Financial Assistance Interior Regulation, 45627-45641 [2019-18650]

Download as PDF 45627 Rules and Regulations Federal Register Vol. 84, No. 169 Friday, August 30, 2019 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. DEPARTMENT OF THE INTERIOR Office of the Secretary 2 CFR Part 1402 [DOI–2018–0013; 190D0102DM, DS62400000, DLSP00000.000000, DX62401] RIN 1090–AB19 Financial Assistance Interior Regulation Office of the Secretary, Interior. Final rule. AGENCY: ACTION: This final rule establishes the Financial Assistance Interior Regulation (FAIR). The FAIR supplements the Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance), which was adopted by the Department of the Interior (DOI or Department) on December 19, 2014. This final rule supports the Department’s goal of improving its financial assistance program, consolidate the Department’s financial assistance regulations and policies derived from the OMB Uniform Guidance, and streamline the implementation of OMB’s Uniform Guidance and DOI financial assistance policy. DATES: Effective October 29, 2019. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of October 29, 2019. FOR FURTHER INFORMATION CONTACT: Mr. Kerry Neal, Director, Office of Grants Management, Department of the Interior, 1849 C Street NW, Mail Stop 4262 MIB, Washington, DC 20240; telephone (202) 208–3100; or email grants@ios.doi.gov. SUPPLEMENTARY INFORMATION: jspears on DSK3GMQ082PROD with RULES SUMMARY: I. Background On December 26, 2013, the Office of Management and Budget (OMB) VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 published its Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (referred to as the ‘‘Uniform Guidance,’’ 78 FR 78590). The OMB Uniform Guidance, 2 CFR part 200, provided a government-wide framework for Federal awards management and streamlined administrative requirements, cost principles, and audit requirements for Federal awards including grants and cooperative agreements. The Uniform Guidance required Federal agencies to promulgate regulations implementing the policies and procedures applicable to Federal awards by December 26, 2014. On December 19, 2014, the Department published a final rule to adopt the OMB Uniform Guidance in full as 2 CFR part 1402, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (79 FR 75867). Three days later, on December 22, 2014, DOI issued memoranda to supplement the following provisions of the OMB Uniform Guidance: (1) Indirect Cost Rates for Federal Financial Assistance Awards and Agreements; (2) Conflict of Interest and Mandatory Disclosures for Financial Assistance; (3) Financial Assistance Application and Merit review Processes; and (4) Financial Assistance Awards for For-Profit Entities, Foreign Public Entities, and Foreign Organizations. On February 8, 2016, the Department published a proposed rule to establish the FAIR and to consolidate all of the policy memoranda into a regulation to be codified at 2 CFR part 1402 (81 FR 6462). Two comments were received addressing, first, details of the conflicts of interest provision and, second, the application of 2 CFR part 200, subparts E (Cost Principles) and F (Audit Requirements), to tribal awards. These two comments were addressed by expanding the conflict of interest provision to be consistent with the Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR part 2635, and by clarifying the applicability of 2 CFR part 200, subparts E and F, to tribal awards in this final rulemaking, respectively. Because the RIN for the 2016 proposed rule expired and Departmental leadership wanted to strengthen the conflict of interest provisions and incorporate open science and land PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 acquisition provisions, the Department proposed the current version of its FAIR regulations as a revision to 2 CFR part 1402 for public comment on March 21, 2019. The Department received 55 public comments (84 FR 10439). The final rule reflects the totality of comments considered from the Notice of Proposed Rulemaking (NPRM) stage of the process. II. Overview of the Final Rule The FAIR regulations final rule: First, revises 2 CFR part 1402 to more accurately reflect exceptions to this part; and second, adds supplemental regulations for DOI’s financial assistance program that is codified at 2 CFR part 1402. The rule represents an administrative simplification and does not make any substantive changes to 2 CFR part 200 policies and procedures. Thus, this rulemaking does not revisit substantive issues resolved during the development and finalization of the OMB Uniform Guidance which was adopted by the Department on December 19, 2014. This rule helps ensure that financial assistance provided by the DOI is administered in full compliance with applicable law, regulation, policy and best practices to ensure the American people get the most value from the money the DOI spends on financial assistance. The sections in this final rule represent areas of the financial assistance program where questions have been raised by stakeholders, including auditors. As a result, DOI clarified specific areas. (a) Major Changes After reviewing and considering the comments received on the NPRM, we made several clarifications and changes in this final rule. The final rule: • Clarifies the definition for real property. • Simplifies and clarifies language for the conflict of interest requirements. • Clarifies mandatory disclosure limitations on unresolved items. • Simplifies language for the merit review requirements; removes the term ‘‘maximum’’ associated with discretionary awards. • Clarifies that § 1402.207(b) conditions applies to both nonprofit and for-profit recipients. • Deletes duplicative language for the lobbying disclosure and certification requirements. E:\FR\FM\30AUR1.SGM 30AUR1 45628 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations • Removes the definition of data and revises § 1402.315 to clarify the distinction between data and other related types of information. jspears on DSK3GMQ082PROD with RULES (b) Key Issues The DOI reviewed many comments from a variety of entities, but received the majority of the detailed comments focused on real property, appraisals, and scientific data. These key issues are addressed more fully in section III of this preamble, but include: • Real Property Program Impacts— Includes such things as costs, time to complete appraisals, scarcity of Yellow Book appraisers, and grandfathering of appraisals already in progress. • Uniform Appraisal Standards for Federal Land Acquisitions (UASFLA or Yellow Book) Technical Issues/ Requirements—Includes such things as the applicability of UASFLA, specific technical requirements, and assertions of inconsistent requirements for UASFLA compliance within the DOI and externally across other government agencies. • Qualifications and Training of Appraisers—Includes such things as uncertainty regarding qualifications of appraisers for conducting UASFLA appraisals, qualifications for review appraisers, appraisal review conducted by non-appraisers, and terminology used when referring to the appraisal credentials issued by States. • Promoting Open Science—Includes the expanded definition of data and the requirement to make data relied upon in research available to the public and the format to provide the data. Incorporation by Reference: The purpose of the Uniform Appraisal Standards for Federal Land Acquisitions (Yellow Book) is to promote fairness, uniformity, and efficiency in the appraisal of real property in Federal acquisitions. The same goals of uniformity, efficiency, and fair treatment of those affected by public projects underlie the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 which applies to Federal acquisitions as well as many State and local government acquisitions involving Federal funds. The Yellow Book is available in hard copy or interactive electronic format from The Appraisal Foundation at https://www.appraisalfoundation.org/ imis/TAF/Yellow_Book.aspx or from the U.S. Department of Justice at https:// www.justice.gov/file/408306/download. (c) Section by Section Analysis This portion of the preamble summarizes the final rule and highlights VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 certain aspects of the rule that may benefit from additional explanation. Subpart A of the final rule sets forth definitions for terms used in this part. Terms defined in this rulemaking are ‘‘employment,’’ ‘‘financial assistance officer,’’ ‘‘foreign entity,’’ ‘‘non-Federal entity,’’ and ‘‘real property.’’ As explained in the proposed rule, nonFederal entity is expanded to include for-profit organizations. Several of these terms help clarify regulatory changes designed to avoid conflicts of interest which might place a non-Federal entity, its employees, and/or its subrecipients in a position of conflict, real or apparent. The final rule adopts the proposed term ‘‘real property’’ to address DOI’s specific focus on interests in land. The ‘‘data’’ definition was removed based on comments received stating that the definition was beyond the scope of typical definitions in the industry. Subpart B sets forth general provisions including: The purpose of the part, application, exceptions, policies and procedures that apply to non-Federal entities, conflict of interest policies, and mandatory disclosure requirements. DOI adopted as proposed § 1402.100, which includes establishment of financial assistance regulations designed to ensure that financial assistance is administered in full compliance with applicable law, regulation, policy and best practices; and to help ensure that the American people get the most value from the money that DOI spends on financial assistance. The adopted § 1402.101 provides that the regulation is applicable to all DOI grant-making activities and to any non-Federal entity that applies for, receives, operates, or expends funds from a DOI financial assistance award after the effective date of this final rule, unless otherwise authorized by Federal statute. Section 1402.103 adopted as proposed explains that non-Federal entities must also follow bureau or office policies and procedures as communicated in notices of funding opportunities and award terms and conditions. This section also reflects the order of precedence, where policies or procedures may conflict with existing regulations at 2 CFR part 200; or this part. In such cases, then the regulations at 2 CFR part 200 or this part, when final, will supersede, unless otherwise authorized by Federal statute. Section 1402.112 sets forth requirements related to conflicts of interest that apply to recipients of financial assistance awards. The final rule, adopted as proposed, applies to all non-Federal entities and requires the full text of language proposed in PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 paragraphs (a) through (e) in all notice of funding opportunities and financial assistance awards. The proposed rule was amended in order to make clear to non-Federal entities that they must appropriately address prohibited conflicts of interest preventing them from providing impartial, technically sound, and objective performance under or with respect to a Federal financial assistance agreement. Paragraph (b) Requirements was removed to avoid any confusion that the rule was not in compliance with statutory and regulatory law. Paragraphs (a) through (e) set forth directions on applicability, appropriate action that must be taken to avoid a conflict of interest, required notification, and enforcement. Section 1402.113 provides as proposed that, in addition to the disclosures required under 2 CFR 200.112 and 200.113, non-Federal entities and applicants must disclose in writing any potential or actual conflict of interest; and must also disclose any outstanding unresolved matters with the Government Accountability Office or the Office of Inspector General of any Federal agency when submitting a proposal and throughout the life of the award. ‘‘Unresolved’’ matters are now more clearly defined. Under subpart C, the rule addresses: Merit review requirements for competitive awards, requirements for domestic for-profit entities, specific financial assistance award terms and conditions that apply to domestic forprofit entities, and lobbying disclosure and certification requirements. Section 1402.204 sets forth merit review requirements for competitive grants and cooperative agreements unless otherwise prohibited by Federal statute. After reviewing the comments, DOI removed the requirements for bureaus and offices to create review systems that consider statutory or regulatory provisions, business evaluation, risk assessment, and other applicable government-wide pre-award considerations for discretionary programs that are noncompetitive. While DOI believes review systems are important, it did not believe the specific requirements needed to be in the regulation. This section also adopts as proposed, required pre-award considerations for both discretionary competitive and noncompetitive awards to take into account the alignment of the award’s purpose, goals, and measurement with the current DOI Government Performance and Results Act Strategic Plan. Section 1402.204 also adopts as amended an expectation of competition in awarding discretionary funds, unless E:\FR\FM\30AUR1.SGM 30AUR1 jspears on DSK3GMQ082PROD with RULES Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations otherwise directed by Congress. After the review of comments, DOI did remove the word ‘‘maximum’’ that described the competition requirement. The final rule also adopts that when grants and cooperative agreements are awarded competitively, the process will be fair and impartial, that all applicants will be evaluated only on the criteria stated in the announcement, and that no applicant will receive an unfair competitive advantage. This section of the rule also sets forth direction on: The composition of an evaluation and selection plan, completeness of applications and proposals, timeliness, threshold screening, merit review evaluation screening, and risk assessments. Sections 1402.206 and 1402.207 are designed to be read together as proposed. Section 1402.206 provides that § 1402.207(a) contains standard award terms and conditions that always apply to for-profit entities and that terms in § 1402.207(b) contain terms for recipients including non-profits and forprofits to apply to all subawards and contracts over the simplified acquisition threshold. The section further lists additional administrative guidelines in existing regulations and in proposed § 1402.414 that may be applied to domestic for-profit entities. Provision is made for particular program offices and bureaus to develop specific administrative guidelines for domestic for-profits. Finally, § 1402.206 adopts that bureau and office award terms and conditions must be managed in accordance with the requirements in the existing 2 CFR 200.210. Section 1402.207 lists specific conditions that always apply to domestic for-profit entities and subawards. In addition to all other applicable terms and conditions, specific financial assistance award terms and conditions adopted in § 1402.207(d) apply to foreign entities. DOI also clarified that the provisions in § 1402.207(b) applies to both non-profit and domestic for-profit entities. Section 1402.208 was removed after DOI’s review of the comments, as DOI agreed it was redundant with § 1402.112(d) restrictions on lobbying. Subpart D includes regulations that set forth post Federal award requirements. Section 1402.315 amends requirements for availability of data that implement Secretary’s Order 3369, ‘‘Promoting Open Science,’’ dated October 18, 2018. The requirements in this section rely on existing regulatory provisions found at 2 CFR 200.315(d) to achieve the goals set forth in section 4b(3) of the Secretary’s Order to provide VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 the American people with enough information to thoughtfully and substantively evaluate the data, methodology, and analysis used by the Department. To accomplish these goals, the section provides that DOI bureaus and offices shall specifically require under the terms of any award, the ability to publicly release associated data, methodology, factual inputs, models, analyses, technical information, reports, conclusions, or other scientific assessments in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual, subject to applicable laws. This provision applies to all grants, cooperative agreements, or other similar agreements between any Bureau, Office, or other organization of the Department and any third party; and would not be limited to rulemaking. This section recognizes the Department’s responsibility to ensure that the benefits derived from Federal financial assistance are generally available to the public, subject to applicable law. DOI clarified in the final rule that methodologies, factual inputs, models, analyses, technical information, reports, conclusions, or other scientific assessments in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual resulting from a financial assistance agreement should be available to DOI for sufficient independent verification. It further clarified the Federal Government rights to such items. It also adopts, as proposed, the requirement that Bureaus and offices must include these requirements in all notice of funding opportunities. Section 1402.329 adopts the requirements for land acquired under an award. The regulation provides that prior to land purchases, bureaus and offices must ensure compliance with the prior written approval requirements for land acquisition in the existing 2 CFR 200.439. Whenever a recipient is seeking DOI approval to use award funds to purchase an interest in real property, OMB-approved governmentwide data elements must be submitted to the responsible bureau or office. For this provision, the Financial Assistance Officer is responsible for ensuring compliance. Furthermore, all aspects of the purchase must be in compliance with applicable laws and regulations relating to purchases of land or interests in land. This section also requires that unless a waiver valuation applies in accordance with 49 CFR 24.102(c), land or interests in land that will be acquired under the award must be: (a) Appraised in accordance with the Uniform PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 45629 Appraisal Standards for Federal Land Acquisitions (UASFLA or the ‘‘Yellow Book’’), which is incorporated by reference; (b) appraised by a real property appraiser licensed or certified by the State or States in which the property is located; and (c) that the appraisal report shall be reviewed by a qualified review appraiser that meets qualifications established by the DOI Appraisal and Valuation Services Office (AVSO). Requirements are also set forth in this section for foreign land acquisition. In § 1402.329, DOI sets forth direction that recipients must submit reports on the status of the real property for all financial assistance actions where real property, as defined in this final rule, is acquired under the Federal award as required by 2 CFR 200.329. If the interest in real property will be held for less than 15 years, reports must be submitted annually; otherwise the recipient must submit the first report within one year of the period of performance end date of the award and then, at a minimum every five years thereafter. The rule also sets forth who should receive the reports, the required format, the content, and timing for such reports. Section 1402.414 establishes DOI policy, procedures, and general decision-making criteria for deviations from negotiated indirect cost rates applicable to all Federal financial assistance programs awarded and administered within DOI. The regulatory text sets forth procedures and criteria for using an indirect cost rate other than the non-Federal entity’s negotiated rate. The goal of this section is to provide consistent direction within the Department on negotiated indirect cost rate deviations to ensure compliance with the Uniform Guidance. Existing provisions of 2 CFR 200.414(c) require Federal agencies to accept federally negotiated indirect cost rates. Federal agencies may use a rate different from the negotiated rate for a class of awards or a single Federal award only when required by Federal statute or regulation, or when approved by a Federal awarding agency head or delegatee based upon documented justification described within 2 CFR 200.414(c)(3). For all deviations to the Federal negotiated indirect cost rate, including statutory, regulatory, programmatic, and voluntary, the rule provides that the basis of direct costs against which the indirect cost rate is applied must be: The same base identified in the recipient’s negotiated indirect cost rate agreement, if the recipient has a federally negotiated indirect cost rate agreement; or, the modified total direct E:\FR\FM\30AUR1.SGM 30AUR1 45630 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations cost (MTDC) base, in cases where the recipient does not have a federally negotiated indirect cost rate agreement or, with prior approval of the awarding bureau or office, when the recipient’s federally negotiated indirect cost rate agreement base is only a subset of the MTDC (such as salaries and wages) and the use of the MTDC still results in an overall reduction in the total indirect cost recovered. Section 1402.414(d), adopted as proposed, provides that in cases where the recipient does not have a federally negotiated indirect cost rate agreement, the Department will not use a modified rate based upon total direct cost or other base not identified in the federally negotiated indirect cost rate agreement or defined within 2 CFR 200.68. Section 1402.414(d) goes on to provide direction on indirect cost rate deviation required by statute or regulation, indirect cost rate reductions used as cost-share, programmatic indirect cost rate deviation approval process, voluntary indirect cost rate reduction, and unrecovered indirect costs. 12866. The impact of this rule has been analyzed, and it does not have an annual effect on the economy of $100 million or more, adversely affect the economy in a material way, or create a serious inconsistency or otherwise interfere with another agency’s actions. Accordingly, the impact of this rule does not rise to the level of significance under the E.O. The DOI has however made changes to the open science provisions of the proposed rule. DOI has made no changes to the land acquisition provisions of the proposed rule in response to these comments. The Uniform Act and its regulations at 49 CFR part 24 apply to Federal acquisitions as well as many State and local government acquisitions involving Federal funds (UASFLA 0.1). As such, the UASFLA standards are no different than the USDAP standards, they are merely tailored to meet the specific needs of the Government. Accordingly, the land provisions are not a significant change. III. Public Comments on the Proposed Rule and Responses to Comments Comment: Three commenters raised concern over the rule being contrary to established principles of federalism. Specifically, they commented that the provisions related to the Yellow-book requirement and data availability impeded full compliance with State privacy laws related to land ownership and requiring the disclosure of what the State determines is protected and sensitive information. Response: The Department does not agree that the rule is contrary to E.O. 13132 or the principles of federalism. Non-Federal entities participate in Federal assistance programs voluntarily; and when seeking Federal funds, they are required to meet Federal requirements attached to the receipt and use of such funds. Section 1.15 of the Yellow Book specifically addresses confidentiality and the appraiser’s responsibility to follow the USPAP Ethics Rule as it relates to confidentiality and the appraiser/client relationship. State privacy requirements remain intact. An appraisal completed to either standard has the same confidentiality requirements. Furthermore, the requirement in this rule to use the Yellow Book standard for all appraisals is already the standard practice for Federal assistance programs, and is a requirement for all direct Federal land purchases. The DOI made no changes to the proposed rule in response to this comment. (a) Overview The Department sought public comment on the proposed rule, receiving 55 comments from over 200 individuals, non-profits, State and local governments, and Federal entities. All public comments received on the NPRM are available in a combined docket at docket number: DOI–2018–0013. The Department decided to proceed to the final-rule stage after consideration of all the comments. The Department’s responses to comments are detailed below. (b) Responses to Public Comments on the Proposed Rule (1) Comments Related to Executive Orders jspears on DSK3GMQ082PROD with RULES (i) Executive Order 12866—Regulatory Planning and Review Comment: Four commenters expressed the opinion that the rule has significant changes for States and other grantee organizations resulting in significant new process requirements and burdens, and increased costs. Two commenters specifically commented that incorporating open science and land acquisition provisions into this regulation may violate Executive Order 12866.’’ Response: The Department received a review from OMB, and the rule was determined non-significant under E.O. VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 (ii) Executive Order 13132—Federalism PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 (iii) Executive Order 13563—Improving Regulation and Regulatory Review Comment: Three commenters raised concern over the rule not promoting predictability, reducing uncertainty, or providing the least burdensome tools for achieving regulatory objectives with regard to: (1) Appraisal standards, (2) review appraiser standards, and (3) real property reporting requirements. Response: The rule clarifies the standard for real property appraisals, appraiser standards, and reporting requirements under 2 CFR 1402.329. Specifically, there are two existing regulations (49 CFR 24.101(d) and 24.103(a)) that relate to appraisals for real property, including real property under federally assisted programs. The DOI made no changes to the proposed rule in response to these comments. (2) Comments Related to Data (i) Definition of Data Comment: Two commenters raised concern over the definition of data in the rule. Specifically, the commenters felt that the definition in the rule is too broad, outside of the industry-standard definition of the term, and it includes data that takes years to develop and has a significant value to the non-Federal award recipient. The rule reserves the right for the DOI to determine whether to make such data that is produced with Federal funding publically available, which may cause economic injury and competitive harm to non-Federal recipients. Response: The Department made changes in response to these comments, to eliminate the definition of data from this regulation, and then to make minor conforming revisions to the text of § 1402.315 to clarify the Department’s requirements related to methodology, factual inputs, models, analyses, technical information, reports, conclusions, and other scientific assessments, which are not included in the industry-standard definition of data. The change resolves the issue that the definition of ‘‘data’’ in the proposed rule was beyond the scope of the industrystandard definition of the term. The DOI did not make substantive changes, but rather clarifying changes regarding the Department’s rights in relation to methodology, factual inputs, models, analyses, technical information, reports, conclusions, and other scientific assessments. The Department has a responsibility to ensure that the benefits derived from Federal financial assistance awards are available to the public. In order to ensure transparency and the greatest possible use of the fruits of Federal appropriations, the rule E:\FR\FM\30AUR1.SGM 30AUR1 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations jspears on DSK3GMQ082PROD with RULES reserves the right for the DOI to decide whether these types of outputs resulting from a Federal award shall be publicly released. The Department will make determinations regarding public release of data on a case-by-case basis, and may consider input from interested parties. The Department will not take any action in violation of statute, including, for example, public release of information that is protected under an exception to the Freedom of Information Act. However, the rule ensures that the DOI reserves the right to make that determination for all data, methodology, factual inputs, models, analyses, technical information, reports, conclusions, valuation products, and other scientific assessments produced under a federally-funded award. (ii) Protected Use of Data Comment: Thirty-five commenters requested clarification on the specific requirements for protection and use of data under § 1402.315, Availability of Data. These commenters expressed concern that data collection might be burdensome as the FAIR does not describe what format the data will need to be available in, whether grantees will have to provide the raw data, and whether recipients will have to translate data for all requesting parties. Also, commenters raised questions about whether the grantees are legally allowed to share data with non-intended users; for how long after the award has closed that the recipient needs to make the data available for use; and whether the requirement applies to alreadypublished data or raw un-scrubbed data. Lastly, one commenter wanted to ensure that this rule ‘‘will not compromise threatened, endangered, or other species of concern by making certain information about geographic locations public’’. Response: The DOI believes that these comments raise issues that are too specific and detailed to address in a rule. Issues related to formatting, procedures, and specific issues like endangered species protections are best addressed in each Notice of Funding Opportunity for each Federal financial assistance program. As such, individual financial assistance agreements will specify the format required for the data, and the government will make every effort to be as descriptive as practical in the initial Notice of Financial Assistance Opportunities. The DOI made changes to the definition of data in the final rule. DOI also indicated that it will make determinations regarding public release of data on a case-by-case basis, and may consider input from interested parties. The Department will VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 not take any action in violation of a statute. (3) Comments Related to Real Property (i) Cost of Uniform Appraisal Standards for Federal Land Acquisition (UASFLA) Comment: Multiple commenters expressed concern with the rule’s requirement that appraisals for land purchased under Federal assistance awards must be conducted using the UASFLA (Yellow Book) standard due to concern that appraisals conducted under this standard are more costly. One commenter indicated that they allocate an average of $7,500 for the appraisal, and various other commenters stated that they expected costs of appraisals to increase thirty percent to fifty percent based on conversations with appraisers in their area. Response: Title 49 CFR 24.103(a) allows agencies to require Yellow Book compliance, which is the appropriate appraisal standard for acquisition of property interests by the Federal Government. The DOI contracts hundreds of land appraisals each year in many different States that are completed under both The Uniform Standards of Professional Appraisal Practice (USPAP) and UASFLA standards. In the DOI’s experience, there is no significant difference in the cost of a USPAP appraisal versus a UASFLA appraisal. Cost variability is most often a result of the specifics of the assignment rather than the applicable appraisal standard. The $7,500 appraisal figure in the comments is consistent with the pricing for DOI appraisals. Fees typically go up as the complexity increases and the period of performance for the appraisal shortens. Additionally, there is no discernable difference in the time taken for the appraisal, whether it is completed under USPAP or UASFLA standards. The average time of completion from the notice to proceed with the appraisal to the delivery of the appraisal to the review appraiser is around sixty-five days. The average time for appraisal review, including obtaining revisions from the appraiser if necessary, is around forty days. These averages are regardless of the appraisal standard applicable to the assignment is USPAP or UASFLA. The appraisal review days include the days that the appraiser is making necessary revisions to the appraisal report. This length varies depending on the quality of the appraisal report and the appraiser’s schedule for revisions. In addition, the rule currently allows for waivers in accordance with 49 CFR 24.102(c) in instances where the total value of the PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 45631 land is so low that the cost of the appraisal is not justified. The DOI made no changes to the proposed rule in response to this comment. (ii) Scarcity of UASFLA Appraisers Comment: Multiple commenters expressed concern about the perceived scarcity of UASFLA qualified appraisers. Response: Appraisers are licensed or certified by the States to perform appraisals, and the States establish limits to the levels of licensure in accordance with Title XI of the Financial Institution Reform and Recovery and Enforcement Act (FIRREA) of 1989, P.L. 101–73. Most State licensed or certified appraisers are able to complete UASFLA appraisals. There are no separate or additional licensure requirements for completing UASFLA appraisals; the issue is not lack of qualifications as stated in the comments, and scarcity can be addressed through outreach to the appraisal community to bring awareness of the opportunity for assignments. The DOI made no changes to the proposed rule in response to this comment. (iii) Grandfathering Comment: A commenter raised a concern about the ability to grandfather appraisals that are already in progress or that have been completed but grants not awarded. Response: Appraisals that have already been initiated as of the date the final rule is published will be accepted as long as they meet the standards required by the grant program at the time the appraisal was initiated. However, all appraisals initiated after the date of the final rule will need to conform to UASFLA. The DOI made no changes to the proposed rule in response to this comment. (iv) Perceived Burden of UASFLA Requirements Comment: Several commenters raised general concerns about the requirement that all appraisals for all land purchased under Federal assistance awards conform to the UASFLA appraisal standard. Response: All UASFLA appraisals must also conform to USPAP. USPAP is a broad general standard that applies to all types of appraisals conducted by State licensed or certified appraisers. This standard includes real property appraisal, mass appraisal, personal property appraisal, and business appraisal. The UASFLA/Yellow Book is a supplemental standard to USPAP, meaning that it builds on the foundation established by USPAP and is more E:\FR\FM\30AUR1.SGM 30AUR1 jspears on DSK3GMQ082PROD with RULES 45632 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations specific to direct acquisitions and federally assisted acquisitions under the Uniform Act. Much of the UASFLA was written to conform to the Uniform Act appraisal requirements found in 49 CFR 24.103. The Uniform Act and its regulations at 49 CFR part 24 apply to Federal acquisitions as well as many State and local government acquisitions involving Federal funds (UASFLA 0.1). As such, the UASFLA standards are no different than the USDAP standards, they are merely tailored to meet the specific needs of the Government. Comment: Other comments that were received requested that the DOI’s Federal assistance programs, such as the Wildlife and Sport Fish Restoration Program (WSFR), have consistent appraisal requirements. Response: The Department agrees, and is specifying UASFLA as the applicable standard bringing all federally-assisted land acquisition programs under one consistent appraisal standard. For example, for the WSFR program, Yellow Book appraisals are required by some regions, but other regions, for that same program, apply USPAP only. Requiring UASFLA/ Yellow Book compliance Departmentwide will ensure these programs are consistent with other programs within the Department, including the National Park Service LWCF State Assistance Program, the American Battlefield Protection Program, and the FWS Cooperative Endangered Species Conservation Fund Grant Program. Comment: Some comments mentioned the USDA Forest Legacy grant program which also requires UASFLA appraisals. Response: The final rule seeks to create consistent requirements across the Department’s grant programs by requiring appraisals be conducted in compliance with the UASFLA, which is the predominant standard for land or real property interest acquisition appraisals within the Department. Some external agencies may have different requirements for appraisal standards due to different missions and objectives; however, the UASFLA is generally applicable to land management agencies as well as other agencies that acquire or fund acquisition of land or other real property interests. Within the Department, the UASFLA is already the most common standard for land or real property interest acquisition and helps ensure compliance with UASFLA 0.1, parallel goals of ‘‘uniformity, efficiency, and fair treatment of those affected by public projects . . .’’ Comment: One other area of comment was related to the inability of appraisers conducting UASFLA appraisals to VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 consider ‘‘conservation values’’ or use comparable sales involving government agencies or nonprofit organizations. Response: For any appraisal that seeks to determine fair market value, the highest and best use of the property being appraised is what drives the value. Non-economic uses such as open space or watershed protection are not typically recognized as the highest and best use because there is no economic benefit returned to the property. The major appraisal organizations, as well as the Interagency Land Acquisition Conference (authors of the UASFLA), have concluded that where fair market value is the value sought, the value must be based on an economic highest and best use and that a non-economic highest and best use is not a proper basis for the opinion of market value. Comparable sales involving government entities or nonprofit organizations also must be considered with extra care and analysis because they can reflect non-market motivation or other influences such as tax benefits to the seller. The UASFLA does not prohibit the use of these sales, but these sales do require an additional level of scrutiny to ensure that they are arm’s length transactions and accurately reflect open market situations. (v) Qualifications and Training Comment: Thirty-two comments addressed the inclusion of qualifications for appraisers in the proposed rule. Response: The qualifications established by AVSO are included in a draft of Part 602, Chapter 1 of the Departmental Manual that is currently being updated by the Department. For fee appraisers preparing valuation products (including appraisals and appraisal reviews) for financial assistance programs within the Department, appraisers must hold an appraisal license in the State where the property appraised is located, commensurate with the type of property being appraised. This requirement allows an appraiser to conduct appraisals or appraisal reviews for financial assistance programs as long as they act within the property type and value limits of their level of license. Title XI of the FIRREA established these limits. The qualifications established by AVSO are consistent with this law. The UASFLA does not prohibit the use of comparable sales involving government entities or nonprofit organizations, but these sales do require an additional level of scrutiny to ensure that they are arm’s length transactions and accurately reflect open market situations because they can reflect non-market motivation PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 or other influences such as tax benefits to the seller. Comment: Other comments were received that discussed appraisers being ‘‘Yellow Book or UASFLA Certified’’ or a specific certification required for appraisers or review appraisers. Response: In either case, there are no certifications specific to either UASFLA appraisals or appraisal review. Regarding UASFLA appraisals, any appraiser can perform UASFLA appraisals as long as they are competent to perform the assignment and the property type and value are within the limits of their license as established by FIRREA. Various appraisal organizations offer training in conducting UASFLA appraisals, and these courses are available online and in traditional classroom settings to facilitate appraisers becoming familiar with the standard. For appraisal review qualifications, there are specific review designations for appraisers offered by at least two professional appraisal organizations— the Appraisal Institute (AI–GRS) and the American Society of Farm Managers and Rural Appraisers (RPRA) that conform to the Departmental Manual, Part 602, Chapter 1, requirements requiring education and experience in appraisal review, a comprehensive exam, and a demonstration appraisal review report. Comment: Two comments were received that indicated that an appraisal review designation should be required to be considered ‘‘qualified’’ for appraisals related to grant programs. Response: Since this is not required for appraisals used for direct acquisition by the United States, it is not realistic to require a higher level of qualification for appraisers conducting appraisals and appraisal reviews for financial assistance programs. (vi) Requirements for Recipient Reporting on Real Property Purchases Comment: Forty-two commenters raised questions regarding the public land reporting requirements in § 1402.329(d). Commenters stated that the reporting requirement is redundant and an unnecessary burden to the grantee, and that the SF–429A requires information that is above and beyond the intent of 2 CFR 200.329. Other commenters focused on current program reporting requirements, and how the requirements in this rule would impact those current requirements in terms of reporting deadlines, data, and forms. Response: The intent of the rule is to standardize the process for land requirements and data collected across all DOI Federal assistance programs. The requirements in this rule will be E:\FR\FM\30AUR1.SGM 30AUR1 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations adopted by all DOI programs, and will replace, not add to, existing requirements. Program specific requirements by commenters will be replaced with one standardized process. This reporting requirement in this rule does not expand the requirements in 2 CFR 200.329, but merely clarifies DOI’s standards for the format and deadlines of the reporting that is already required by that section. This final rule requires using a Standard Form that has already been established as a Government standard, in order to conform with an existing format and to avoid the creation of a duplicative form. The DOI made no changes to the proposed rule in response to this comment. (4) Comments Related to Definitions (i) Employment Comment: One commenter requested that DOI revise the definition of employment in the rule, and suggested that the definition expands upon traditional definitions of the term under the Fair Labor Standards Act (FLSA) by including relationships such as ‘‘contractor’’ and ‘‘partner.’’ Response: This definition in the rule is intended to make clear that the types of personal services as described therein are also included in the definition of employment and should be reported as such in the grant application or progress report. The DOI made no changes to the proposed rule in response to this comment. (ii) Non-Federal Entity Comment: The definition of nonFederal entity in § 1402.6 is an identical definition provided in 2 CFR 200.69. We recommend this to be removed because there is no additional value or clarification provided here. Response: The definition in § 1402.6 slightly revises the definition in 2 CFR 200.69 to also include for-profit entities in the definition of non-Federal entity. As explained in the proposed rule, we believe this is needed because 2 CFR part 200 leaves the Department discretion for for-profit entities. Accordingly, DOI made no changes to the proposed rule in response to this comment. jspears on DSK3GMQ082PROD with RULES (iii) Real Property Comment: The proposed definition in § 1402.7 needs further clarity on land and interests in land. Response: The DOI revised the definition of real property in the proposed rule in response to this comment. DOI clarified that real property interests were included in the definition of real property. VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 (5) Comments on Other Sections (i) Section 1402.100 Purpose Comment: Three commenters raised concern over the stated purpose of the proposed rule. The background information states that ‘‘the proposed rule represents an administrative simplification and is not intended to make any substantive changes to 2 CFR part 200 policies and procedures.’’ However, the proposed rule implements appraisal standards (§ 1402.329) and specific reporting forms (SF–429) is well beyond what is required by 2 CFR part 200. Response: Title 2 CFR 200.329 states that in those instances where the Federal interest in real property attached is for a period of 15 years or more, the Federal awarding agency at its option, may require the non-Federal entity to report at various multi-year frequencies (e.g., every two years or every three years, not to exceed a fiveyear reporting period; or a Federal awarding agency or pass-through entity may require annual reporting for the first three years of a Federal award and thereafter require reporting every five years). As explained in the proposed rule, we believe this section does not expand reporting requirements, but clarifies the specific approach that will be required for awards made by the DOI for interests held longer than 15 years. The DOI made no changes to the proposed rule in response to this comment. (ii) Effective Date Comment: One commenter requested a clarification on the effective date of the final rule and whether it would apply retroactively to previously issued Federal awards. Response: The FAIR applies to all DOI new awards or award revisions made after the effective date of the final rule. The DOI made no changes to the proposed rule in response to this comment. (iii) Applicability of Other Regulations and Policies Comment: Sixteen commenters submitted questions and comments regarding the FAIR’s effect on terms and conditions for awards issued prior to the effective date of the rule and 2 CFR part 200, and whether the terms and conditions in DOI Federal assistance awards would be subject to the notice and comment process. Response: The FAIR supplements the terms and conditions in 2 CFR part 200 in areas of particular interest for the DOI and gives more detailed instructions on how to implement 2 CFR part 200 with PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 45633 regard to each section in this final rule. Program offices may impose additional programmatic and grants administration requirements via agency policy statements, Notice of Funding Opportunity announcements, and terms and conditions of award. The DOI will not apply this rule retroactively. It will only be applied to new awards or award revisions made after the effective date of the final rule. The DOI made no changes to the proposed rule in response to this comment. (iv) Conflicts of Interest (§ 1402.112) Comment: Seven commenters expressed the desire for the regulatory language to be removed or revised to remove confusion and redundancy. Commenters stated that the requirement to disclose potential conflicts of interest, and any outstanding unresolved matters, has the potential for varying interpretations because subjectivity is involved. Commenters also distinguished between State and Federal requirements. Response: Section 1402.112 is critical to ensure that recipients of Federal assistance awards disclose any conflicts of interest that might impede their ability to serve the public purpose of the award. While DOI recognizes that conflict of interest provisions are inherently subjective, the language in this final rule supplements the language in 2 CFR part 200, and provides some additional clarifications. Section 1402.112 removed paragraph (b) to be consistent with 2 CFR 200.318(c). This amendment also clarifies that States and local governments are permitted to follow their own conflict of interest policies. Further, § 1402.112, as proposed, provides Review Procedures, which are not included in 2 CFR part 200. As explained in the preamble of the proposed rule, the DOI believes that these sections are needed to ensure full transparency into any conflicts of interest that are held by potential award recipients. (v) Mandatory Disclosure (§ 1402.113) Comment: Three commenters expressed the desire for clarity on standards that would apply in making a determination and disclosure of potential conflicts. There was concern that this section will impose a disproportionate reporting burden on States, as States have multiple grantors and deal with multiple Offices of Inspector Generals. Also, the proposed rule does not state at what point an issue is determined to be ‘‘unresolved.’’ Is it unresolved when it is questioned, or only if it is outstanding after the E:\FR\FM\30AUR1.SGM 30AUR1 45634 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations corrective action plan, or sometime in between? Response: The DOI revised the language in this section to limit those ‘‘unresolved’’ items that are to be reported as those items that do not have an approved (by the awarding agency) corrective action plan in place and remain open. jspears on DSK3GMQ082PROD with RULES (vi) Merit Review (§ 1402.204) Comment: Four commenters raised questions about the merit review section, including concern over how competition requirements are defined. Commenters were concerned over using the word ‘‘maximum’’ to describe the type of competition. Commenters expressed the view that the use of a subjective word like maximum lends itself to significant differences in standards based on region/State, or even individuals, implementing the funding opportunity and could result in unequal opportunities nationwide. There was also a comment raised that the programmatic investment guidance outlined by congressional mandates may not be consistent with the current DOI Government Performance and Results Act Strategic Plan as required in § 1402.204. Response: The Department made changes to the proposed rule in response to this comment by removing the following language: ‘‘It is also important for DOI bureaus and offices to create review systems for noncompetitively awarded discretionary . . .’’ and the word ‘‘maximum.’’ that originally appeared in the proposed rule at § 1402.204(a). DOI also revised § 1402.204 to add ‘‘unless otherwise required by statute’’ with respect to the current DOI Government Performance and Results Act Strategic Plan to clarify DOI does not intent to violate congressional mandates. (vii) Specific Award Conditions (§ 1402.207(b)) Comment: One commenter requested clarification on paragraph (b) and the inclusion of all recipients. The commenter noted that most of this section is explicit in stating it applies for-profit entities, paragraphs (a) and (c). Paragraph (b) does not state for-profit entities explicitly, so does this mean this paragraph is for all recipients, regardless of whether it is for-profit or not? Response: Paragraph (b) applies to both nonprofit and for-profit recipients. The DOI believed it was clear that both the for-profit and non-profit entities were covered by this provision, but to be explicit, introductory text was added as follows: ‘‘The following financial VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 assistance award terms and conditions always apply to non-profit and domestic for-profit entities:’’ (viii) Lobbying Disclosure and Certification Comment: One commenter suggested that the referenced section (§ 1402.208) is duplicate language already proposed in § 1402.112(d) and suggested removal. Response: The DOI made changes to the proposed rule in response to this comment by deleting § 1402.208. (ix) Indirect Cost Rates Comment: Four commenters raised concern over the approval process and documentation for indirect cost rates required in § 1402.414. One commenter noted that the requirements stated in the rule have been in effect since 2014 and have been working well. Response: The approval of programmatic deviations to negotiated indirect cost rates is handled on a caseby-case review and is at the discretion of each bureau’s grants program guidelines. The procedures outlined in this rule are consistent with 2 CFR part 200, and have been in place within DOI via policy guidance since 2014. Under this rule, a voluntary rate reduction should be confirmed in writing with the Financial Assistance Officer identified in the Notice of Funding Announcement. The voluntary rate reductions should be noted in the preaward proposal documents submitted for review at the time of the application. Federal agencies may use a rate different from the negotiated rate for a class of awards or a single Federal award only when required by Federal statute or regulation, or when approved by a Federal awarding agency head or delegate based upon documented justification described within 2 CFR 200.414(c)(3). Indirect cost rate agreements are negotiated within 6 months from the time a grantee submits a complete and acceptable proposal package. Title 2 CFR part 200 allows grantees to develop and submit their indirect cost rate proposals 6 months after the end of their fiscal year. The DOI made no changes to the proposed rule in response to this comment. IV. Conclusion DOI reviewed and considered the comments received, and determined to adopt this final rule with the changes described and minor editorial changes. V. Required Determinations 1. Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order (E.O.) 12866 provides that the OMB’s Office of Information PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 and Regulatory Affairs will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866, calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory objectives. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public, where these approaches are relevant, feasible, and consistent with regulatory objectives. 2. Regulatory Flexibility Act This final rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The Department of the Interior generally does not award grants to small businesses. The vast majority of Interior grants are awarded to States, local governments, and notfor-profit organizations. 3. Small Business Regulatory Enforcement Fairness Act The final rule is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule: (a) Does not have an annual effect on the economy of $100 million or more. The Department of the Interior generally does not award grants to small businesses. (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This rule establishes regulations for DOI financial assistance. DOI financial assistance is typically offered to States, local governments and not-for-profit institutions. It does not affect business relationships, employment, investment, productivity, innovations, or the ability of U.S.-based enterprises to compete internationally. 4. Unfunded Mandates Reform Act This rule: (a) Does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. E:\FR\FM\30AUR1.SGM 30AUR1 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations (b) Does not have a significant or unique effect on State, local, or tribal governments, or the private sector. (c) This regulation clarifies the applicability of two existing regulations—the regulatory requirement for reporting under 2 CFR 200.329— Reporting on Real Property, and the regulatory language establishing use of the Uniform Appraisal Standards for Federal Land Acquisitions (UASFLA or ‘‘Yellow Book’’) standard under 49 CFR 24.103—to financial assistance actions at the Department of the Interior. This regulation establishes a permitted standard for appraisals under 49 CFR 24.103 and specifies the required timing increments of reports under 2 CFR 200.329. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required. 5. Takings (E.O. 12630) Under the criteria in section 2 of E.O. 12630, this rule does not have significant takings implications. It does not impose any obligations on the public that would result in a taking. A takings implication assessment is not required. 6. Federalism (E.O. 13132) Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This is because it will not substantially and directly affect the relationship between the Federal and State governments. Accordingly, a federalism summary impact statement is not required. jspears on DSK3GMQ082PROD with RULES 7. Civil Justice Reform (E.O. 12988) This rule complies with the requirements of E.O. 12988. Specifically, this rule: (a) Meets the criteria of section 3(a) of this E.O. requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) Meets the criteria of section 3(b)(2) of this E.O. requiring that all regulations be written in clear language and contain clear legal standards. 8. Consultation With Indian Tribes (E. O. 13175) The Department of the Interior strives to strengthen its government-togovernment relationship with Indian tribes through a commitment to consultation and recognition of their right to self-governance and tribal sovereignty. DOI has evaluated this rule under the Department’s consultation VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 policy and under the criteria in E.O. 13175 and have determined that it has no substantial direct effect on federally recognized Indian tribes and that consultation under the Department’s tribal consultation policy is not required. 9. Paperwork Reduction Act, 44 U.S.C. 3501, et seq. This regulation will require the use of the SF 429 to fulfill the requirement in 2 CFR 200.329. Each Bureau will submit a request for common form usage to the Office of Management and Budget for use of SF 429—Real Property Status Report—Cover Page, SF 429A—Real Property Status Report—Attachment A—General Reporting, and SF 429B— Real Property Status Report— Attachment B—Request to Acquire, Improve, or Furnish. 10. National Environmental Policy Act This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required. Pursuant to Department Manual 516 DM 2.3A(2), section 1.10 of 516 DM 2, Appendix 1 excludes from documentation in an environmental assessment or impact statement ‘‘policies, directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature; or the environmental effects of which are too broad, speculative or conjectural to lend themselves to meaningful analysis and will be subject to the NEPA process, either collectively or case-by-case.’’ 11. Effects on the Energy Supply (E.O. 13211) This rule is not a significant energy action under the definition in E.O. 13211; therefore, a Statement of Energy Effects is not required. 12. Plain Language DOI is required by section 1(b)(12) of E.O. 12866 and Section 3(b)(1)(B) of E.O. 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that this rule: (a) Is logically organized; (b) Uses the active voice to address readers directly; (c) Uses common, everyday words and clear language rather than jargon; (d) Is divided into short sections and sentences; and (e) Uses lists and tables wherever possible. PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 45635 List of Subjects in 2 CFR Part 1402 Accounting, Administrative practice and procedure, Adult education, Aged, Agriculture, American Samoa, Bilingual education, Blind, Business and industry, Civil rights, Colleges and universities, Communications, Community development, Community facilities, Copyright, Credit, Cultural exchange programs, Educational facilities, Educational research, Education, Education of disadvantaged, Education of individuals with disabilities, Educational study programs, Electric power, Electric power rates, Electric utilities, Elementary and secondary education, Energy conservation, Equal educational opportunity, Federally affected areas, Government contracts, Grant programs, Grant programs—agriculture, Grant programs—business, Grant programs— communications, Grant programs— education, Grant programs—energy, Grant programs—health, Grant programs—housing and community development, Grant programs—social programs, Grants administration, Guam, Home improvement, Homeless, Hospitals, Housing, Human research subjects, Incorporation by reference, Indians, Indians—education, Infants and children, Insurance, Intergovernmental relations, International organizations, Inventions and patents, Loan programs, Loan programs social programs, Loan programs—agriculture, Loan programs— business and industry, Loan programs— communications, Loan programs— energy, Loan programs—health, Loan programs—housing and community development, Manpower training programs, Migrant labor, Mortgage insurance, Nonprofit organizations, Northern Mariana Islands, Pacific Islands Trust Territories, Privacy, Renewable energy, Reporting and recordkeeping requirements, Rural areas, Scholarships and fellowships, School construction, Schools, Science and technology, Securities, Small businesses, State and local governments, Student aid, Teachers, Telecommunications, Telephone, Urban areas, Veterans, Virgin Islands, Vocational education, Vocational rehabilitation, Waste treatment and disposal, Water pollution control, Water resources, Water supply, Watersheds, Women. For the reasons set forth in the preamble, the Department of the Interior revises 2 CFR part 1402 to read as follows: E:\FR\FM\30AUR1.SGM 30AUR1 45636 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations PART 1402—FINANCIAL ASSISTANCE INTERIOR REGULATION, SUPPLEMENTING THE UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS Subpart A—Definitions Sec. 1402.1 Definitions. 1402.2 Employment. 1402.3 Financial Assistance Officer. 1402.4 Foreign entity. 1402.5 Non-Federal entity. 1402.6 Real property. § 1402.3 Subpart B—General Provisions 1402.100 Purpose. 1402.101 To whom does this part apply? 1402.102 Are there any exceptions to this part? 1402.103 What other policies or procedures must non-Federal entities follow? 1402.104–1402.111 [Reserved] 1402.112 What are the conflict of interest policies? 1402.113 What are the mandatory disclosure requirements? 1402.114–1402.203 [Reserved] Subpart C—Pre-Federal Award Requirements and Contents of Federal Awards 1402.204 What are the merit review requirements for competitive awards? 1402.205 [Reserved] 1402.206 What are the FAIR requirements for domestic for-profit entities? 1402.207 What specific conditions apply? 1402.208–1402.299 [Reserved] Subpart D—Post Federal Award Requirements 1402.300 What are the statutory and national policy requirements? 1402.301–1402.314 [Reserved] 1402.315 What are the requirements for the availability of data? 1402.316–1402.328 [Reserved] 1402.329 What are the requirements for land acquired under an award? 1402.330–1402.413 [Reserved] 1402.414 What are the negotiated indirect cost rate deviation policies? 1402.415–1402.999 [Reserved] Authority: 5 U.S.C. 301 and 2 CFR part 200. Subpart A—Definitions jspears on DSK3GMQ082PROD with RULES § 1402.1 Definitions. The definitions in this subpart are for terms used in this part. For terms used in this part that are not defined, the definitions in 2 CFR part 200 apply. Different definitions may be found in Federal statutes or regulations that apply more specifically to particular programs or activities. § 1402.2 Employment. Employment includes any form of non-Federal employment or business VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 relationship involving the provision of personal services by the employee, whether to be undertaken at the same time as, or subsequent to Federal employment. It includes but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, or trustee of the other organization. Financial Assistance Officer. Financial Assistance Officer means a person with the authority to enter into, administer, and/or terminate financial assistance awards (including grants and cooperative agreements); and make related determinations and findings. § 1402.4 Foreign entity. Foreign entity means both ‘‘foreign public entity’’ and ‘‘foreign organization,’’ as defined in 2 CFR 200.46 and 200.47. § 1402.5 Non-Federal entity. Non-Federal entity means a State, local government, Indian tribe, institution of higher education (IHE), for-profit entity, or nonprofit organization that carries out a Federal award as a recipient or subrecipient. § 1402.6 Real property. Real property has the same meaning as set forth in 2 CFR 200.85, except that the definition in this section also applies to legal ownership interests in land such as easements. Subpart B—General Provisions § 1402.100 Purpose. (a) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards set forth in 2 CFR part 200 apply to the Department of the Interior. This part adopts, as the Department of the Interior (DOI) policies and procedures, the Office of Management and Budget’s (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements set forth in 2 CFR part 200. The Uniform Guidance applies in full except as stated in this part. (b) This part establishes DOI financial assistance regulations that implement or supplement the OMB’s Uniform Guidance. It is designed to ensure that financial assistance is administered in full compliance with applicable law, regulation, policy, and best practices to ensure the American people get the most value from the funds DOI awards on financial assistance. For supplemental guidance, DOI has adopted section numbering that corresponds to related OMB guidance in 2 CFR part 200. PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 (c) This part extends 2 CFR part 200, subparts A through E, policies and procedures to foreign public entities and foreign organizations as allowed by 2 CFR 200.101, except as indicated throughout this part. § 1402.101 To whom does this part apply? (a) This part applies to all DOI grantmaking activities and to any nonFederal entity that applies for, receives, operates, or expends funds from a DOI Federal award after October 29, 2019, unless otherwise authorized by Federal statute. (b) This part applies to foreign entity applicants and recipients, except where the DOI office or bureau determines that the application of this part would be inconsistent with the international obligations of the United States or the statutes or regulations of a foreign government (see § 1402.102). (1) Foreign entities are subject to the definitions and requirements in 2 CFR part 200, subparts A through E, and as supplemented by this part. In addition to the general requirements in 2 CFR part 200, foreign entities must follow the special considerations and requirements for different classes of recipients in subparts A through E as follows, unless otherwise instructed in this part: (i) Foreign public entities are to follow those for States, with the exception of the State payment procedures in 2 CFR 200.305(a). Foreign public entities must follow the payment procedures for non-Federal entities other than States; (ii) Foreign nonprofit organizations are to follow those for nonprofits; and (iii) Foreign higher education institutions are to follow those for Institutions of Higher Education (IHEs). (2) [Reserved] § 1402.102 this part? Are there any exceptions to (a) Awards made in accordance with the Indian Self-Determination and Education Assistance Act (Pub. L. 93– 638, 88 Stat. 2204), as amended, are governed by 25 CFR parts 900 and 1000, and by 2 CFR part 200, subparts E and F. (b) Exceptions for individual foreign entities to the requirements in this part may be authorized by the Director, Office of Grants Management. Such exceptions must be made in accordance with written bureau or office policy and procedures. (1) Foreign entities must request any exception to a requirement established in this part in writing. Such requests must be submitted to the funding bureau or office by an authorized E:\FR\FM\30AUR1.SGM 30AUR1 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations official of the foreign entity, and must provide sufficient pertinent background information, including: (i) Identification of the requirement under this part that is inconsistent with an in-country statute or regulation to which the foreign entity is subject; (ii) A complete description of the incountry statute or regulation, including a description of how it prohibits or otherwise limits the foreign entity’s ability to comply with the identified requirement under this part; and (iii) Identification of the entity’s name, DOI award(s) affected, and point of contact for the request. (2) The Director, Office of Grants Management may approve exceptions for individual foreign entities to the requirements of this part only when it has been determined that the requirement to be waived is inconsistent with either the international obligations of the United States or the statutes or regulations of a foreign government. Bureaus and offices will communicate exception request decisions to the requesting entity in writing. (3) Submissions by public international organization submissions of any assurances, certifications or representations required for and related to a Federal award do not constitute a waiver of immunities provided under the International Organizations Immunities Act (22 U.S.C. 288–288f). (4) Foreign entities are not subject to the following requirements in 2 CFR part 200: (i) Foreign entities may be subject to other applicable international or incountry alternatives to generally accepted accounting principles (GAAP), such as the International Financial Reporting Standards (IFRS). See 2 CFR 200.403, Factors affecting allowability of costs; (ii) 2 CFR 200.321, Contracting with small and minority businesses, women’s business enterprises, and labor surplus area firms; and (iii) Section 6002 of the Solid Waste Disposal Act. See 2 CFR 200.322, Procurement of recovered materials. jspears on DSK3GMQ082PROD with RULES § 1402.103 What other policies or procedures must non-Federal entities follow? Non-Federal entities must follow bureau or office policies and procedures as communicated in notices of funding opportunity (NOFOs) and award terms and conditions. In the event such policies or procedures conflict with 2 CFR part 200 or this part, 2 CFR part 200 or this part will supersede, unless otherwise authorized by Federal statute. VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 § § 1402.104–1402.111 § 1402.112 policies? [Reserved] What are the conflict of interest This section shall apply to all nonFederal entities. NOFOs and financial assistance awards must include the full text of the conflict of interest provisions in paragraphs (a) through (e) of this section. (a) Applicability. (1) This section intends to ensure that non-Federal entities and their employees take appropriate steps to avoid conflicts of interest in their responsibilities under or with respect to Federal financial assistance agreements. (2) In the procurement of supplies, equipment, construction, and services by recipients and by subrecipients, the conflict of interest provisions in 2 CFR 200.318 apply. (b) Notification. (1) Non-Federal entities, including applicants for financial assistance awards, must disclose in writing any conflict of interest to the DOI awarding agency or pass-through entity in accordance with 2 CFR 200.112. (2) Recipients must establish internal controls that include, at a minimum, procedures to identify, disclose, and mitigate or eliminate identified conflicts of interest. The recipient is responsible for notifying the Financial Assistance Officer in writing of any conflicts of interest that may arise during the life of the award, including those that have been reported by subrecipients. (c) Restrictions on lobbying. NonFederal entities are strictly prohibited from using funds under a grant or cooperative agreement for lobbying activities and must provide the required certifications and disclosures pursuant to 43 CFR part 18 and 31 U.S.C. 1352. (d) Review procedures. The Financial Assistance Officer will examine each conflict of interest disclosure on the basis of its particular facts and the nature of the proposed grant or cooperative agreement, and will determine whether a significant potential conflict exists and, if it does, develop an appropriate means for resolving it. (e) Enforcement. Failure to resolve conflicts of interest in a manner that satisfies the government may be cause for termination of the award. Failure to make required disclosures may result in any of the remedies described in 2 CFR 200.338, Remedies for noncompliance, including suspension or debarment (see also 2 CFR part 180). § 1402.113 What are the mandatory disclosure requirements? In addition to the disclosures required under 2 CFR 200.112 and 200.113, non- PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 45637 Federal entities, including applicants for all Federal awards, must disclose in writing any potential or actual conflict of interest to the DOI awarding agency or pass-through entity. Non-Federal entities and applicants must also disclose any outstanding unresolved matters with the Government Accountability Office or an Office of Inspector General when submitting a proposal and through the life of the award as needed. Unresolved items are those items that do not have an approved (by the awarding agency) corrective action plan in place and remain open. § § 1402.114–1402.203 [Reserved] Subpart C—Pre-Federal Award Requirements and Contents of Federal Awards § 1402.204 What are the merit review requirements for competitive awards? The requirements in this section apply to competitive grants and cooperative agreements unless otherwise authorized by Federal statute. Merit review procedures must be described or incorporated by reference in NOFOs (see 2 CFR part 200, appendix I, and 2 CFR 200.203). Pre-award considerations for both discretionary competitive and noncompetitive awards shall take into account the alignment of the award’s purpose, goals, and measurement with the current DOI Government Performance and Results Act Strategic Plan including, the mission statement, vision, values, goals, objectives, strategies, and performance metrics therein, unless otherwise prohibited by statute. (a) Competition in grant and cooperative agreement awards. Competition is expected in awarding discretionary funds, unless otherwise directed by Congress. When grants and cooperative agreements are awarded competitively, DOI requires that the competitive process be fair and impartial, that all applicants be evaluated only on the criteria stated in the announcement, and that no applicant receive an unfair competitive advantage. All competitive funding announcements, and all modifications/ amendments to those announcements, must be posted on Grants.gov (www.grants.gov). (b) Independent objective evaluation of financial assistance applications and proposals. Bureaus and offices must conduct reviews of applications submitted in response to the announcement and for selecting applicants for award following established merit review procedures. Bureaus and offices must conduct E:\FR\FM\30AUR1.SGM 30AUR1 jspears on DSK3GMQ082PROD with RULES 45638 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations comprehensive, impartial, and objective review of applications based on the criteria contained in the announcement by individuals who have no conflicts of interest with respect to the competing proposal/applications or applicants. Bureaus and offices must ensure reviewers are qualified, applications are scored on the basis of announced criteria, consideration is given to the level of applicant risk and past performance, applications are ranked, and funding determinations are made. (c) Evaluation and Selection Plan for notice of funding opportunities. Bureaus and offices must develop an Evaluation and Selection Plan in concert with the notice of funding opportunity to ensure consistency, and to outline and document the selection process. The Evaluation and Selection Plan should be finalized prior to the release of the notice of funding opportunity. An Evaluation and Selection Plan is comprised of five basic elements: (1) Merit review factors and subfactors; (2) A rating system (e.g., adjectival, color coding, numerical, or ordinal); (3) Evaluation standards or descriptions that explain the basis for assignment of the various rating system grades/scores; (4) Program policy factors; and (5) The basis for selection. (d) Basic review standards. Bureaus and offices must initially screen applications/proposals to ensure that they meet the standards in paragraphs (e) through (g) of this section before they are subjected to a detailed evaluation utilizing a merit review process specified in paragraph (h) of this section. The review system should include three phases: Initial Screening, Threshold Screening, and a Merit Review Evaluation Screening. Bureaus and offices may remove an application from funding consideration if it does not pass the basic eligibility screening per paragraphs (e) through (g) of this section. (e) Completeness. Bureaus and offices may return applications/proposals that are incomplete or otherwise fail to meet the requirements of the Grants.gov announcement to the applicant to be corrected, modified, or supplemented, or may reject the application/proposal outright. Until the application/proposal meets the substantive requirements of the announcement and this part, it shall not be given detailed evaluation. Bureaus and offices