTR) program are
exempt from this requirement unless
otherwise specified within the grant
agreement); such a filing is required
when the Federal share of the financial
assistance agreement is more than
$1,000,000, and the Contracting Officer
may require it in his or her discretion
when the Federal share is less than
$1,000,000. These financing
statement(s) must be approved in
writing by the contracting officer prior
to the recording, and they shall provide
notice that the recipient’s title to all
equipment (not real property) purchased
with Federal funds under the financial
assistance agreement is conditional
pursuant to the terms of this section,
and that the Government retains an
undivided reversionary interest in the
equipment. The UCC financing
statement(s) must be filed before the
contracting officer may reimburse the
recipient for the Federal share of the
equipment unless otherwise provided
for in the relevant financial assistance
agreement. The recipient shall further
make any amendments to the financing
statements or additional recordings,
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including appropriate continuation
statements, as necessary or as the
contracting officer may direct.
(c) Remedies. If the recipient fails at
any time to comply with any of the
conditions or requirements of paragraph
(b) of this section, then the contracting
officer may:
(1) Notify the recipient of
noncompliance in accordance with 2
CFR 200.338, which may lead to
suspension or termination of the award;
(2) Impose special award conditions
pursuant to 2 CFR 200.205 and 200.207
as amended by 2 CFR 910.372;
(3) Issue instructions to the recipient
for disposition of the property in
accordance with paragraph (g) of this
section;
(4) In the case of a failure to properly
record UCC financing statement(s) in
accordance with paragraph (b)(4) of this
section, effect such a recording; and
(5) Apply other remedies that may be
legally available.
(d) Title to and Federal interest in real
property or equipment offered as costshare. As provided in 2 CFR 200.306(h),
depending upon the purpose of the
Federal award, a recipient may offer the
fair market value of real property or
equipment that is purchased with
recipient’s funds or that is donated by
a third party to meet a portion of any
required cost sharing or matching. If a
resulting award includes such property
as a portion of the recipient’s cost share,
the recipient holds conditional title to
the property and the Government has an
undivided reversionary interest in the
share of the property value equal to the
Federal participation in the project. The
property is treated as if it had been
acquired in part with Federal funds, and
is subject to the provisions of paragraph
(b) of this section and to the provisions
of 2 CFR 200.311 and 200.313.
(e) Insurance. Recipients must, at a
minimum, provide the equivalent
insurance coverage for real property and
equipment acquired with Federal funds
as provided to property owned by the
recipient.
(f) Additional uses during and after
the project period. Unless a statute and
the award terms expressly provide for
the vesting of unconditional title to real
property or equipment with the
recipient, the real property or
equipment acquired wholly or in part
with Federal funds is subject to the
following:
(1) During the Project Period, the
recipient must make real property and
equipment available for use on other
projects or programs, if such other use
does not interfere with the work on the
project or program for which the real
property or equipment was originally
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acquired. Use of the real property or
equipment on other projects is subject to
the following order of priority:
(i) Activities sponsored by DOE
grants, cooperative agreements, or other
assistance awards;
(ii) Activities sponsored by other
Federal agencies’ grants, cooperative
agreements, or other assistance awards;
(iii) Activities under Federal
procurement contracts or activities not
sponsored by any Federal agency. If so
used, use charges must be assessed to
those activities. For real property or
equipment, the use charges must be at
rates equivalent to those for which
comparable real property or equipment
may be leased.
(2) After Federal funding for the
project ceases, or if, as may be
determined by the contracting officer,
the real property or equipment is no
longer needed for the purposes of the
project, or if the recipient suspends
work on the project, the recipient may
use the real property or equipment for
other projects, if:
(i) There are Federally sponsored
projects for which the real property or
equipment may be used;
(ii) The recipient obtains written
approval from the contracting officer to
do so. The contracting officer must
ensure that there is a formal change of
accountability for the real property or
equipment to a currently funded Federal
award; and
(iii) The recipient’s use of the real
property or equipment for other projects
is in the same order of priority as
described in paragraph (e)(1) of this
section.
(iv) If the only use for the real
property or equipment is for projects
that have no Federal sponsorship, the
recipient must proceed with disposition
of the real property or equipment in
accordance with paragraph (g) of this
section.
(g) Disposition. (1) If, as determined
by the contracting officer, an item of real
property or equipment is no longer
needed for Federally sponsored projects,
or if the recipient has suspended work
on the project, the recipient has the
following options:
(i) If the property is equipment with
a current per unit fair market value of
less than $5,000, it may be retained,
sold, or otherwise disposed of with no
further obligation to DOE.
(ii) If the property is equipment
(rather than real property) and with the
written approval of the contracting
officer, the recipient may replace it with
an item that is needed currently for the
project by trading in or selling to offset
the costs of the replacement equipment.
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(iii) The recipient may elect to retain
title, without further obligation to the
Federal Government, by compensating
the Federal Government for that
percentage of the current fair market
value of the real property or equipment
that is attributable to the Federal
participation in the project.
(iv) If the recipient does not elect to
retain title to real property or equipment
or does not request approval to use
equipment as trade-in or offset for
replacement equipment, the recipient
must request disposition instructions
from the responsible agency.