may use discretion to determine the length of time for applicants to resolve application deficiencies. (f) Timeliness. Bureaus and offices must consider the timeliness of the VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 application submission. Applications that are submitted beyond the announced deadline date must be removed from the review process. (g) Threshold Screening. Bureaus and offices are responsible for screening applications and proposals for the adequacy of the budget and compliance with statutory and other requirements. The SF–424 and budget information (SF–424A, SF–424C, or OMB-approved alternate budget data collection) must be reviewed according to Department of the Interior policy. (h) Merit Review Evaluation Screening. This is the final review stage where the technical merit of the application/proposal is reviewed. In the absence of a program rule or statutory requirement, program officials shall develop criteria that include all aspects of technical merit. Bureaus and offices shall develop criteria that are conceptually independent of each other, but all-encompassing when taken together. While criteria will vary, the basic criteria shall focus reviewers’ attention on the project’s underlying merit (i.e., significance, approach, and feasibility). The criteria shall focus not only on the technical details of the proposed project but also on the broader importance or potential impact of the project. The criteria shall be easily understood. (i) Risk assessments. Bureaus and offices must also consider risk thresholds during application/proposal review process. Elements to be considered may include organization; single audit submissions, past performance; availability of necessary resources, equipment, or facilities; financial strength and management capabilities; and procurement procedures; or procedures for selecting and monitoring subrecipients or subvendors, if applicable. For all nonFederal entities that receive an award, the Financial Assistance Officer must document the risk analysis. (j) Requirements for proposal evaluators. Upon receipt of a Memorandum of Appointment, each proposal evaluator and advisor must sign and return a Conflict of Interest Certificate to the Financial Assistance Officer. If an actual or potential conflict of interest exists, the appointee may not evaluate or provide advice on a potential applicant’s proposal until the conflict has been resolved or mitigated. Further, each proposal evaluator or advisor must agree to comply with any notice or limitation placed on the application. Upon completion of the review, the proposal evaluator or advisor shall return or destroy all copies of the application and accompanying PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 proposals (or abstracts) to DOI; and unless authorized by the Financial Assistance Officer or agency designee, the reviewer shall not contact the nonFederal entity concerning any aspect of the application. § 1402.205 [Reserved] § 1402.206 What are the FAIR requirements for domestic for-profit entities? (a) Requirements for domestic forprofit entities. (1) Section 1402.207(a) contains standard award terms and conditions that always apply to forprofit entities and § 1402.207(b) contains terms that apply to sub-awards or contracts with for-profit entities over the simplified acquisition threshold. Bureaus and offices must incorporate into awards to domestic for-profit organizations the award terms and conditions that always apply, either directly or by reference. (2) Bureaus and offices may apply the administrative guidelines in subparts A through D of 2 CFR part 200, the cost principles at 48 CFR part 31, subpart 31.2, and the procedures for negotiating indirect costs (detailed in § 1402.414) to domestic for-profit entities. (3) Depending on the nature of a particular program, offices and bureaus may additionally develop programspecific administrative guidelines for domestic for-profits based on the requirements in 2 CFR part 200, subparts A through D, but may not apply more restrictive requirements than the requirements in 2 CFR part 200, subparts A through D, unless approved by OMB through a request to the Director, Office of Grants Management. (b) Requirements for award terms and conditions. Bureau and office award terms and conditions must be managed in accordance with the requirements in 2 CFR 200.210, Information contained in a Federal award. § 1402.207 apply? What specific conditions (a) The following financial assistance award terms and conditions always apply to domestic for-profit entities: (1) 2 CFR part 25, Universal Identifier and System for Award Management. (2) 2 CFR part 170, Reporting Subawards and Executive Compensation Information. (3) 2 CFR part 175, Award Term for Trafficking in Persons. (4) 2 CFR part 1400, government-wide debarment and suspension (nonprocurement). (5) 2 CFR part 1401, Requirements for Drug-Free Workplace (Financial Assistance). E:\FR\FM\30AUR1.SGM 30AUR1 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations (6) 43 CFR part 18, New Restrictions on Lobbying. Submission of an application also represents the applicant’s certification of the statements in 43 CFR part 18, appendix A, Certification Regarding Lobbying. (7) 41 U.S.C. 4712, Whistleblower Protection for Contractor and Grantee Employees. The requirement in this paragraph (a)(7) applies to all awards issued after July 1, 2013. (8) 41 U.S.C. 6306, Prohibition on Members of Congress Making Contracts with the Federal Government. No member of or delegate to the United States Congress or Resident Commissioner shall be admitted to any share or part of this award, or to any benefit that may arise therefrom; this paragraph (a)(8) shall not be construed to extend to an award made to a corporation for the public’s general benefit. (9) Executive Order 13513, Federal Leadership on Reducing Text Messaging while Driving. Recipients are encouraged to adopt and enforce policies that ban text messaging while driving, including conducting initiatives of the type described in section 3(a) of the Executive Order. (b) The following financial assistance award terms and conditions always apply to non-profit and domestic forprofit entities. The recipient shall insert the following clause in all subawards and contracts related to the prime award that are over the simplified acquisition threshold, as defined in the Federal Acquisition Regulation: jspears on DSK3GMQ082PROD with RULES All awards and related subawards and contracts over the Simplified Acquisition Threshold, and all employees working on applicable awards and related subawards and contracts, are subject to the whistleblower rights and remedies in accordance with the pilot program on award recipient employee whistleblower protections established at 41 U.S.C. 4712 by section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112–239). Recipients, their subrecipients and contractors that are awarded contracts over the Simplified Acquisition Threshold related to an applicable award, shall inform their employees, in writing, in the predominant language of the workforce, of the employee whistleblower rights and protections under 41 U.S.C. 4712. (c) The following award terms and conditions apply to for-profit recipients as specified in 2 CFR 200.101: (1) Administrative requirements: 2 CFR part 200, subparts A through D. (2) Cost principles: 48 CFR part 31, subpart 31.2, Contracts with Commercial Organizations. (3) Indirect cost rate negotiations. For information on indirect cost rate negotiations, contact the Interior VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 Business Center (IBC) Indirect Cost Services Division by telephone at (916) 566–7111 or by email at ics@ibc.doi.gov. Visit the IBC Indirect Cost Services Division website at https://www.doi.gov/ ibc/services/Indirect_Cost_Services/ index.cfm for more information. § § 1402.208–1402.399 [Reserved] Subpart D—Post Federal Award Requirements § 1402.300 What are the statutory and national policy requirements? (a) DOI bureaus and offices will communicate to the non-Federal entity all relevant public policy requirements, including those in general appropriations provisions, and incorporate them either directly or by reference in the terms and conditions of the Federal award. (b) The non-Federal entity is responsible for complying with all requirements of the Federal award. For all Federal awards, this includes the provisions of Federal Funding Accountability and Transparency Act (FFATA), which includes requirements on executive compensation, and also requirements implementing the FFATA for the non-Federal entity at 2 CFR part 25, financial assistance use of universal identifier and system for award management, and 2 CFR part 170, Reporting Subaward and Executive Compensation Information. See also statutory requirements for whistleblower protections at 10 U.S.C. 2409, 41 U.S.C. 4712, and 10 U.S.C. 2324, 41 U.S.C. 4304 and 4310. (c) Recipients conducting work outside the United States are responsible for coordinating with appropriate United States and foreign government authorities as necessary to make sure all required licenses, permits, or approvals are obtained before undertaking project activities. DOI does not assume responsibility for recipient compliance with the laws, regulations, policies, or procedures of the foreign country in which the work is conducted. (d) As required in 54 U.S.C. 307101, World Heritage Convention, prior to the approval of any undertaking outside the United States that may directly and adversely affect a property that is on the World Heritage List or on the applicable country’s equivalent of the National Register of Historic Places, the DOI bureau or office having direct or indirect jurisdiction over the undertaking shall take into account the effect of the undertaking on the property for purposes of avoiding or mitigating any adverse effect. PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 45639 (e) Foreign entities are responsible for complying with all requirements of the Federal award. For awards to foreign entities, this includes: (1) 2 CFR part 25, Universal Identifier and System for Award Management, unless the entity meets one or more qualifying conditions and is exempted by the awarding bureau or office as provided for in 2 CFR part 25; (2) 2 CFR part 170, Reporting Subaward and Executive Compensation Information; (3) 2 CFR part 175, Award Term for Trafficking in Persons. This term is required in awards to foreign private entities. The term is also required in awards to foreign public entities, if funding could be provided under the award to a foreign private entity as a subrecipient; (4) 2 CFR part 1400, Nonprocurement Debarment and Suspension. Awards to foreign organizations are covered transactions under the DOI nonprocurement debarment and suspension program. Awards to foreign public entities are not covered transactions; (5) 43 CFR part 18, New Restrictions on Lobbying. Foreign entities shall file the 43 CFR part 18, appendix A, certification, and a disclosure form, if required, with each application for Federal assistance. See also 31 U.S.C. 1352, Limitation on use of appropriated funds to influence certain Federal contracting and financial transactions; and (6) Public Law 113–235 (128 Stat. 2391, Dec. 16, 2014). Federal award recipients are prohibited from requiring employees or contractors seeking to report fraud, waste, or abuse to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or contractors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information. §§ 1402.301–1402.314 [Reserved] § 1402.315 What are the requirements for availability of data? (a) All data, methodology, factual inputs, models, analyses, technical information, reports, conclusions, valuation products or other scientific assessments in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual, resulting from a financial assistance agreement is available for use by the Department of the Interior, including being available in a manner that is sufficient for independent verification. E:\FR\FM\30AUR1.SGM 30AUR1 45640 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations (b) The Federal Government has the right to: (1) Obtain, reproduce, publish, or otherwise use the data, methodology, factual inputs, models, analyses, technical information, reports, conclusions, or other scientific assessments, produced under a Federal award; and (2) Authorize others to receive, reproduce, publish, or otherwise use such data, methodology, factual inputs, models, analyses, technical information, reports, conclusions, or other scientific assessments, for Federal purposes, including to allow for meaningful thirdparty evaluation. (c) Bureaus and offices of the Department of the Interior must include the language in paragraphs (a) and (b) of this section in full text in all NOFOs and financial assistance agreements. §§ 1402.316–1402.328 [Reserved] jspears on DSK3GMQ082PROD with RULES § 1402.329 What are the requirements for land acquired under an award? (a) Approval prior to land purchases. Bureaus and offices must ensure compliance with the prior written approval requirements for land acquisition in 2 CFR 200.439. Whenever a recipient is seeking DOI’s approval to use award funds to purchase an interest in real property, the OMB-approved governmentwide data elements for collection of real property reporting information, as of October 29, 2019, SF– 429–B, Request to Acquire, Improve, or Furnish, or approved alternate standardized data collection, must be submitted to the bureau or office. The Financial Assistance Officer is responsible for ensuring that this requirement is met. All aspects of the purchase must be in compliance with applicable laws and regulations relating to purchases of land or interests in land. (b) Appraisal requirements for land purchases. (1) Unless a waiver valuation applies in accordance with 49 CFR 24.102(c), land or interests in land that will be acquired under the award must be appraised in accordance with the Uniform Appraisal Standards for Federal Land Acquisitions, (UASFLA or the ‘‘Yellow Book’’), developed and promulgated by the Interagency Land Acquisition Conference, 1155 15th Street NW, Suite 1111, Washington, DC 20005, by a real property appraiser licensed or certified by the State or States in which the property is located. The appraisal report shall be reviewed by a qualified review appraiser that meets qualifications established by the DOI Appraisal and Valuation Services Office (AVSO), which is responsible for appraisal and valuation services and VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 policy across the Department. Bureaus and offices shall ensure that funds are not disbursed for purchases of land or interests in land without an appraisal accompanied by a written appraisal review report that complies with standards approved by AVSO. Where appraisals are required to support federally assisted land acquisitions, AVSO has oversight responsibilities for these appraisals, including those purchased through financial assistance actions in the various grant programs within the Department. AVSO will coordinate with grant programs to conduct periodic internal control review of appraisal and appraisal review reports prepared in conjunction with grant applications for land acquisition. (2) The Director of the Federal Register approves the material referenced in this section for incorporation by reference into this section in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may inspect a copy at the Appraisal and Valuation Services Office within the Department of the Interior located at 1849 C St. NW, Washington, DC 20240, (202) 208–3466, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email fedreg.legal@nara.gov or go to www.archives.gov/federal-register/cfr/ ibr-locations.html. (i) Interagency Land Acquisition Conference, 1155 15th Street NW, Suite 1111, Washington, DC 20005. (A) Uniform Appraisal Standards for Federal Land Acquisitions, Sixth Edition, 2016. (B) You may obtain a print copy or interactive electronic version from The Appraisal Foundation at https:// www.appraisalfoundation.org/iMIS/ itemDetail?iProduct Code=351&Category=PUB or a read-only version from the U.S. Department of Justice at https://www.justice.gov/file/ 408306/download. (ii) [Reserved] (c) Foreign land acquisition. Land to be acquired under an award that is located outside the United States must be appraised by an independent real property appraiser licensed or certified in the country in which the property is located in accordance with any incountry appraisal standards, if they exist, or with International Valuation Standards, when such appraisals are available and financially feasible. Otherwise, the non-Federal entity must use the most widely accepted business practice for property valuation in the country where the property is located and provide to the awarding DOI bureau PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 or office a detailed explanation of the methodology used to determine value. (d) Requirements for recipient reporting on real property purchases. (1) For all financial assistance actions where real property is acquired under the Federal award, the recipient must submit reports on the status of the real property. Bureaus and offices must ensure recipients receive written notification of those reporting requirements, including reporting frequency/schedule, report content requirements, and submission instructions, at the time of award. (2) If the interest in the land will be held for less than 15 years, reports must be submitted annually. If the interest in the land will be held for 15 years or more, then the recipient must submit the first report within one year of the period of performance end date of the award and then, at a minimum, every five years thereafter. (3) The reports must be submitted to the Financial Assistance Officer within the period of performance of the award. After the end of the period of performance, reports must be submitted to a designated individual. Each bureau must have a process in place to designate specific individuals to receive, and review and accept the report. (4) Recipients must use the OMBapproved governmentwide data elements for collection of real property reporting information, as of October 29, 2019, the Real Property Status Report Standard Form (SF) 429–A, General Reporting, to report status of land or interests in land under Federal financial assistance awards. Bureaus or offices may request to use an equivalent reporting format. The Director, Office of Grants Management must approve alternate equivalent formats. (5) Reports must include, at a minimum, sufficient information to demonstrate that all conditions imposed on the land use are being met, and a signed certification to that fact by the recipient of the financial assistance award. (6) The Financial Assistance Officer must indicate the reporting schedule, including due dates, in the award document. The schedule must conform with the frequency required in paragraph (d)(2) of this section. For awards issued prior to October 29, 2019, the recipient must contact the program to establish due dates for reports going forward. If there is already a reporting schedule in place, then the recipient and the program shall ensure that the schedule is updated to conform with this part prior to the due date of the next scheduled report. E:\FR\FM\30AUR1.SGM 30AUR1 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations §§ 1402.330–1402.413 [Reserved] jspears on DSK3GMQ082PROD with RULES § 1402.414 What are the negotiated indirect cost rate deviation policies? (a) This section establishes DOI policies, procedures, and decision making criteria for using an indirect cost rate that differs from the non-Federal entity’s negotiated rate or approved rate for DOI awards. These are established in accordance with 2 CFR 200.414(c)(3) or (f). (b) DOI accepts indirect cost rates that have been reduced or removed voluntarily by the proposed recipient of the award, on an award-specific basis. (c) For all deviations to the Federal negotiated indirect cost rate, including statutory, regulatory, programmatic, and voluntary, the basis of direct costs against which the indirect cost rate is applied must be: (1) The same base identified in the recipient’s negotiated indirect cost rate agreement, if the recipient has a federally negotiated indirect cost rate agreement; or (2) The Modified Total Direct Cost (MTDC) base, in cases where the recipient does not have a federally negotiated indirect cost rate agreement or, with prior approval of the awarding bureau or office, when the recipient’s federally negotiated indirect cost rate agreement base is only a subset of the MTDC (such as salaries and wages) and the use of the MTDC still results in an overall reduction in the total indirect cost recovered. MTDC is the base defined by 2 CFR 200.68, Modified Total Direct Cost (MTDC). (d) In cases where the recipient does not have a federally negotiated indirect cost rate agreement, DOI will not use a modified rate based upon total direct cost or other base not identified in the federally negotiated indirect cost rate agreement or defined within 2 CFR 200.68. (1) Indirect cost rate deviation required by statute or regulation. In accordance with 2 CFR 200.414(c)(1), a Federal agency must use a rate other than the Federal negotiated rate where required by Federal statute or regulation. For such instances within DOI, the official award file must document the specific statute or regulation that required the deviation. (2) Indirect cost rate reductions used as cost-share. Instances where the recipient elects to use a rate lower than the federally negotiated indirect cost rate, and uses the balance of the unrecovered indirect costs to meet a cost-share or matching requirement required by the program and/or statute, are not considered a deviation from 2 CFR 200.414(c), as the federally VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 negotiated indirect cost rate is being applied under the agreement in order to meet the terms and conditions of the award. (3) Programmatic indirect cost rate deviation approval process. Bureaus and offices with DOI approved deviations in place prior to October 29, 2019 are not required to resubmit those for reconsideration following the procedures in this paragraph (d)(3). The following requirements apply for review, approval, and posting of programmatic indirect cost rate waivers: (i) Program qualifications. Programs that have instituted a program-wide requirement and governance process for deviations from federally negotiated indirect cost rates may qualify for a programmatic deviation approval. (ii) Deviation requests. Deviation requests must be submitted by the responsible senior program manager to the DOI Office of Grants Management. The request for deviation approval must include a description of the program, and the governance process for negotiating and/or communicating to recipients the indirect cost rate requirements under the program. The program must make its governance documentation, rate deviations, and other program information publicly available. (iii) Approvals. Programmatic deviations must be approved, in writing, by the Director, Office of Grants Management. Approved deviations will be made publicly available. (4) Voluntary indirect cost rate reduction. On any single award, an applicant and/or proposed recipient may elect to reduce or eliminate the indirect cost rate applied to costs under that award. The election must be voluntary and cannot be required by the awarding official, NOFO, program, or other non-statutory or non-regulatory requirements. For these award-specific and voluntary reductions, DOI can accept the lower rate provided the notice of award clearly documents the recipient’s voluntary election. Once DOI has accepted the lower rate, that rate will apply for the duration of the award. (5) Unrecovered indirect costs. In accordance with 2 CFR 200.405, indirect costs not recovered due to deviations to the federally negotiated rate are not allowable for recovery via any other means. §§ 1402.415–1402.499 [Reserved] Scott J. Cameron, Principal Deputy Assistant Secretary for Policy Management and Budget. [FR Doc. 2019–18650 Filed 8–29–19; 8:45 am] BILLING CODE 4334–63–P PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 45641 DEPARTMENT OF HOMELAND SECURITY 6 CFR Part 5 [Docket No. DHS–2019–0031] Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security U.S. Immigration and Customs Enforcement–016 FALCON Search and Analysis System of Records U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security. ACTION: Final rule. AGENCY: The Department of Homeland Security (DHS) is issuing a final rule to amend its regulations to exempt portions of an updated and reissued system of records titled, ‘‘Department of Homeland Security/U.S. Immigration and Customs Enforcement–016 FALCON Search and Analysis System of Records’’ from certain provisions of the Privacy Act. Specifically, the Department exempts portions of this system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. DATES: This final rule is effective August 30, 2019. FOR FURTHER INFORMATION CONTACT: For general questions please contact: Jordan Holz, (202) 732–3300, Acting Privacy Officer, Immigration and Customs Enforcement, Washington, DC 20536. For privacy issues please contact: Jonathan R. Cantor (202)–343–1717, Acting Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background DHS U.S. Immigration and Customs Enforcement (ICE) published a notice of proposed rulemaking (NPRM) in the Federal Register (82 FR 20844, May 4, 2017) proposing to exempt portions of DHS/ICE–016 FALCON Search and Analysis (FALCON–SA) System of Records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. This system of records was published concurrently in the Federal Register (82 FR 20905, May 4, 2017), and DHS sought comments on both the NPRM and System of Records Notice (SORN). It should be noted that the NPRM was over-inclusive regarding Privacy Act exemptions. This final rule appropriately limits the exemptions to what is permitted under the Privacy Act. E:\FR\FM\30AUR1.SGM 30AUR1

Agencies

[Federal Register Volume 84, Number 169 (Friday, August 30, 2019)]
[Rules and Regulations]
[Pages 45627-45641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18650]



========================================================================
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. 

========================================================================


Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules 
and Regulations

[[Page 45627]]



DEPARTMENT OF THE INTERIOR

Office of the Secretary

2 CFR Part 1402

[DOI-2018-0013; 190D0102DM, DS62400000, DLSP00000.000000, DX62401]
RIN 1090-AB19


Financial Assistance Interior Regulation

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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

SUMMARY: This final rule establishes the Financial Assistance Interior 
Regulation (FAIR). The FAIR supplements the Office of Management and 
Budget (OMB) Uniform Administrative Requirements, Cost Principles, and 
Audit Requirements for Federal Awards (Uniform Guidance), which was 
adopted by the Department of the Interior (DOI or Department) on 
December 19, 2014. This final rule supports the Department's goal of 
improving its financial assistance program, consolidate the 
Department's financial assistance regulations and policies derived from 
the OMB Uniform Guidance, and streamline the implementation of OMB's 
Uniform Guidance and DOI financial assistance policy.

DATES: Effective October 29, 2019. The incorporation by reference of 
certain publications listed in the rule is approved by the Director of 
the Federal Register as of October 29, 2019.

FOR FURTHER INFORMATION CONTACT: Mr. Kerry Neal, Director, Office of 
Grants Management, Department of the Interior, 1849 C Street NW, Mail 
Stop 4262 MIB, Washington, DC 20240; telephone (202) 208-3100; or email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On December 26, 2013, the Office of Management and Budget (OMB) 
published its Uniform Administrative Requirements, Cost Principles, and 
Audit Requirements for Federal Awards (referred to as the ``Uniform 
Guidance,'' 78 FR 78590). The OMB Uniform Guidance, 2 CFR part 200, 
provided a government-wide framework for Federal awards management and 
streamlined administrative requirements, cost principles, and audit 
requirements for Federal awards including grants and cooperative 
agreements.
    The Uniform Guidance required Federal agencies to promulgate 
regulations implementing the policies and procedures applicable to 
Federal awards by December 26, 2014. On December 19, 2014, the 
Department published a final rule to adopt the OMB Uniform Guidance in 
full as 2 CFR part 1402, Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards (79 FR 75867). 
Three days later, on December 22, 2014, DOI issued memoranda to 
supplement the following provisions of the OMB Uniform Guidance: (1) 
Indirect Cost Rates for Federal Financial Assistance Awards and 
Agreements; (2) Conflict of Interest and Mandatory Disclosures for 
Financial Assistance; (3) Financial Assistance Application and Merit 
review Processes; and (4) Financial Assistance Awards for For-Profit 
Entities, Foreign Public Entities, and Foreign Organizations. On 
February 8, 2016, the Department published a proposed rule to establish 
the FAIR and to consolidate all of the policy memoranda into a 
regulation to be codified at 2 CFR part 1402 (81 FR 6462). Two comments 
were received addressing, first, details of the conflicts of interest 
provision and, second, the application of 2 CFR part 200, subparts E 
(Cost Principles) and F (Audit Requirements), to tribal awards. These 
two comments were addressed by expanding the conflict of interest 
provision to be consistent with the Standards of Ethical Conduct for 
Employees of the Executive Branch, 5 CFR part 2635, and by clarifying 
the applicability of 2 CFR part 200, subparts E and F, to tribal awards 
in this final rulemaking, respectively.
    Because the RIN for the 2016 proposed rule expired and Departmental 
leadership wanted to strengthen the conflict of interest provisions and 
incorporate open science and land acquisition provisions, the 
Department proposed the current version of its FAIR regulations as a 
revision to 2 CFR part 1402 for public comment on March 21, 2019. The 
Department received 55 public comments (84 FR 10439). The final rule 
reflects the totality of comments considered from the Notice of 
Proposed Rulemaking (NPRM) stage of the process.

II. Overview of the Final Rule

    The FAIR regulations final rule: First, revises 2 CFR part 1402 to 
more accurately reflect exceptions to this part; and second, adds 
supplemental regulations for DOI's financial assistance program that is 
codified at 2 CFR part 1402. The rule represents an administrative 
simplification and does not make any substantive changes to 2 CFR part 
200 policies and procedures. Thus, this rulemaking does not revisit 
substantive issues resolved during the development and finalization of 
the OMB Uniform Guidance which was adopted by the Department on 
December 19, 2014. This rule helps ensure that financial assistance 
provided by the DOI is administered in full compliance with applicable 
law, regulation, policy and best practices to ensure the American 
people get the most value from the money the DOI spends on financial 
assistance. The sections in this final rule represent areas of the 
financial assistance program where questions have been raised by 
stakeholders, including auditors. As a result, DOI clarified specific 
areas.

(a) Major Changes

    After reviewing and considering the comments received on the NPRM, 
we made several clarifications and changes in this final rule. The 
final rule:
     Clarifies the definition for real property.
     Simplifies and clarifies language for the conflict of 
interest requirements.
     Clarifies mandatory disclosure limitations on unresolved 
items.
     Simplifies language for the merit review requirements; 
removes the term ``maximum'' associated with discretionary awards.
     Clarifies that Sec.  1402.207(b) conditions applies to 
both nonprofit and for-profit recipients.
     Deletes duplicative language for the lobbying disclosure 
and certification requirements.

[[Page 45628]]

     Removes the definition of data and revises Sec.  1402.315 
to clarify the distinction between data and other related types of 
information.

(b) Key Issues

    The DOI reviewed many comments from a variety of entities, but 
received the majority of the detailed comments focused on real 
property, appraisals, and scientific data. These key issues are 
addressed more fully in section III of this preamble, but include:
     Real Property Program Impacts--Includes such things as 
costs, time to complete appraisals, scarcity of Yellow Book appraisers, 
and grandfathering of appraisals already in progress.
     Uniform Appraisal Standards for Federal Land Acquisitions 
(UASFLA or Yellow Book) Technical Issues/Requirements--Includes such 
things as the applicability of UASFLA, specific technical requirements, 
and assertions of inconsistent requirements for UASFLA compliance 
within the DOI and externally across other government agencies.
     Qualifications and Training of Appraisers--Includes such 
things as uncertainty regarding qualifications of appraisers for 
conducting UASFLA appraisals, qualifications for review appraisers, 
appraisal review conducted by non-appraisers, and terminology used when 
referring to the appraisal credentials issued by States.
     Promoting Open Science--Includes the expanded definition 
of data and the requirement to make data relied upon in research 
available to the public and the format to provide the data.
    Incorporation by Reference: The purpose of the Uniform Appraisal 
Standards for Federal Land Acquisitions (Yellow Book) is to promote 
fairness, uniformity, and efficiency in the appraisal of real property 
in Federal acquisitions. The same goals of uniformity, efficiency, and 
fair treatment of those affected by public projects underlie the 
Uniform Relocation Assistance and Real Property Acquisition Policies 
Act of 1970 which applies to Federal acquisitions as well as many State 
and local government acquisitions involving Federal funds. The Yellow 
Book is available in hard copy or interactive electronic format from 
The Appraisal Foundation at https://www.appraisalfoundation.org/imis/TAF/Yellow_Book.aspx or from the U.S. Department of Justice at https://www.justice.gov/file/408306/download.