(2) If a recipient requests disposition
instructions, the contracting officer
must:
(i) For either real property or
equipment, issue instructions to the
recipient for disposition of the property
no later than 120 calendar days after the
recipient’s request. The contracting
officer’s options for disposition are to
direct the recipient to:
(A) Transfer title to the real property
or equipment to the Federal
Government or to a third party
designated by the contracting officer
provided that, in such cases, the
recipient is entitled to compensation for
its attributable percentage of the current
fair market value of the real property or
equipment, plus any reasonable
shipping or interim storage costs
incurred; or
(B) Sell the real property or
equipment and pay the Federal
Government for that percentage of the
current fair market value of the property
that is attributable to the Federal
participation in the project (after
deducting actual and reasonable selling
and fix-up expenses, if any, from the
sale proceeds). If the recipient is
authorized or required to sell the real
property or equipment, the recipient
must use competitive procedures that
result in the highest practicable return.
(3) If the contracting officer fails to
issue disposition instructions within
120 calendar days of the recipient’s
request, the recipient must dispose of
the real property or equipment through
the option described in paragraph
(g)(2)(i)(B) of this section.
■ 3. Add § 910.364 to subpart D to read
as follows:
§ 910.364 Reporting on utilization of
subject inventions.
(a) Unless otherwise instructed, a
recipient that obtains title to an
invention made under an award shall
submit annual reports on the utilization
or efforts to obtain utilization of the
invention for at least 10 years from the
date the invention was first disclosed to
DOE (Utilization Reports). Utilization
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Reports shall include at least the
following information:
(1) Status of development;
(2) Date of first commercial sale or
use;
(3) Gross royalties received by the
recipient;
(4) The location of any manufacture of
products embodying the subject
invention; and
(5) Any such other data and
information as DOE may reasonably
specify.
(b) To the extent data or information
supplied in a Utilization Report is
considered by the recipient to be
privileged and confidential and is so
marked by the recipient, DOE agrees
that, to the extent permitted by law, it
shall not disclose such information to
persons outside the Government.
■ 4. Add § 910.366 to subpart D to read
as follows:
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§ 910.366 Export Control and U.S.
Manufacturing and Competitiveness.
(a) Export Control. Any recipient of
any award for research, development
and/or demonstration must comply with
all applicable U.S. laws regarding export
control.
(b) U.S. Manufacturing and
Competitiveness. It is the policy of DOE
to ensure that DOE-funded research,
development, and/or demonstration
projects foster domestic manufacturing.
Funding opportunity announcements
(FOAs), therefore, may require that
applicants submit a ‘‘U.S.
Manufacturing Plan’’ in their
applications. Such FOAs may encourage
U.S. Manufacturing Plans to include
proposals by recipients and any subrecipients to manufacture DOE-funded
technologies in the United States;
however, the FOAs will also state that
these plans should not include
requirements regarding the source of
inputs used during the manufacturing
process. Regardless of whether such
plans will be part of the merit review
criteria or a program policy factor, and
to the extent legally permissible, all
awards subject to this subpart, including
subawards, for research, development,
and/or demonstration, must include a
provision that provides plans by the
recipient and any subrecipients to
support manufacturing in the United
States of technology developed under
the award. The recipient and any
subrecipients must agree to make those
plans binding on any assignee or
licensee or any entity otherwise
acquiring rights to any subject invention
or developed technology covered under
the award. A recipient, subrecipient,
assignee, licensee, or any entity
otherwise acquiring the rights to any
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13:52 Sep 02, 2015
Jkt 235001
subject invention or developed
technology may request a waiver or
modification of U.S. manufacturing
plans from DOE. DOE will determine
whether to approve such a waiver in
light of equitable considerations,
including, for example, whether the
requester satisfactorily shows that the
planned support is not economically
feasible and whether there is a
satisfactory alternative net benefit to the
U.S. economy if the requested waiver or
modification is approved.
■ 5. Add § 910.368 to subpart D to read
as follows:
§ 910.368
Change of control.
(a) Change of control is defined as any
of the following:
(1) Any event by which any
individual or entity other than the
recipient becomes the beneficial owner
of more than 50% of the total voting
power of the voting stock of the
recipient;
(2) The recipient merges with or into
any entity other than in a transaction in
which the shares of the recipient’s
voting stock are converted into a
majority of the voting stock of the
surviving entity;
(3) The sale, lease or transfer of all or
substantially all of the assets of the
recipient to any individual or entity
other than the recipient in one or a
series of related transactions;
(4) The adoption of a plan relating to
the liquidation or dissolution of the
recipient; or
(5) Where the recipient is a whollyowned subsidiary at the time of award
or novation, and the recipient’s parent
entity undergoes a change of control as
defined in this section.
(b) When the Federal share of the
financial assistance agreement is more
than $10,000,000 or DOE requests the
information in writing, the recipient
must provide the contracting officer
with documentation identifying all
parties who exercise control in the
recipient at the time of award.
(c) When there is a change of control
of a recipient, or the recipient has
reason to know a change of control is
likely, the recipient must notify the
contracting officer within 30 days of its
knowledge of such change of control.
Such notification must include, at a
minimum, copies of documents
necessary to reflect the transaction that
resulted or will result in the change of
control, and identification of all entities,
individuals or other parties to such
transaction. Failure to notify the
contracting officer of a change of control
is grounds for suspension or termination
of the award for failure to comply with
the terms and conditions of the award.
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
53239
(d) The contracting officer must
authorize a change of control for the
purposes of the award. Failure to
receive the contracting officer’s
authorization for a change of control
may lead to a suspension of the award,
termination for failure to comply with
the terms and conditions of the award,
or imposition of special award
conditions pursuant to 2 CFR 910.372.