(c) Section by Section Analysis

    This portion of the preamble summarizes the final rule and 
highlights certain aspects of the rule that may benefit from additional 
explanation.
    Subpart A of the final rule sets forth definitions for terms used 
in this part. Terms defined in this rulemaking are ``employment,'' 
``financial assistance officer,'' ``foreign entity,'' ``non-Federal 
entity,'' and ``real property.'' As explained in the proposed rule, 
non-Federal entity is expanded to include for-profit organizations. 
Several of these terms help clarify regulatory changes designed to 
avoid conflicts of interest which might place a non-Federal entity, its 
employees, and/or its subrecipients in a position of conflict, real or 
apparent. The final rule adopts the proposed term ``real property'' to 
address DOI's specific focus on interests in land. The ``data'' 
definition was removed based on comments received stating that the 
definition was beyond the scope of typical definitions in the industry.
    Subpart B sets forth general provisions including: The purpose of 
the part, application, exceptions, policies and procedures that apply 
to non-Federal entities, conflict of interest policies, and mandatory 
disclosure requirements. DOI adopted as proposed Sec.  1402.100, which 
includes establishment of financial assistance regulations designed to 
ensure that financial assistance is administered in full compliance 
with applicable law, regulation, policy and best practices; and to help 
ensure that the American people get the most value from the money that 
DOI spends on financial assistance. The adopted Sec.  1402.101 provides 
that the regulation is applicable to all DOI grant-making activities 
and to any non-Federal entity that applies for, receives, operates, or 
expends funds from a DOI financial assistance award after the effective 
date of this final rule, unless otherwise authorized by Federal 
statute. Section 1402.103 adopted as proposed explains that non-Federal 
entities must also follow bureau or office policies and procedures as 
communicated in notices of funding opportunities and award terms and 
conditions. This section also reflects the order of precedence, where 
policies or procedures may conflict with existing regulations at 2 CFR 
part 200; or this part. In such cases, then the regulations at 2 CFR 
part 200 or this part, when final, will supersede, unless otherwise 
authorized by Federal statute.
    Section 1402.112 sets forth requirements related to conflicts of 
interest that apply to recipients of financial assistance awards. The 
final rule, adopted as proposed, applies to all non-Federal entities 
and requires the full text of language proposed in paragraphs (a) 
through (e) in all notice of funding opportunities and financial 
assistance awards. The proposed rule was amended in order to make clear 
to non-Federal entities that they must appropriately address prohibited 
conflicts of interest preventing them from providing impartial, 
technically sound, and objective performance under or with respect to a 
Federal financial assistance agreement. Paragraph (b) Requirements was 
removed to avoid any confusion that the rule was not in compliance with 
statutory and regulatory law. Paragraphs (a) through (e) set forth 
directions on applicability, appropriate action that must be taken to 
avoid a conflict of interest, required notification, and enforcement.
    Section 1402.113 provides as proposed that, in addition to the 
disclosures required under 2 CFR 200.112 and 200.113, non-Federal 
entities and applicants must disclose in writing any potential or 
actual conflict of interest; and must also disclose any outstanding 
unresolved matters with the Government Accountability Office or the 
Office of Inspector General of any Federal agency when submitting a 
proposal and throughout the life of the award. ``Unresolved'' matters 
are now more clearly defined.
    Under subpart C, the rule addresses: Merit review requirements for 
competitive awards, requirements for domestic for-profit entities, 
specific financial assistance award terms and conditions that apply to 
domestic for-profit entities, and lobbying disclosure and certification 
requirements.
    Section 1402.204 sets forth merit review requirements for 
competitive grants and cooperative agreements unless otherwise 
prohibited by Federal statute. After reviewing the comments, DOI 
removed the requirements for bureaus and offices to create review 
systems that consider statutory or regulatory provisions, business 
evaluation, risk assessment, and other applicable government-wide pre-
award considerations for discretionary programs that are 
noncompetitive. While DOI believes review systems are important, it did 
not believe the specific requirements needed to be in the regulation.
    This section also adopts as proposed, required pre-award 
considerations for both discretionary competitive and noncompetitive 
awards to take into account the alignment of the award's purpose, 
goals, and measurement with the current DOI Government Performance and 
Results Act Strategic Plan. Section 1402.204 also adopts as amended an 
expectation of competition in awarding discretionary funds, unless

[[Page 45629]]

otherwise directed by Congress. After the review of comments, DOI did 
remove the word ``maximum'' that described the competition requirement. 
The final rule also adopts that when grants and cooperative agreements 
are awarded competitively, the process will be fair and impartial, that 
all applicants will be evaluated only on the criteria stated in the 
announcement, and that no applicant will receive an unfair competitive 
advantage. This section of the rule also sets forth direction on: The 
composition of an evaluation and selection plan, completeness of 
applications and proposals, timeliness, threshold screening, merit 
review evaluation screening, and risk assessments.
    Sections 1402.206 and 1402.207 are designed to be read together as 
proposed. Section 1402.206 provides that Sec.  1402.207(a) contains 
standard award terms and conditions that always apply to for-profit 
entities and that terms in Sec.  1402.207(b) contain terms for 
recipients including non-profits and for-profits to apply to all 
subawards and contracts over the simplified acquisition threshold. The 
section further lists additional administrative guidelines in existing 
regulations and in proposed Sec.  1402.414 that may be applied to 
domestic for-profit entities. Provision is made for particular program 
offices and bureaus to develop specific administrative guidelines for 
domestic for-profits. Finally, Sec.  1402.206 adopts that bureau and 
office award terms and conditions must be managed in accordance with 
the requirements in the existing 2 CFR 200.210.
    Section 1402.207 lists specific conditions that always apply to 
domestic for-profit entities and subawards. In addition to all other 
applicable terms and conditions, specific financial assistance award 
terms and conditions adopted in Sec.  1402.207(d) apply to foreign 
entities. DOI also clarified that the provisions in Sec.  1402.207(b) 
applies to both non-profit and domestic for-profit entities.
    Section 1402.208 was removed after DOI's review of the comments, as 
DOI agreed it was redundant with Sec.  1402.112(d) restrictions on 
lobbying.
    Subpart D includes regulations that set forth post Federal award 
requirements.
    Section 1402.315 amends requirements for availability of data that 
implement Secretary's Order 3369, ``Promoting Open Science,'' dated 
October 18, 2018. The requirements in this section rely on existing 
regulatory provisions found at 2 CFR 200.315(d) to achieve the goals 
set forth in section 4b(3) of the Secretary's Order to provide the 
American people with enough information to thoughtfully and 
substantively evaluate the data, methodology, and analysis used by the 
Department. To accomplish these goals, the section provides that DOI 
bureaus and offices shall specifically require under the terms of any 
award, the ability to publicly release associated data, methodology, 
factual inputs, models, analyses, technical information, reports, 
conclusions, or other scientific assessments in any medium or form, 
including textual, numerical, graphic, cartographic, narrative, or 
audiovisual, subject to applicable laws. This provision applies to all 
grants, cooperative agreements, or other similar agreements between any 
Bureau, Office, or other organization of the Department and any third 
party; and would not be limited to rulemaking. This section recognizes 
the Department's responsibility to ensure that the benefits derived 
from Federal financial assistance are generally available to the 
public, subject to applicable law. DOI clarified in the final rule that 
methodologies, factual inputs, models, analyses, technical information, 
reports, conclusions, or other scientific assessments in any medium or 
form, including textual, numerical, graphic, cartographic, narrative, 
or audiovisual resulting from a financial assistance agreement should 
be available to DOI for sufficient independent verification. It further 
clarified the Federal Government rights to such items. It also adopts, 
as proposed, the requirement that Bureaus and offices must include 
these requirements in all notice of funding opportunities.
    Section 1402.329 adopts the requirements for land acquired under an 
award. The regulation provides that prior to land purchases, bureaus 
and offices must ensure compliance with the prior written approval 
requirements for land acquisition in the existing 2 CFR 200.439. 
Whenever a recipient is seeking DOI approval to use award funds to 
purchase an interest in real property, OMB-approved government-wide 
data elements must be submitted to the responsible bureau or office. 
For this provision, the Financial Assistance Officer is responsible for 
ensuring compliance. Furthermore, all aspects of the purchase must be 
in compliance with applicable laws and regulations relating to 
purchases of land or interests in land. This section also requires that 
unless a waiver valuation applies in accordance with 49 CFR 24.102(c), 
land or interests in land that will be acquired under the award must 
be: (a) Appraised in accordance with the Uniform Appraisal Standards 
for Federal Land Acquisitions (UASFLA or the ``Yellow Book''), which is 
incorporated by reference; (b) appraised by a real property appraiser 
licensed or certified by the State or States in which the property is 
located; and (c) that the appraisal report shall be reviewed by a 
qualified review appraiser that meets qualifications established by the 
DOI Appraisal and Valuation Services Office (AVSO). Requirements are 
also set forth in this section for foreign land acquisition. In Sec.  
1402.329, DOI sets forth direction that recipients must submit reports 
on the status of the real property for all financial assistance actions 
where real property, as defined in this final rule, is acquired under 
the Federal award as required by 2 CFR 200.329. If the interest in real 
property will be held for less than 15 years, reports must be submitted 
annually; otherwise the recipient must submit the first report within 
one year of the period of performance end date of the award and then, 
at a minimum every five years thereafter. The rule also sets forth who 
should receive the reports, the required format, the content, and 
timing for such reports.
    Section 1402.414 establishes DOI policy, procedures, and general 
decision-making criteria for deviations from negotiated indirect cost 
rates applicable to all Federal financial assistance programs awarded 
and administered within DOI. The regulatory text sets forth procedures 
and criteria for using an indirect cost rate other than the non-Federal 
entity's negotiated rate. The goal of this section is to provide 
consistent direction within the Department on negotiated indirect cost 
rate deviations to ensure compliance with the Uniform Guidance. 
Existing provisions of 2 CFR 200.414(c) require Federal agencies to 
accept federally negotiated indirect cost rates. Federal agencies may 
use a rate different from the negotiated rate for a class of awards or 
a single Federal award only when required by Federal statute or 
regulation, or when approved by a Federal awarding agency head or 
delegatee based upon documented justification described within 2 CFR 
200.414(c)(3).
    For all deviations to the Federal negotiated indirect cost rate, 
including statutory, regulatory, programmatic, and voluntary, the rule 
provides that the basis of direct costs against which the indirect cost 
rate is applied must be: The same base identified in the recipient's 
negotiated indirect cost rate agreement, if the recipient has a 
federally negotiated indirect cost rate agreement; or, the modified 
total direct

[[Page 45630]]

cost (MTDC) base, in cases where the recipient does not have a 
federally negotiated indirect cost rate agreement or, with prior 
approval of the awarding bureau or office, when the recipient's 
federally negotiated indirect cost rate agreement base is only a subset 
of the MTDC (such as salaries and wages) and the use of the MTDC still 
results in an overall reduction in the total indirect cost recovered.
    Section 1402.414(d), adopted as proposed, provides that in cases 
where the recipient does not have a federally negotiated indirect cost 
rate agreement, the Department will not use a modified rate based upon 
total direct cost or other base not identified in the federally 
negotiated indirect cost rate agreement or defined within 2 CFR 200.68.
    Section 1402.414(d) goes on to provide direction on indirect cost 
rate deviation required by statute or regulation, indirect cost rate 
reductions used as cost-share, programmatic indirect cost rate 
deviation approval process, voluntary indirect cost rate reduction, and 
unrecovered indirect costs.

III. Public Comments on the Proposed Rule and Responses to Comments

(a) Overview

    The Department sought public comment on the proposed rule, 
receiving 55 comments from over 200 individuals, non-profits, State and 
local governments, and Federal entities. All public comments received 
on the NPRM are available in a combined docket at docket number: DOI-
2018-0013. The Department decided to proceed to the final-rule stage 
after consideration of all the comments. The Department's responses to 
comments are detailed below.

(b) Responses to Public Comments on the Proposed Rule

(1) Comments Related to Executive Orders
(i) Executive Order 12866--Regulatory Planning and Review
    Comment: Four commenters expressed the opinion that the rule has 
significant changes for States and other grantee organizations 
resulting in significant new process requirements and burdens, and 
increased costs. Two commenters specifically commented that 
incorporating open science and land acquisition provisions into this 
regulation may violate Executive Order 12866.''
    Response: The Department received a review from OMB, and the rule 
was determined non-significant under E.O. 12866. The impact of this 
rule has been analyzed, and it does not have an annual effect on the 
economy of $100 million or more, adversely affect the economy in a 
material way, or create a serious inconsistency or otherwise interfere 
with another agency's actions. Accordingly, the impact of this rule 
does not rise to the level of significance under the E.O. The DOI has 
however made changes to the open science provisions of the proposed 
rule. DOI has made no changes to the land acquisition provisions of the 
proposed rule in response to these comments. The Uniform Act and its 
regulations at 49 CFR part 24 apply to Federal acquisitions as well as 
many State and local government acquisitions involving Federal funds 
(UASFLA 0.1). As such, the UASFLA standards are no different than the 
USDAP standards, they are merely tailored to meet the specific needs of 
the Government. Accordingly, the land provisions are not a significant 
change.
(ii) Executive Order 13132--Federalism
    Comment: Three commenters raised concern over the rule being 
contrary to established principles of federalism. Specifically, they 
commented that the provisions related to the Yellow-book requirement 
and data availability impeded full compliance with State privacy laws 
related to land ownership and requiring the disclosure of what the 
State determines is protected and sensitive information.
    Response: The Department does not agree that the rule is contrary 
to E.O. 13132 or the principles of federalism. Non-Federal entities 
participate in Federal assistance programs voluntarily; and when 
seeking Federal funds, they are required to meet Federal requirements 
attached to the receipt and use of such funds. Section 1.15 of the 
Yellow Book specifically addresses confidentiality and the appraiser's 
responsibility to follow the USPAP Ethics Rule as it relates to 
confidentiality and the appraiser/client relationship. State privacy 
requirements remain intact. An appraisal completed to either standard 
has the same confidentiality requirements. Furthermore, the requirement 
in this rule to use the Yellow Book standard for all appraisals is 
already the standard practice for Federal assistance programs, and is a 
requirement for all direct Federal land purchases. The DOI made no 
changes to the proposed rule in response to this comment.
(iii) Executive Order 13563--Improving Regulation and Regulatory Review
    Comment: Three commenters raised concern over the rule not 
promoting predictability, reducing uncertainty, or providing the least 
burdensome tools for achieving regulatory objectives with regard to: 
(1) Appraisal standards, (2) review appraiser standards, and (3) real 
property reporting requirements.
    Response: The rule clarifies the standard for real property 
appraisals, appraiser standards, and reporting requirements under 2 CFR 
1402.329. Specifically, there are two existing regulations (49 CFR 
24.101(d) and 24.103(a)) that relate to appraisals for real property, 
including real property under federally assisted programs. The DOI made 
no changes to the proposed rule in response to these comments.
(2) Comments Related to Data
(i) Definition of Data
    Comment: Two commenters raised concern over the definition of data 
in the rule. Specifically, the commenters felt that the definition in 
the rule is too broad, outside of the industry-standard definition of 
the term, and it includes data that takes years to develop and has a 
significant value to the non-Federal award recipient. The rule reserves 
the right for the DOI to determine whether to make such data that is 
produced with Federal funding publically available, which may cause 
economic injury and competitive harm to non-Federal recipients.
    Response: The Department made changes in response to these 
comments, to eliminate the definition of data from this regulation, and 
then to make minor conforming revisions to the text of Sec.  1402.315 
to clarify the Department's requirements related to methodology, 
factual inputs, models, analyses, technical information, reports, 
conclusions, and other scientific assessments, which are not included 
in the industry-standard definition of data. The change resolves the 
issue that the definition of ``data'' in the proposed rule was beyond 
the scope of the industry-standard definition of the term. The DOI did 
not make substantive changes, but rather clarifying changes regarding 
the Department's rights in relation to methodology, factual inputs, 
models, analyses, technical information, reports, conclusions, and 
other scientific assessments. The Department has a responsibility to 
ensure that the benefits derived from Federal financial assistance 
awards are available to the public. In order to ensure transparency and 
the greatest possible use of the fruits of Federal appropriations, the 
rule