Special award conditions may include
but are not limited to:
(1) Additional reporting requirements
related to the change of control; and
(2) Suspension of payments due to the
recipient.
■ 6. Add § 910.370 to subpart D to read
as follows:
§ 910.370 Novation of financial assistance
agreements.
(a) Financial assistance agreements
are not assignable absent written
consent from the contracting officer. At
his or her sole discretion, the
contracting officer may, through
novation, recognize a third party as the
successor in interest to a financial
assistance agreement if such recognition
is in the Government’s interest,
conforms with all applicable laws and
the third party’s interest in the
agreement arises out of the transfer of:
(1) All of the recipient’s assets; or
(2) The entire portion of the assets
necessary to perform the project
described in the agreement.
(b) When the contracting officer
determines that it is not in the
Government’s interest to consent to the
novation of a financial assistance
agreement from the original recipient to
a third party, the original recipient
remains subject to the terms of the
financial assistance agreement, and the
Department may exercise all legally
available remedies under 2 CFR 200.338
through 200.342, or that may be
otherwise available, should the original
recipient not perform.
(c) The contracting officer may require
submission of any documentation in
support of a request for novation,
including but not limited to documents
identified in 48 CFR Subpart 42.12. The
contracting officer may use the format in
48 CFR 42.1204 as guidance for
novation agreements identified in
paragraph (a) of this section.
■ 7. Add § 910.372 to subpart D to read
as follows:
§ 910.372
Special award conditions.
(a) In addition to the requirements of
2 CFR 200.205, the following actions
may require the use of Specific
Conditions as identified in 2 CFR
200.207:
E:\FR\FM\03SER1.SGM
03SER1
53240
Federal Register / Vol. 80, No. 171 / Thursday, September 3, 2015 / Rules and Regulations
(1) Has not conformed to the terms
and conditions of a previous award;
(2) Has a change of control as defined
in § 910.368;
(3) Fails to comply with real property
and equipment requirements at
§ 910.360; or
(4) Is not otherwise responsible.
DATES:
[FR Doc. 2015–21693 Filed 9–2–15; 8:45 am]
I. Background
BILLING CODE 6450–01–P
General
On February 7, 2014, the President
signed the 2014 Farm Bill. Amendments
exclude medical marijuana from
allowable medical expense deductions
for SNAP purposes, update the QC error
tolerance threshold for Fiscal Year (FY)
2014 and index this amount for FY 2015
and thereafter based on an adjustment
in the Thrifty Food Plan (TFP),
eliminate the Department’s ability to
waive any portion of a State’s QC
Liability amount except as provided in
SNAP regulations at 7 CFR 275.23(f),
ensure that State agencies may use High
Performance Bonus Payments only for
SNAP administrative expenses, and
prohibit SNAP benefits from being used
to pay for container deposit fees in
excess of the State fee reimbursement.
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 271, 273, 274, and 275
RIN 0584–AE48
Supplemental Nutrition Assistance
Program (SNAP): Agricultural Act of
2014 Nondiscretionary Provisions
Food and Nutrition Service
(FNS), USDA.
ACTION: Final rule.
AGENCY:
The Food and Nutrition
Service (FNS) of the Department of
Agriculture (USDA) is amending
Supplemental Nutrition Assistance
Program (SNAP or Program) regulations
to codify certain nondiscretionary
provisions of the Agricultural Act of
2014 (the ‘‘2014 Farm Bill’’).
This final rule excludes medical
marijuana from being treated as an
allowable medical expense for the
purposes of determining the excess
medical expense deduction under
SNAP. This rule also amends multiple
SNAP regulations pursuant to
nondiscretionary changes under the
2014 Farm Bill related to Quality
Control (QC). This rule updates the QC
error tolerance threshold to no more
than $37 for Fiscal Year (FY) 2014. For
FY 2015 and thereafter, the QC
tolerance level will be set annually
based on an adjustment in the Thrifty
Food Plan (TFP). In addition, this rule
eliminates USDA’s ability to waive any
portion of a State’s QC liability amount,
except as provided in SNAP regulations
that requires State agencies to use SNAP
High Performance Bonus Payments only
for SNAP administrative expenses
including investments in technology,
improvements in administration and
distribution, and actions to prevent
fraud, waste and abuse. Finally, this
rule amends SNAP regulations
pertaining to the use of SNAP benefits
to pay for container deposit fees. The
2014 Farm Bill prohibits SNAP benefits
from being used to pay for container
deposit fees in excess of any State fee
reimbursement required to purchase
food in a returnable bottle or can.
rmajette on DSK7SPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
13:52 Sep 02, 2015
Jkt 235001
This rule will become effective
on November 2, 2015.
FOR FURTHER INFORMATION CONTACT:
Vicky T. Robinson, FNS, 3101 Park
Center Drive, Room #418, Alexandria,
VA 22302, 703–305–2476.
SUPPLEMENTARY INFORMATION:
Medical Marijuana
USDA is amending SNAP regulations
at 7 CFR part 273 in accordance with
Section 4005 of the 2014 Farm Bill.
Under Section 4005, USDA is instructed
to promulgate regulations to explicitly
prohibit States from utilizing the excess
medical deduction to deduct medical
marijuana costs from a household’s
income for SNAP purposes.
Under the Controlled Substances Act,
21 U.S.C. 801 et seq., marijuana is a
Schedule I controlled substance that has
no currently accepted medical use and
cannot be prescribed for medicinal
purposes. 21 U.S.C. 812(b)(1)(C). SNAP
is a Federal program and must conform
to Federal law regarding illegal
substances. Therefore, marijuana and
other Schedule I controlled substances
are not allowable medical expenses
under SNAP. USDA is incorporating
this requirement into the regulations at
new subsection 7 CFR
273.9(d)(3)(iii)(B).
Error Tolerance Threshold
Section 16 (c)(1)(A)(ii)(I) of the Food
and Nutrition Act of 2008 was amended
by Section 4019 of the 2014 Farm Bill
to require that the Secretary set the
tolerance level for excluding small
errors for fiscal year 2014, at an amount
not greater than $37. Until that point in
time, the QC tolerance level was at $50,
meaning only variances that exceed $50
were included in the calculation of the
payment error rate. This threshold does
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
not excuse a State from following
correction or claims procedures for any
over or under issuance that is under the
tolerance level. Typically, changes that
affect the QC review period are made
effective the upcoming fiscal year so
that State and Federal QC reviewers can
prepare for the procedural and
systematic changes required. However,
since the QC review period for FY 2014
had already begun when the Act was
signed, the Department was required to
take immediate action at that point on
announcement of a new threshold, and
established the new $37 threshold
through an implementing memorandum
on March 21, 2014. This rule codifies
what was put in place via that
implementing memorandum.
Section 4019 of the 2014 Farm Bill
also requires USDA to adjust FY 2014’s
threshold by the percentage by which
the Thrifty Food Plan (TFP) is adjusted
under Section 3(u)(4) of the Food and
Nutrition Act of 2008. The Department
uses three TFPs to establish benefit
levels, one for the 48 contiguous States
and District of Columbia, one for
Alaska, and one for Hawaii. Although
there are different TFPs used in SNAP
benefit calculation, the Department is
required to have one national
performance measure for State payment
error rates. For that reason, the
Department has concluded that it has no
discretion in using a single TFP-related
adjustment mechanism for all States.
For FY 2015, the Department adjusted
the threshold amount by using the TFP
for the 48 contiguous States and District
of Columbia as the TFP baseline for all
53 State agencies, resulting in a
tolerance level of $38 for FY 2015. In
this final rule, the Department is
establishing that the threshold will be
adjusted each year by using the TFP for
the 48 contiguous States and District of
Columbia. A policy memo will be
issued to States notifying them of the
adjustment to the threshold amount at
the start of each QC review period.
Liability Amount Determinations
After each fiscal year, in accordance
with regulatory requirements, a
determination is made for each State
agency as to whether or not that FY’s
QC Error Rate would lead to the State
being assessed a liability amount. State
agencies assessed liabilities are given
the opportunity to pay their liabilities in
full or designate 50 percent of the
liability amount as at-risk for repayment
if a liability amount for an excessive
payment error rate is established for the
following FY. State agencies must then
designate the other 50 percent of the
liability amount to be used for new
investment in approved activities to
E:\FR\FM\03SER1.SGM
03SER1
Agencies
[Federal Register Volume 80, Number 171 (Thursday, September 3, 2015)]
[Rules and Regulations]
[Pages 53235-53240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21693]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 80, No. 171 / Thursday, September 3, 2015 /
Rules and Regulations
[[Page 53235]]
DEPARTMENT OF ENERGY
2 CFR Part 910
RIN 1991-AC02
Administrative Requirements for Grants and Cooperative Agreements
AGENCY: Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) is adopting, a rule amending
the administrative requirements for grants and cooperative agreements
with for-profit organizations. The regulations modify title provisions,
and requirements related to the handling of real property and equipment
acquired with federal funds. The regulations also add provisions
related to export control requirements and supporting U.S.
manufacturing, reporting on utilization of subject inventions, novation
of financial assistance agreements, and changes of control of
recipients.
DATES: Effective: October 5, 2015.
FOR FURTHER INFORMATION CONTACT: Ellen Colligan, Procurement Analyst,
U.S. Department of Energy, Office of Acquisition Management, Contract
and Financial Assistance Policy Division MA-611, Telephone: (202) 287-
1776. Email: ellen.colligan@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary
II. Procedural Requirements
A. Review under Executive Order 12866
B. Review under Executive Order 12988
C. Review under the Regulatory Flexibility Act
D. Review under the Paperwork Reduction Act
E. Review under the National Environmental Policy Act
F. Review under Executive Order 13132
G. Review under the Unfunded Mandates Reform Act of 1995
H. Review under the Treasury and General Government
Appropriations Act, 1999
I. Review under Executive Order 13211
J. Review under the Treasury and General Government
Appropriations Act, 2001
K. Review under Executive Order 13609
L. Approval by the Office of the Secretary of Energy
M. Congressional Notification
I. Summary
The Department makes substantial use of financial assistance awards
(grants and cooperative agreements) to for-profit organizations to meet
its mission goals. To manage these awards, the Department added
requirements specifying changes and additions to its Uniform
Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards. On May 15, 2014, a Notice of Proposed Rulemaking
(NOPR) was published in the Federal Register (79 FR 27795) that
detailed changes to the rules for for-profit recipients.