[[Page 45631]]

reserves the right for the DOI to decide whether these types of outputs 
resulting from a Federal award shall be publicly released. The 
Department will make determinations regarding public release of data on 
a case-by-case basis, and may consider input from interested parties. 
The Department will not take any action in violation of statute, 
including, for example, public release of information that is protected 
under an exception to the Freedom of Information Act. However, the rule 
ensures that the DOI reserves the right to make that determination for 
all data, methodology, factual inputs, models, analyses, technical 
information, reports, conclusions, valuation products, and other 
scientific assessments produced under a federally-funded award.
(ii) Protected Use of Data
    Comment: Thirty-five commenters requested clarification on the 
specific requirements for protection and use of data under Sec.  
1402.315, Availability of Data. These commenters expressed concern that 
data collection might be burdensome as the FAIR does not describe what 
format the data will need to be available in, whether grantees will 
have to provide the raw data, and whether recipients will have to 
translate data for all requesting parties. Also, commenters raised 
questions about whether the grantees are legally allowed to share data 
with non-intended users; for how long after the award has closed that 
the recipient needs to make the data available for use; and whether the 
requirement applies to already-published data or raw un-scrubbed data. 
Lastly, one commenter wanted to ensure that this rule ``will not 
compromise threatened, endangered, or other species of concern by 
making certain information about geographic locations public''.
    Response: The DOI believes that these comments raise issues that 
are too specific and detailed to address in a rule. Issues related to 
formatting, procedures, and specific issues like endangered species 
protections are best addressed in each Notice of Funding Opportunity 
for each Federal financial assistance program. As such, individual 
financial assistance agreements will specify the format required for 
the data, and the government will make every effort to be as 
descriptive as practical in the initial Notice of Financial Assistance 
Opportunities. The DOI made changes to the definition of data in the 
final rule. DOI also indicated that it will make determinations 
regarding public release of data on a case-by-case basis, and may 
consider input from interested parties. The Department will not take 
any action in violation of a statute.
(3) Comments Related to Real Property
(i) Cost of Uniform Appraisal Standards for Federal Land Acquisition 
(UASFLA)
    Comment: Multiple commenters expressed concern with the rule's 
requirement that appraisals for land purchased under Federal assistance 
awards must be conducted using the UASFLA (Yellow Book) standard due to 
concern that appraisals conducted under this standard are more costly. 
One commenter indicated that they allocate an average of $7,500 for the 
appraisal, and various other commenters stated that they expected costs 
of appraisals to increase thirty percent to fifty percent based on 
conversations with appraisers in their area.
    Response: Title 49 CFR 24.103(a) allows agencies to require Yellow 
Book compliance, which is the appropriate appraisal standard for 
acquisition of property interests by the Federal Government. The DOI 
contracts hundreds of land appraisals each year in many different 
States that are completed under both The Uniform Standards of 
Professional Appraisal Practice (USPAP) and UASFLA standards. In the 
DOI's experience, there is no significant difference in the cost of a 
USPAP appraisal versus a UASFLA appraisal. Cost variability is most 
often a result of the specifics of the assignment rather than the 
applicable appraisal standard. The $7,500 appraisal figure in the 
comments is consistent with the pricing for DOI appraisals. Fees 
typically go up as the complexity increases and the period of 
performance for the appraisal shortens. Additionally, there is no 
discernable difference in the time taken for the appraisal, whether it 
is completed under USPAP or UASFLA standards. The average time of 
completion from the notice to proceed with the appraisal to the 
delivery of the appraisal to the review appraiser is around sixty-five 
days. The average time for appraisal review, including obtaining 
revisions from the appraiser if necessary, is around forty days. These 
averages are regardless of the appraisal standard applicable to the 
assignment is USPAP or UASFLA. The appraisal review days include the 
days that the appraiser is making necessary revisions to the appraisal 
report. This length varies depending on the quality of the appraisal 
report and the appraiser's schedule for revisions. In addition, the 
rule currently allows for waivers in accordance with 49 CFR 24.102(c) 
in instances where the total value of the land is so low that the cost 
of the appraisal is not justified. The DOI made no changes to the 
proposed rule in response to this comment.
(ii) Scarcity of UASFLA Appraisers
    Comment: Multiple commenters expressed concern about the perceived 
scarcity of UASFLA qualified appraisers.
    Response: Appraisers are licensed or certified by the States to 
perform appraisals, and the States establish limits to the levels of 
licensure in accordance with Title XI of the Financial Institution 
Reform and Recovery and Enforcement Act (FIRREA) of 1989, P.L. 101-73. 
Most State licensed or certified appraisers are able to complete UASFLA 
appraisals. There are no separate or additional licensure requirements 
for completing UASFLA appraisals; the issue is not lack of 
qualifications as stated in the comments, and scarcity can be addressed 
through outreach to the appraisal community to bring awareness of the 
opportunity for assignments. The DOI made no changes to the proposed 
rule in response to this comment.
(iii) Grandfathering
    Comment: A commenter raised a concern about the ability to 
grandfather appraisals that are already in progress or that have been 
completed but grants not awarded.
    Response: Appraisals that have already been initiated as of the 
date the final rule is published will be accepted as long as they meet 
the standards required by the grant program at the time the appraisal 
was initiated. However, all appraisals initiated after the date of the 
final rule will need to conform to UASFLA. The DOI made no changes to 
the proposed rule in response to this comment.
(iv) Perceived Burden of UASFLA Requirements
    Comment: Several commenters raised general concerns about the 
requirement that all appraisals for all land purchased under Federal 
assistance awards conform to the UASFLA appraisal standard.
    Response: All UASFLA appraisals must also conform to USPAP. USPAP 
is a broad general standard that applies to all types of appraisals 
conducted by State licensed or certified appraisers. This standard 
includes real property appraisal, mass appraisal, personal property 
appraisal, and business appraisal. The UASFLA/Yellow Book is a 
supplemental standard to USPAP, meaning that it builds on the 
foundation established by USPAP and is more

[[Page 45632]]

specific to direct acquisitions and federally assisted acquisitions 
under the Uniform Act. Much of the UASFLA was written to conform to the 
Uniform Act appraisal requirements found in 49 CFR 24.103. The Uniform 
Act and its regulations at 49 CFR part 24 apply to Federal acquisitions 
as well as many State and local government acquisitions involving 
Federal funds (UASFLA 0.1). As such, the UASFLA standards are no 
different than the USDAP standards, they are merely tailored to meet 
the specific needs of the Government.
    Comment: Other comments that were received requested that the DOI's 
Federal assistance programs, such as the Wildlife and Sport Fish 
Restoration Program (WSFR), have consistent appraisal requirements.
    Response: The Department agrees, and is specifying UASFLA as the 
applicable standard bringing all federally-assisted land acquisition 
programs under one consistent appraisal standard. For example, for the 
WSFR program, Yellow Book appraisals are required by some regions, but 
other regions, for that same program, apply USPAP only. Requiring 
UASFLA/Yellow Book compliance Department-wide will ensure these 
programs are consistent with other programs within the Department, 
including the National Park Service LWCF State Assistance Program, the 
American Battlefield Protection Program, and the FWS Cooperative 
Endangered Species Conservation Fund Grant Program.
    Comment: Some comments mentioned the USDA Forest Legacy grant 
program which also requires UASFLA appraisals.
    Response: The final rule seeks to create consistent requirements 
across the Department's grant programs by requiring appraisals be 
conducted in compliance with the UASFLA, which is the predominant 
standard for land or real property interest acquisition appraisals 
within the Department. Some external agencies may have different 
requirements for appraisal standards due to different missions and 
objectives; however, the UASFLA is generally applicable to land 
management agencies as well as other agencies that acquire or fund 
acquisition of land or other real property interests. Within the 
Department, the UASFLA is already the most common standard for land or 
real property interest acquisition and helps ensure compliance with 
UASFLA 0.1, parallel goals of ``uniformity, efficiency, and fair 
treatment of those affected by public projects . . .''
    Comment: One other area of comment was related to the inability of 
appraisers conducting UASFLA appraisals to consider ``conservation 
values'' or use comparable sales involving government agencies or 
nonprofit organizations.
    Response: For any appraisal that seeks to determine fair market 
value, the highest and best use of the property being appraised is what 
drives the value. Non-economic uses such as open space or watershed 
protection are not typically recognized as the highest and best use 
because there is no economic benefit returned to the property. The 
major appraisal organizations, as well as the Interagency Land 
Acquisition Conference (authors of the UASFLA), have concluded that 
where fair market value is the value sought, the value must be based on 
an economic highest and best use and that a non-economic highest and 
best use is not a proper basis for the opinion of market value.
    Comparable sales involving government entities or nonprofit 
organizations also must be considered with extra care and analysis 
because they can reflect non-market motivation or other influences such 
as tax benefits to the seller. The UASFLA does not prohibit the use of 
these sales, but these sales do require an additional level of scrutiny 
to ensure that they are arm's length transactions and accurately 
reflect open market situations.
(v) Qualifications and Training
    Comment: Thirty-two comments addressed the inclusion of 
qualifications for appraisers in the proposed rule.
    Response: The qualifications established by AVSO are included in a 
draft of Part 602, Chapter 1 of the Departmental Manual that is 
currently being updated by the Department. For fee appraisers preparing 
valuation products (including appraisals and appraisal reviews) for 
financial assistance programs within the Department, appraisers must 
hold an appraisal license in the State where the property appraised is 
located, commensurate with the type of property being appraised. This 
requirement allows an appraiser to conduct appraisals or appraisal 
reviews for financial assistance programs as long as they act within 
the property type and value limits of their level of license. Title XI 
of the FIRREA established these limits. The qualifications established 
by AVSO are consistent with this law. The UASFLA does not prohibit the 
use of comparable sales involving government entities or nonprofit 
organizations, but these sales do require an additional level of 
scrutiny to ensure that they are arm's length transactions and 
accurately reflect open market situations because they can reflect non-
market motivation or other influences such as tax benefits to the 
seller.
    Comment: Other comments were received that discussed appraisers 
being ``Yellow Book or UASFLA Certified'' or a specific certification 
required for appraisers or review appraisers.
    Response: In either case, there are no certifications specific to 
either UASFLA appraisals or appraisal review. Regarding UASFLA 
appraisals, any appraiser can perform UASFLA appraisals as long as they 
are competent to perform the assignment and the property type and value 
are within the limits of their license as established by FIRREA. 
Various appraisal organizations offer training in conducting UASFLA 
appraisals, and these courses are available online and in traditional 
classroom settings to facilitate appraisers becoming familiar with the 
standard.
    For appraisal review qualifications, there are specific review 
designations for appraisers offered by at least two professional 
appraisal organizations--the Appraisal Institute (AI-GRS) and the 
American Society of Farm Managers and Rural Appraisers (RPRA) that 
conform to the Departmental Manual, Part 602, Chapter 1, requirements 
requiring education and experience in appraisal review, a comprehensive 
exam, and a demonstration appraisal review report.
    Comment: Two comments were received that indicated that an 
appraisal review designation should be required to be considered 
``qualified'' for appraisals related to grant programs.
    Response: Since this is not required for appraisals used for direct 
acquisition by the United States, it is not realistic to require a 
higher level of qualification for appraisers conducting appraisals and 
appraisal reviews for financial assistance programs.
(vi) Requirements for Recipient Reporting on Real Property Purchases
    Comment: Forty-two commenters raised questions regarding the public 
land reporting requirements in Sec.  1402.329(d). Commenters stated 
that the reporting requirement is redundant and an unnecessary burden 
to the grantee, and that the SF-429A requires information that is above 
and beyond the intent of 2 CFR 200.329. Other commenters focused on 
current program reporting requirements, and how the requirements in 
this rule would impact those current requirements in terms of reporting 
deadlines, data, and forms.
    Response: The intent of the rule is to standardize the process for 
land requirements and data collected across all DOI Federal assistance 
programs. The requirements in this rule will be

[[Page 45633]]

adopted by all DOI programs, and will replace, not add to, existing 
requirements. Program specific requirements by commenters will be 
replaced with one standardized process. This reporting requirement in 
this rule does not expand the requirements in 2 CFR 200.329, but merely 
clarifies DOI's standards for the format and deadlines of the reporting 
that is already required by that section. This final rule requires 
using a Standard Form that has already been established as a Government 
standard, in order to conform with an existing format and to avoid the 
creation of a duplicative form. The DOI made no changes to the proposed 
rule in response to this comment.
(4) Comments Related to Definitions
(i) Employment
    Comment: One commenter requested that DOI revise the definition of 
employment in the rule, and suggested that the definition expands upon 
traditional definitions of the term under the Fair Labor Standards Act 
(FLSA) by including relationships such as ``contractor'' and 
``partner.''
    Response: This definition in the rule is intended to make clear 
that the types of personal services as described therein are also 
included in the definition of employment and should be reported as such 
in the grant application or progress report. The DOI made no changes to 
the proposed rule in response to this comment.
(ii) Non-Federal Entity
    Comment: The definition of non-Federal entity in Sec.  1402.6 is an 
identical definition provided in 2 CFR 200.69. We recommend this to be 
removed because there is no additional value or clarification provided 
here.
    Response: The definition in Sec.  1402.6 slightly revises the 
definition in 2 CFR 200.69 to also include for-profit entities in the 
definition of non-Federal entity. As explained in the proposed rule, we 
believe this is needed because 2 CFR part 200 leaves the Department 
discretion for for-profit entities. Accordingly, DOI made no changes to 
the proposed rule in response to this comment.
(iii) Real Property
    Comment: The proposed definition in Sec.  1402.7 needs further 
clarity on land and interests in land.
    Response: The DOI revised the definition of real property in the 
proposed rule in response to this comment. DOI clarified that real 
property interests were included in the definition of real property.
(5) Comments on Other Sections
(i) Section 1402.100 Purpose
    Comment: Three commenters raised concern over the stated purpose of 
the proposed rule. The background information states that ``the 
proposed rule represents an administrative simplification and is not 
intended to make any substantive changes to 2 CFR part 200 policies and 
procedures.'' However, the proposed rule implements appraisal standards 
(Sec.  1402.329) and specific reporting forms (SF-429) is well beyond 
what is required by 2 CFR part 200.
    Response: Title 2 CFR 200.329 states that in those instances where 
the Federal interest in real property attached is for a period of 15 
years or more, the Federal awarding agency at its option, may require 
the non-Federal entity to report at various multi-year frequencies 
(e.g., every two years or every three years, not to exceed a five-year 
reporting period; or a Federal awarding agency or pass-through entity 
may require annual reporting for the first three years of a Federal 
award and thereafter require reporting every five years). As explained 
in the proposed rule, we believe this section does not expand reporting 
requirements, but clarifies the specific approach that will be required 
for awards made by the DOI for interests held longer than 15 years. The 
DOI made no changes to the proposed rule in response to this comment.
(ii) Effective Date
    Comment: One commenter requested a clarification on the effective 
date of the final rule and whether it would apply retroactively to 
previously issued Federal awards.
    Response: The FAIR applies to all DOI new awards or award revisions 
made after the effective date of the final rule. The DOI made no 
changes to the proposed rule in response to this comment.
(iii) Applicability of Other Regulations and Policies
    Comment: Sixteen commenters submitted questions and comments 
regarding the FAIR's effect on terms and conditions for awards issued 
prior to the effective date of the rule and 2 CFR part 200, and whether 
the terms and conditions in DOI Federal assistance awards would be 
subject to the notice and comment process.
    Response: The FAIR supplements the terms and conditions in 2 CFR 
part 200 in areas of particular interest for the DOI and gives more 
detailed instructions on how to implement 2 CFR part 200 with regard to 
each section in this final rule. Program offices may impose additional 
programmatic and grants administration requirements via agency policy 
statements, Notice of Funding Opportunity announcements, and terms and 
conditions of award. The DOI will not apply this rule retroactively. It 
will only be applied to new awards or award revisions made after the 
effective date of the final rule. The DOI made no changes to the 
proposed rule in response to this comment.
(iv) Conflicts of Interest (Sec.  1402.112)
    Comment: Seven commenters expressed the desire for the regulatory 
language to be removed or revised to remove confusion and redundancy. 
Commenters stated that the requirement to disclose potential conflicts 
of interest, and any outstanding unresolved matters, has the potential 
for varying interpretations because subjectivity is involved. 
Commenters also distinguished between State and Federal requirements.
    Response: Section 1402.112 is critical to ensure that recipients of 
Federal assistance awards disclose any conflicts of interest that might 
impede their ability to serve the public purpose of the award. While 
DOI recognizes that conflict of interest provisions are inherently 
subjective, the language in this final rule supplements the language in 
2 CFR part 200, and provides some additional clarifications. Section 
1402.112 removed paragraph (b) to be consistent with 2 CFR 200.318(c). 
This amendment also clarifies that States and local governments are 
permitted to follow their own conflict of interest policies. Further, 
Sec.  1402.112, as proposed, provides Review Procedures, which are not 
included in 2 CFR part 200. As explained in the preamble of the 
proposed rule, the DOI believes that these sections are needed to 
ensure full transparency into any conflicts of interest that are held 
by potential award recipients.
(v) Mandatory Disclosure (Sec.  1402.113)
    Comment: Three commenters expressed the desire for clarity on 
standards that would apply in making a determination and disclosure of 
potential conflicts. There was concern that this section will impose a 
disproportionate reporting burden on States, as States have multiple 
grantors and deal with multiple Offices of Inspector Generals. Also, 
the proposed rule does not state at what point an issue is determined 
to be ``unresolved.'' Is it unresolved when it is questioned, or only 
if it is outstanding after the