DOE is amending the rule by adding provisions concerning: (1) The
Department's title to and interest in property purchased by financial
assistance recipients with Federal funds; (2) the Department's ability
to monitor and control the use of Federal funds, property purchased
with those funds, and any intellectual property developed with such
funds; (3) the related issues of novation (that is, the transfer of a
financial assistance agreement from one recipient entity to another)
and of change of control of a recipient (that is, a transfer of control
of the recipient entity from one individual, group of individuals or
entity, to another); (4) reporting by recipients regarding the
utilization of inventions developed with Federal funds; and (5) export
controls applicable to inventions and technology developed with Federal
funds, and support for U.S. manufacturing of inventions and technology
developed with Federal funds.
DOE received no comments from members of the public in response to
the NOPR. Nevertheless, DOE made the following technical changes to the
text of the rule to address the codification of the Uniform
Administrative Requirements, Cost Principles and Audit Requirements for
Federal Awards at 2 CFR part 200 and the relocation of the Department's
Administrative Requirements for Grants and Cooperative Agreements from
10 CFR part 600 to 2 CFR part 910 (79 FR 76024). As a result, the
regulatory text proposed as amendments to part 600 are adopted
unchanged as amendments to part 910.
(1) The text proposed as Sec. 600.304 is renumbered and adopted as
Sec. 910.372.
(2) The text proposed as Sec. 600.321 is renumbered and adopted as
Sec. 910.360.
(3) The text proposed as Sec. 600.326 is renumbered and adopted as
Sec. 910.364.
(4) The text proposed as Sec. 600.327 is renumbered and adopted as
Sec. 910.366.
(5) The text proposed as Sec. 600.354 is renumbered and adopted as
Sec. 910.368.
(6) The text proposed as Sec. 600.355 is renumbered and adopted as
Sec. 910.370.
III. Procedural Requirements
A. Review Under Executive Orders 12866 and 13563
Today's regulatory action has been determined to be a ``significant
regulatory action'' under Executive Order 12866, ``Regulatory Planning
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this rule was
reviewed by the Office of Information and Regulatory Affairs within the
Office of Management and Budget.
DOE has also reviewed this regulation pursuant to Executive Order
13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)).
Executive Order 13563 is supplemental to, and explicitly reaffirms the
principles, structures, and definitions governing, regulatory review
established in Executive Order 12866. To the extent permitted by law,
agencies are required by Executive Order 13563 to: (1) Propose or adopt
a regulation only upon a reasoned determination that its benefits
justify its costs (recognizing that some benefits and costs are
difficult to quantify); (2) tailor regulations to impose the least
burden on society, consistent with obtaining regulatory objectives,
taking into account, among other things, and to the extent practicable,
the costs of cumulative regulations; (3) select, in choosing among
alternative regulatory approaches, those approaches that maximize net
benefits (including potential economic, environmental, public health
and safety, and other advantages; distributive impacts; and equity);
(4) to the extent feasible, specify performance objectives, rather than
specifying the behavior or manner of compliance that regulated entities
must adopt; and (5) identify and assess available alternatives to
direct
[[Page 53236]]
regulation, including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or providing
information upon which choices can be made by the public.
DOE emphasizes as well that Executive Order 13563 requires agencies
to use the best available techniques to quantify anticipated present
and future benefits and costs as accurately as possible. In its
guidance, the Office of Information and Regulatory Affairs has
emphasized that such techniques may include identifying changing future
compliance costs that might result from technological innovation or
anticipated behavioral changes. DOE believes that today's Final Rule is
consistent with these principles, including the requirement that, to
the extent permitted by law, agencies adopt a regulation only upon a
reasoned determination that its benefits justify its costs and, in
choosing among alternative regulatory approaches, those approaches
maximize net benefits.
B. 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; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction.
With regard to the review required by section 3(a), 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 Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or 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; these regulations meet the relevant standards of
Executive Order 12988.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of a 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. This rule will not
have a significant impact on small entities as it applies to only for-
profit entities (excluding small non-profits, individuals or other
small entities not set up as a for-profit.) This rule also excludes
small for-profit entities receiving awards through SBIR and STTR
programs from many requirements. Historically the awards made by DOE
under Subchapter D are to businesses considered large in their industry
or field. Accordingly, DOE certifies that this rule would not have a
significant economic impact on a substantial number of small entities,
and, therefore, no regulatory flexibility analysis has been prepared.
D. Review Under the Paperwork Reduction Act
This rule would require the preparation and submission of a UCC
financing statement for awards where the Federal share exceeds $1
million. This collection of information is required for the Department
to protect the taxpayers by clarifying the rights to real property and
equipment purchased under financial assistance awards.
The collection of information for DOE financial assistance awards
has been approved by OMB under control number 1910-0400. Collection of
the UCC-1 form is covered by this control number.
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this rule falls into a class
of actions which would not individually or cumulatively have
significant impact on the human environment, as determined by DOE's
regulations (10 CFR part 1021, subpart D) implementing the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.).
Specifically, this rule is categorically excluded from NEPA review
because the amendments to the DEAR are strictly procedural (categorical
exclusion A6). Therefore, this rule does not require an environmental
impact statement or environmental assessment pursuant to NEPA.
F. 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 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.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires a Federal agency to perform a detailed assessment of costs and
benefits of any rule imposing a Federal Mandate with costs to State,
local or tribal governments, or to the private sector, of $100 million
or more. This rulemaking does not impose a Federal mandate on State,
local or tribal governments or on the private sector.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for any rule or policy that may affect
family well-being. This rule will have no impact on family well-being.
Accordingly, DOE has concluded that it is not necessary to prepare a
Family Policymaking Assessment.
I. 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
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgates 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
[[Page 53237]]
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. Today's rule is not a significant energy action. Accordingly,
DOE has not prepared a Statement of Energy Effects.
J. 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 notice under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those
guidelines.
K. Review Under Executive Order 13609
Executive Order 13609 of May 1, 2012, ``Promoting International
Regulatory Cooperation,'' requires that, to the extent permitted by law
and consistent with the principles and requirements of Executive Order
13563 and Executive Order 12866, each Federal agency shall:
(a) If required to submit a Regulatory Plan pursuant to Executive
Order 12866, include in that plan a summary of its international
regulatory cooperation activities that are reasonably anticipated to
lead to significant regulations, with an explanation of how these
activities advance the purposes of Executive Order 13563 and this
order;
(b) Ensure that significant regulations that the agency identifies
as having significant international impacts are designated as such in
the Unified Agenda of Federal Regulatory and Deregulatory Actions, on
RegInfo.gov, and on Regulations.gov;
(c) In selecting which regulations to include in its retrospective
review plan, as required by Executive Order 13563, consider:
(i) Reforms to existing significant regulations that address
unnecessary differences in regulatory requirements between the United
States and its major trading partners, consistent with section 1 of
this order, when stakeholders provide adequate information to the
agency establishing that the differences are unnecessary; and
(ii) Such reforms in other circumstances as the agency deems
appropriate; and
(d) For significant regulations that the agency identifies as
having significant international impacts, consider, to the extent
feasible, appropriate, and consistent with law, any regulatory
approaches by a foreign government that the United States has agreed to
consider under a regulatory cooperation council work plan.
DOE has reviewed this rule under the provisions of Executive Order
13609 and determined that the rule complies with all requirements set
forth in the order.
L. Approval by the Office of the Secretary of Energy
The Office of the Secretary of Energy has approved issuance of this
rule.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule prior to its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(2).
List of Subjects in 2 CFR Part 910
Accounting, Administrative practice and procedure, Grant programs,
Reporting and recordkeeping requirements.
Issued in Washington, DC, on: August 21, 2015.
Patrick M. Ferraro
Director, Office of Acquisition Management.
Joseph F. Waddell,
Director, Office of Acquisition Management, National Nuclear Security
Administration.
For the reasons stated in the preamble, the Department of Energy is
amending part 910 of chapter II, title 2 of the Code of Federal
Regulations to read as follows:
PART 910--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND
AUDIT REQUIREMENTS FOR FEDERAL AWARDS
0
1. The authority citation for part 910 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.; 2 CFR part 200.
0
2. Revise Sec. 910.360 to read as follows:
Sec. 910.360 Real property and equipment.
(a) Prior approvals for acquisition with Federal funds. Recipients
may purchase real property or equipment with an acquisition cost per
unit of $5,000 or more in whole or in part with Federal funds only with
the prior written approval of the contracting officer or in accordance
with express award terms.
(b) Title. Unless a statute specifically authorizes and the award
specifies that title to property vests unconditionally in the
recipient, title to real property or equipment vests in the recipient,
subject to all terms and conditions of the award and that the recipient
shall:
(1) Use the real property or equipment for the authorized purposes
of the project until funding for the project ceases, or until the real
property or equipment is no longer needed for the purposes of the
project, as may be determined by the contracting officer;
(2) Not encumber or permit any encumbrance on the real property or
equipment without the prior written approval of the contracting
officer;
(3) Use and dispose of the real property or equipment in accordance
with paragraphs (e), (f), and (g) of this section; and
(4) Properly record, and consent to the Department's ability to
properly record if the recipient fails to do so, UCC financing
statement(s) for all equipment purchased with Federal funds (Financial
assistance awards made under the Small Business Innovation Research/
Small Business Technology Transfer (SBIR/STTR) program are exempt from
this requirement unless otherwise specified within the grant
agreement); such a filing is required when the Federal share of the
financial assistance agreement is more than $1,000,000, and the
Contracting Officer may require it in his or her discretion when the
Federal share is less than $1,000,000. These financing statement(s)
must be approved in writing by the contracting officer prior to the
recording, and they shall provide notice that the recipient's title to
all equipment (not real property) purchased with Federal funds under
the financial assistance agreement is conditional pursuant to the terms
of this section, and that the Government retains an undivided
reversionary interest in the equipment. The UCC financing statement(s)
must be filed before the contracting officer may reimburse the
recipient for the Federal share of the equipment unless otherwise
provided for in the relevant financial assistance agreement. The
recipient shall further make any amendments to the financing statements
or additional recordings,
[[Page 53238]]
including appropriate continuation statements, as necessary or as the
contracting officer may direct.
(c) Remedies. If the recipient fails at any time to comply with any
of the conditions or requirements of paragraph (b) of this section,
then the contracting officer may:
(1) Notify the recipient of noncompliance in accordance with 2 CFR
200.338, which may lead to suspension or termination of the award;
(2) Impose special award conditions pursuant to 2 CFR 200.205 and
200.207 as amended by 2 CFR 910.372;
(3) Issue instructions to the recipient for disposition of the
property in accordance with paragraph (g) of this section;
(4) In the case of a failure to properly record UCC financing
statement(s) in accordance with paragraph (b)(4) of this section,
effect such a recording; and
(5) Apply other remedies that may be legally available.
(d) Title to and Federal interest in real property or equipment
offered as cost-share. As provided in 2 CFR 200.306(h), depending upon
the purpose of the Federal award, a recipient may offer the fair market
value of real property or equipment that is purchased with recipient's
funds or that is donated by a third party to meet a portion of any
required cost sharing or matching. If a resulting award includes such
property as a portion of the recipient's cost share, the recipient
holds conditional title to the property and the Government has an
undivided reversionary interest in the share of the property value
equal to the Federal participation in the project. The property is
treated as if it had been acquired in part with Federal funds, and is
subject to the provisions of paragraph (b) of this section and to the
provisions of 2 CFR 200.311 and 200.313.
(e) Insurance. Recipients must, at a minimum, provide the
equivalent insurance coverage for real property and equipment acquired
with Federal funds as provided to property owned by the recipient.
(f) Additional uses during and after the project period. Unless a
statute and the award terms expressly provide for the vesting of
unconditional title to real property or equipment with the recipient,
the real property or equipment acquired wholly or in part with Federal
funds is subject to the following:
(1) During the Project Period, the recipient must make real
property and equipment available for use on other projects or programs,
if such other use does not interfere with the work on the project or
program for which the real property or equipment was originally
acquired. Use of the real property or equipment on other projects is
subject to the following order of priority:
(i) Activities sponsored by DOE grants, cooperative agreements, or
other assistance awards;
(ii) Activities sponsored by other Federal agencies' grants,
cooperative agreements, or other assistance awards;
(iii) Activities under Federal procurement contracts or activities
not sponsored by any Federal agency. If so used, use charges must be
assessed to those activities. For real property or equipment, the use
charges must be at rates equivalent to those for which comparable real
property or equipment may be leased.
(2) After Federal funding for the project ceases, or if, as may be
determined by the contracting officer, the real property or equipment
is no longer needed for the purposes of the project, or if the
recipient suspends work on the project, the recipient may use the real
property or equipment for other projects, if:
(i) There are Federally sponsored projects for which the real
property or equipment may be used;
(ii) The recipient obtains written approval from the contracting
officer to do so. The contracting officer must ensure that there is a
formal change of accountability for the real property or equipment to a
currently funded Federal award; and
(iii) The recipient's use of the real property or equipment for
other projects is in the same order of priority as described in
paragraph (e)(1) of this section.
(iv) If the only use for the real property or equipment is for
projects that have no Federal sponsorship, the recipient must proceed
with disposition of the real property or equipment in accordance with
paragraph (g) of this section.
(g) Disposition. (1) If, as determined by the contracting officer,
an item of real property or equipment is no longer needed for Federally
sponsored projects, or if the recipient has suspended work on the
project, the recipient has the following options:
(i) If the property is equipment with a current per unit fair
market value of less than $5,000, it may be retained, sold, or
otherwise disposed of with no further obligation to DOE.
(ii) If the property is equipment (rather than real property) and
with the written approval of the contracting officer, the recipient may
replace it with an item that is needed currently for the project by
trading in or selling to offset the costs of the replacement equipment.
(iii) The recipient may elect to retain title, without further
obligation to the Federal Government, by compensating the Federal
Government for that percentage of the current fair market value of the
real property or equipment that is attributable to the Federal
participation in the project.
(iv) If the recipient does not elect to retain title to real
property or equipment or does not request approval to use equipment as
trade-in or offset for replacement equipment, the recipient must
request disposition instructions from the responsible agency.
(2) If a recipient requests disposition instructions, the
contracting officer must:
(i) For either real property or equipment, issue instructions to
the recipient for disposition of the property no later than 120
calendar days after the recipient's request. The contracting officer's
options for disposition are to direct the recipient to:
(A) Transfer title to the real property or equipment to the Federal
Government or to a third party designated by the contracting officer
provided that, in such cases, the recipient is entitled to compensation
for its attributable percentage of the current fair market value of the
real property or equipment, plus any reasonable shipping or interim
storage costs incurred; or
(B) Sell the real property or equipment and pay the Federal
Government for that percentage of the current fair market value of the
property that is attributable to the Federal participation in the
project (after deducting actual and reasonable selling and fix-up
expenses, if any, from the sale proceeds). If the recipient is
authorized or required to sell the real property or equipment, the
recipient must use competitive procedures that result in the highest
practicable return.
(3) If the contracting officer fails to issue disposition
instructions within 120 calendar days of the recipient's request, the
recipient must dispose of the real property or equipment through the
option described in paragraph (g)(2)(i)(B) of this section.
0
3. Add Sec. 910.364 to subpart D to read as follows:
Sec. 910.364 Reporting on utilization of subject inventions.
(a) Unless otherwise instructed, a recipient that obtains title to
an invention made under an award shall submit annual reports on the
utilization or efforts to obtain utilization of the invention for at
least 10 years from the date the invention was first disclosed to DOE
(Utilization Reports). Utilization
[[Page 53239]]
Reports shall include at least the following information:
(1) Status of development;
(2) Date of first commercial sale or use;
(3) Gross royalties received by the recipient;
(4) The location of any manufacture of products embodying the
subject invention; and
(5) Any such other data and information as DOE may reasonably
specify.
(b) To the extent data or information supplied in a Utilization
Report is considered by the recipient to be privileged and confidential
and is so marked by the recipient, DOE agrees that, to the extent
permitted by law, it shall not disclose such information to persons
outside the Government.
0
4. Add Sec. 910.366 to subpart D to read as follows:
Sec. 910.366 Export Control and U.S. Manufacturing and
Competitiveness.
(a) Export Control. Any recipient of any award for research,
development and/or demonstration must comply with all applicable U.S.
laws regarding export control.
(b) U.S. Manufacturing and Competitiveness. It is the policy of DOE
to ensure that DOE-funded research, development, and/or demonstration
projects foster domestic manufacturing. Funding opportunity
announcements (FOAs), therefore, may require that applicants submit a
``U.S. Manufacturing Plan'' in their applications. Such FOAs may
encourage U.S. Manufacturing Plans to include proposals by recipients
and any sub-recipients to manufacture DOE-funded technologies in the
United States; however, the FOAs will also state that these plans
should not include requirements regarding the source of inputs used
during the manufacturing process. Regardless of whether such plans will
be part of the merit review criteria or a program policy factor, and to
the extent legally permissible, all awards subject to this subpart,
including subawards, for research, development, and/or demonstration,
must include a provision that provides plans by the recipient and any
subrecipients to support manufacturing in the United States of
technology developed under the award. The recipient and any
subrecipients must agree to make those plans binding on any assignee or
licensee or any entity otherwise acquiring rights to any subject
invention or developed technology covered under the award. A recipient,
subrecipient, assignee, licensee, or any entity otherwise acquiring the
rights to any subject invention or developed technology may request a
waiver or modification of U.S. manufacturing plans from DOE. DOE will
determine whether to approve such a waiver in light of equitable
considerations, including, for example, whether the requester
satisfactorily shows that the planned support is not economically
feasible and whether there is a satisfactory alternative net benefit to
the U.S. economy if the requested waiver or modification is approved.
0
5. Add Sec. 910.368 to subpart D to read as follows:
Sec. 910.368 Change of control.
(a) Change of control is defined as any of the following:
(1) Any event by which any individual or entity other than the
recipient becomes the beneficial owner of more than 50% of the total
voting power of the voting stock of the recipient;
(2) The recipient merges with or into any entity other than in a
transaction in which the shares of the recipient's voting stock are
converted into a majority of the voting stock of the surviving entity;
(3) The sale, lease or transfer of all or substantially all of the
assets of the recipient to any individual or entity other than the
recipient in one or a series of related transactions;
(4) The adoption of a plan relating to the liquidation or
dissolution of the recipient; or
(5) Where the recipient is a wholly-owned subsidiary at the time of
award or novation, and the recipient's parent entity undergoes a change
of control as defined in this section.
(b) When the Federal share of the financial assistance agreement is
more than $10,000,000 or DOE requests the information in writing, the
recipient must provide the contracting officer with documentation
identifying all parties who exercise control in the recipient at the
time of award.
(c) When there is a change of control of a recipient, or the
recipient has reason to know a change of control is likely, the
recipient must notify the contracting officer within 30 days of its
knowledge of such change of control. Such notification must include, at
a minimum, copies of documents necessary to reflect the transaction
that resulted or will result in the change of control, and
identification of all entities, individuals or other parties to such
transaction. Failure to notify the contracting officer of a change of
control is grounds for suspension or termination of the award for
failure to comply with the terms and conditions of the award.
(d) The contracting officer must authorize a change of control for
the purposes of the award. Failure to receive the contracting officer's
authorization for a change of control may lead to a suspension of the
award, termination for failure to comply with the terms and conditions
of the award, or imposition of special award conditions pursuant to 2
CFR 910.372. Special award conditions may include but are not limited
to:
(1) Additional reporting requirements related to the change of
control; and
(2) Suspension of payments due to the recipient.
0
6. Add Sec. 910.370 to subpart D to read as follows:
Sec. 910.370 Novation of financial assistance agreements.
(a) Financial assistance agreements are not assignable absent
written consent from the contracting officer. At his or her sole
discretion, the contracting officer may, through novation, recognize a
third party as the successor in interest to a financial assistance
agreement if such recognition is in the Government's interest, conforms
with all applicable laws and the third party's interest in the
agreement arises out of the transfer of:
(1) All of the recipient's assets; or
(2) The entire portion of the assets necessary to perform the
project described in the agreement.
(b) When the contracting officer determines that it is not in the
Government's interest to consent to the novation of a financial
assistance agreement from the original recipient to a third party, the
original recipient remains subject to the terms of the financial
assistance agreement, and the Department may exercise all legally
available remedies under 2 CFR 200.338 through 200.342, or that may be
otherwise available, should the original recipient not perform.
(c) The contracting officer may require submission of any
documentation in support of a request for novation, including but not
limited to documents identified in 48 CFR Subpart 42.12. The
contracting officer may use the format in 48 CFR 42.1204 as guidance
for novation agreements identified in paragraph (a) of this section.
0
7. Add Sec. 910.372 to subpart D to read as follows:
Sec. 910.372 Special award conditions.
(a) In addition to the requirements of 2 CFR 200.205, the following
actions may require the use of Specific Conditions as identified in 2
CFR 200.207:
[[Page 53240]]
(1) Has not conformed to the terms and conditions of a previous
award;
(2) Has a change of control as defined in Sec. 910.368;
(3) Fails to comply with real property and equipment requirements
at Sec. 910.360; or
(4) Is not otherwise responsible.
[FR Doc. 2015-21693 Filed 9-2-15; 8:45 am]
BILLING CODE 6450-01-P