[[Page 45634]]

corrective action plan, or sometime in between?
    Response: The DOI revised the language in this section to limit 
those ``unresolved'' items that are to be reported as those items that 
do not have an approved (by the awarding agency) corrective action plan 
in place and remain open.
(vi) Merit Review (Sec.  1402.204)
    Comment: Four commenters raised questions about the merit review 
section, including concern over how competition requirements are 
defined. Commenters were concerned over using the word ``maximum'' to 
describe the type of competition. Commenters expressed the view that 
the use of a subjective word like maximum lends itself to significant 
differences in standards based on region/State, or even individuals, 
implementing the funding opportunity and could result in unequal 
opportunities nationwide. There was also a comment raised that the 
programmatic investment guidance outlined by congressional mandates may 
not be consistent with the current DOI Government Performance and 
Results Act Strategic Plan as required in Sec.  1402.204.
    Response: The Department made changes to the proposed rule in 
response to this comment by removing the following language: ``It is 
also important for DOI bureaus and offices to create review systems for 
noncompetitively awarded discretionary . . .'' and the word 
``maximum.'' that originally appeared in the proposed rule at Sec.  
1402.204(a). DOI also revised Sec.  1402.204 to add ``unless otherwise 
required by statute'' with respect to the current DOI Government 
Performance and Results Act Strategic Plan to clarify DOI does not 
intent to violate congressional mandates.
(vii) Specific Award Conditions (Sec.  1402.207(b))
    Comment: One commenter requested clarification on paragraph (b) and 
the inclusion of all recipients. The commenter noted that most of this 
section is explicit in stating it applies for-profit entities, 
paragraphs (a) and (c). Paragraph (b) does not state for-profit 
entities explicitly, so does this mean this paragraph is for all 
recipients, regardless of whether it is for-profit or not?
    Response: Paragraph (b) applies to both nonprofit and for-profit 
recipients. The DOI believed it was clear that both the for-profit and 
non-profit entities were covered by this provision, but to be explicit, 
introductory text was added as follows: ``The following financial 
assistance award terms and conditions always apply to non-profit and 
domestic for-profit entities:''
(viii) Lobbying Disclosure and Certification
    Comment: One commenter suggested that the referenced section (Sec.  
1402.208) is duplicate language already proposed in Sec.  1402.112(d) 
and suggested removal.
    Response: The DOI made changes to the proposed rule in response to 
this comment by deleting Sec.  1402.208.
(ix) Indirect Cost Rates
    Comment: Four commenters raised concern over the approval process 
and documentation for indirect cost rates required in Sec.  1402.414. 
One commenter noted that the requirements stated in the rule have been 
in effect since 2014 and have been working well.
    Response: The approval of programmatic deviations to negotiated 
indirect cost rates is handled on a case-by-case review and is at the 
discretion of each bureau's grants program guidelines. The procedures 
outlined in this rule are consistent with 2 CFR part 200, and have been 
in place within DOI via policy guidance since 2014. Under this rule, a 
voluntary rate reduction should be confirmed in writing with the 
Financial Assistance Officer identified in the Notice of Funding 
Announcement. The voluntary rate reductions should be noted in the pre-
award proposal documents submitted for review at the time of the 
application. Federal agencies may use a rate different from the 
negotiated rate for a class of awards or a single Federal award only 
when required by Federal statute or regulation, or when approved by a 
Federal awarding agency head or delegate based upon documented 
justification described within 2 CFR 200.414(c)(3). Indirect cost rate 
agreements are negotiated within 6 months from the time a grantee 
submits a complete and acceptable proposal package. Title 2 CFR part 
200 allows grantees to develop and submit their indirect cost rate 
proposals 6 months after the end of their fiscal year. The DOI made no 
changes to the proposed rule in response to this comment.

IV. Conclusion

    DOI reviewed and considered the comments received, and determined 
to adopt this final rule with the changes described and minor editorial 
changes.

V. Required Determinations

1. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the OMB's Office of 
Information and Regulatory Affairs will review all significant rules. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not significant. Executive Order 13563 reaffirms the 
principles of E.O. 12866, calling for improvements in the nation's 
regulatory system to promote predictability, to reduce uncertainty, and 
to use the best, most innovative, and least burdensome tools for 
achieving regulatory objectives. E.O. 13563 directs agencies to 
consider regulatory approaches that reduce burdens and maintain 
flexibility and freedom of choice for the public, where these 
approaches are relevant, feasible, and consistent with regulatory 
objectives.

2. Regulatory Flexibility Act

    This final rule will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). The Department of the Interior generally 
does not award grants to small businesses. The vast majority of 
Interior grants are awarded to States, local governments, and not-for-
profit organizations.

3. Small Business Regulatory Enforcement Fairness Act

    The final rule is not a major rule under the Small Business 
Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more. The Department of the Interior generally does not award grants 
to small businesses.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. This 
rule establishes regulations for DOI financial assistance. DOI 
financial assistance is typically offered to States, local governments 
and not-for-profit institutions. It does not affect business 
relationships, employment, investment, productivity, innovations, or 
the ability of U.S.-based enterprises to compete internationally.

4. Unfunded Mandates Reform Act

    This rule:
    (a) Does not impose an unfunded mandate on State, local, or tribal 
governments or the private sector of more than $100 million per year.

[[Page 45635]]

    (b) Does not have a significant or unique effect on State, local, 
or tribal governments, or the private sector.
    (c) This regulation clarifies the applicability of two existing 
regulations--the regulatory requirement for reporting under 2 CFR 
200.329--Reporting on Real Property, and the regulatory language 
establishing use of the Uniform Appraisal Standards for Federal Land 
Acquisitions (UASFLA or ``Yellow Book'') standard under 49 CFR 24.103--
to financial assistance actions at the Department of the Interior. This 
regulation establishes a permitted standard for appraisals under 49 CFR 
24.103 and specifies the required timing increments of reports under 2 
CFR 200.329.
    A statement containing the information required by the Unfunded 
Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

5. Takings (E.O. 12630)

    Under the criteria in section 2 of E.O. 12630, this rule does not 
have significant takings implications. It does not impose any 
obligations on the public that would result in a taking. A takings 
implication assessment is not required.

6. Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. This is because it will not 
substantially and directly affect the relationship between the Federal 
and State governments. Accordingly, a federalism summary impact 
statement is not required.

7. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of E.O. 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) of this E.O. requiring that 
all regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) of this E.O. requiring 
that all regulations be written in clear language and contain clear 
legal standards.

8. Consultation With Indian Tribes (E. O. 13175)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian tribes through a 
commitment to consultation and recognition of their right to self-
governance and tribal sovereignty. DOI has evaluated this rule under 
the Department's consultation policy and under the criteria in E.O. 
13175 and have determined that it has no substantial direct effect on 
federally recognized Indian tribes and that consultation under the 
Department's tribal consultation policy is not required.

9. Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

    This regulation will require the use of the SF 429 to fulfill the 
requirement in 2 CFR 200.329. Each Bureau will submit a request for 
common form usage to the Office of Management and Budget for use of SF 
429--Real Property Status Report--Cover Page, SF 429A--Real Property 
Status Report--Attachment A--General Reporting, and SF 429B--Real 
Property Status Report--Attachment B--Request to Acquire, Improve, or 
Furnish.

10. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required. Pursuant to Department Manual 516 DM 2.3A(2), section 1.10 of 
516 DM 2, Appendix 1 excludes from documentation in an environmental 
assessment or impact statement ``policies, directives, regulations and 
guidelines of an administrative, financial, legal, technical or 
procedural nature; or the environmental effects of which are too broad, 
speculative or conjectural to lend themselves to meaningful analysis 
and will be subject to the NEPA process, either collectively or case-
by-case.''

11. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211; therefore, a Statement of Energy Effects is not 
required.

12. Plain Language

    DOI is required by section 1(b)(12) of E.O. 12866 and Section 
3(b)(1)(B) of E.O. 12988 and by the Presidential Memorandum of June 1, 
1998, to write all rules in plain language. This means that this rule:
    (a) Is logically organized;
    (b) Uses the active voice to address readers directly;
    (c) Uses common, everyday words and clear language rather than 
jargon;
    (d) Is divided into short sections and sentences; and
    (e) Uses lists and tables wherever possible.

List of Subjects in 2 CFR Part 1402

    Accounting, Administrative practice and procedure, Adult education, 
Aged, Agriculture, American Samoa, Bilingual education, Blind, Business 
and industry, Civil rights, Colleges and universities, Communications, 
Community development, Community facilities, Copyright, Credit, 
Cultural exchange programs, Educational facilities, Educational 
research, Education, Education of disadvantaged, Education of 
individuals with disabilities, Educational study programs, Electric 
power, Electric power rates, Electric utilities, Elementary and 
secondary education, Energy conservation, Equal educational 
opportunity, Federally affected areas, Government contracts, Grant 
programs, Grant programs--agriculture, Grant programs--business, Grant 
programs--communications, Grant programs--education, Grant programs--
energy, Grant programs--health, Grant programs--housing and community 
development, Grant programs--social programs, Grants administration, 
Guam, Home improvement, Homeless, Hospitals, Housing, Human research 
subjects, Incorporation by reference, Indians, Indians--education, 
Infants and children, Insurance, Intergovernmental relations, 
International organizations, Inventions and patents, Loan programs, 
Loan programs social programs, Loan programs--agriculture, Loan 
programs--business and industry, Loan programs--communications, Loan 
programs--energy, Loan programs--health, Loan programs--housing and 
community development, Manpower training programs, Migrant labor, 
Mortgage insurance, Nonprofit organizations, Northern Mariana Islands, 
Pacific Islands Trust Territories, Privacy, Renewable energy, Reporting 
and recordkeeping requirements, Rural areas, Scholarships and 
fellowships, School construction, Schools, Science and technology, 
Securities, Small businesses, State and local governments, Student aid, 
Teachers, Telecommunications, Telephone, Urban areas, Veterans, Virgin 
Islands, Vocational education, Vocational rehabilitation, Waste 
treatment and disposal, Water pollution control, Water resources, Water 
supply, Watersheds, Women.

    For the reasons set forth in the preamble, the Department of the 
Interior revises 2 CFR part 1402 to read as follows:

[[Page 45636]]

PART 1402--FINANCIAL ASSISTANCE INTERIOR REGULATION, SUPPLEMENTING 
THE UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT 
REQUIREMENTS FOR FEDERAL AWARDS

Subpart A--Definitions
Sec.
1402.1 Definitions.
1402.2 Employment.
1402.3 Financial Assistance Officer.
1402.4 Foreign entity.
1402.5 Non-Federal entity.
1402.6 Real property.
Subpart B--General Provisions
1402.100 Purpose.
1402.101 To whom does this part apply?
1402.102 Are there any exceptions to this part?
1402.103 What other policies or procedures must non-Federal entities 
follow?
1402.104-1402.111 [Reserved]
1402.112 What are the conflict of interest policies?
1402.113 What are the mandatory disclosure requirements?
1402.114-1402.203 [Reserved]
Subpart C--Pre-Federal Award Requirements and Contents of Federal 
Awards
1402.204 What are the merit review requirements for competitive 
awards?
1402.205 [Reserved]
1402.206 What are the FAIR requirements for domestic for-profit 
entities?
1402.207 What specific conditions apply?
1402.208-1402.299 [Reserved]
Subpart D--Post Federal Award Requirements
1402.300 What are the statutory and national policy requirements?
1402.301-1402.314 [Reserved]
1402.315 What are the requirements for the availability of data?
1402.316-1402.328 [Reserved]
1402.329 What are the requirements for land acquired under an award?
1402.330-1402.413 [Reserved]
1402.414 What are the negotiated indirect cost rate deviation 
policies?
1402.415-1402.999 [Reserved]

    Authority: 5 U.S.C. 301 and 2 CFR part 200.

Subpart A--Definitions


Sec.  1402.1  Definitions.

    The definitions in this subpart are for terms used in this part. 
For terms used in this part that are not defined, the definitions in 2 
CFR part 200 apply. Different definitions may be found in Federal 
statutes or regulations that apply more specifically to particular 
programs or activities.


Sec.  1402.2  Employment.

    Employment includes any form of non-Federal employment or business 
relationship involving the provision of personal services by the 
employee, whether to be undertaken at the same time as, or subsequent 
to Federal employment. It includes but is not limited to personal 
services as an officer, director, employee, agent, attorney, 
consultant, contractor, general partner, or trustee of the other 
organization.


Sec.  1402.3  Financial Assistance Officer.

    Financial Assistance Officer means a person with the authority to 
enter into, administer, and/or terminate financial assistance awards 
(including grants and cooperative agreements); and make related 
determinations and findings.


Sec.  1402.4  Foreign entity.

    Foreign entity means both ``foreign public entity'' and ``foreign 
organization,'' as defined in 2 CFR 200.46 and 200.47.


Sec.  1402.5  Non-Federal entity.

    Non-Federal entity means a State, local government, Indian tribe, 
institution of higher education (IHE), for-profit entity, or nonprofit 
organization that carries out a Federal award as a recipient or 
subrecipient.


Sec.  1402.6  Real property.

    Real property has the same meaning as set forth in 2 CFR 200.85, 
except that the definition in this section also applies to legal 
ownership interests in land such as easements.

Subpart B--General Provisions


Sec.  1402.100  Purpose.

    (a) The Uniform Administrative Requirements, Cost Principles, and 
Audit Requirements for Federal Awards set forth in 2 CFR part 200 apply 
to the Department of the Interior. This part adopts, as the Department 
of the Interior (DOI) policies and procedures, the Office of Management 
and Budget's (OMB) Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements set forth in 2 CFR part 200. The 
Uniform Guidance applies in full except as stated in this part.
    (b) This part establishes DOI financial assistance regulations that 
implement or supplement the OMB's Uniform Guidance. It is designed to 
ensure that financial assistance is administered in full compliance 
with applicable law, regulation, policy, and best practices to ensure 
the American people get the most value from the funds DOI awards on 
financial assistance. For supplemental guidance, DOI has adopted 
section numbering that corresponds to related OMB guidance in 2 CFR 
part 200.
    (c) This part extends 2 CFR part 200, subparts A through E, 
policies and procedures to foreign public entities and foreign 
organizations as allowed by 2 CFR 200.101, except as indicated 
throughout this part.


Sec.  1402.101  To whom does this part apply?

    (a) This part applies to all DOI grant-making activities and to any 
non-Federal entity that applies for, receives, operates, or expends 
funds from a DOI Federal award after October 29, 2019, unless otherwise 
authorized by Federal statute.
    (b) This part applies to foreign entity applicants and recipients, 
except where the DOI office or bureau determines that the application 
of this part would be inconsistent with the international obligations 
of the United States or the statutes or regulations of a foreign 
government (see Sec.  1402.102).
    (1) Foreign entities are subject to the definitions and 
requirements in 2 CFR part 200, subparts A through E, and as 
supplemented by this part. In addition to the general requirements in 2 
CFR part 200, foreign entities must follow the special considerations 
and requirements for different classes of recipients in subparts A 
through E as follows, unless otherwise instructed in this part:
    (i) Foreign public entities are to follow those for States, with 
the exception of the State payment procedures in 2 CFR 200.305(a). 
Foreign public entities must follow the payment procedures for non-
Federal entities other than States;
    (ii) Foreign nonprofit organizations are to follow those for 
nonprofits; and
    (iii) Foreign higher education institutions are to follow those for 
Institutions of Higher Education (IHEs).
    (2) [Reserved]


Sec.  1402.102  Are there any exceptions to this part?

    (a) Awards made in accordance with the Indian Self-Determination 
and Education Assistance Act (Pub. L. 93-638, 88 Stat. 2204), as 
amended, are governed by 25 CFR parts 900 and 1000, and by 2 CFR part 
200, subparts E and F.
    (b) Exceptions for individual foreign entities to the requirements 
in this part may be authorized by the Director, Office of Grants 
Management. Such exceptions must be made in accordance with written 
bureau or office policy and procedures.
    (1) Foreign entities must request any exception to a requirement 
established in this part in writing. Such requests must be submitted to 
the funding bureau or office by an authorized

[[Page 45637]]

official of the foreign entity, and must provide sufficient pertinent 
background information, including:
    (i) Identification of the requirement under this part that is 
inconsistent with an in-country statute or regulation to which the 
foreign entity is subject;
    (ii) A complete description of the in-country statute or 
regulation, including a description of how it prohibits or otherwise 
limits the foreign entity's ability to comply with the identified 
requirement under this part; and
    (iii) Identification of the entity's name, DOI award(s) affected, 
and point of contact for the request.
    (2) The Director, Office of Grants Management may approve 
exceptions for individual foreign entities to the requirements of this 
part only when it has been determined that the requirement to be waived 
is inconsistent with either the international obligations of the United 
States or the statutes or regulations of a foreign government. Bureaus 
and offices will communicate exception request decisions to the 
requesting entity in writing.
    (3) Submissions by public international organization submissions of 
any assurances, certifications or representations required for and 
related to a Federal award do not constitute a waiver of immunities 
provided under the International Organizations Immunities Act (22 
U.S.C. 288-288f).
    (4) Foreign entities are not subject to the following requirements 
in 2 CFR part 200:
    (i) Foreign entities may be subject to other applicable 
international or in-country alternatives to generally accepted 
accounting principles (GAAP), such as the International Financial 
Reporting Standards (IFRS). See 2 CFR 200.403, Factors affecting 
allowability of costs;
    (ii) 2 CFR 200.321, Contracting with small and minority businesses, 
women's business enterprises, and labor surplus area firms; and
    (iii) Section 6002 of the Solid Waste Disposal Act. See 2 CFR 
200.322, Procurement of recovered materials.


Sec.  1402.103  What other policies or procedures must non-Federal 
entities follow?

    Non-Federal entities must follow bureau or office policies and 
procedures as communicated in notices of funding opportunity (NOFOs) 
and award terms and conditions. In the event such policies or 
procedures conflict with 2 CFR part 200 or this part, 2 CFR part 200 or 
this part will supersede, unless otherwise authorized by Federal 
statute.


Sec.  Sec.  1402.104-1402.111  [Reserved]


Sec.  1402.112  What are the conflict of interest policies?

    This section shall apply to all non-Federal entities. NOFOs and 
financial assistance awards must include the full text of the conflict 
of interest provisions in paragraphs (a) through (e) of this section.
    (a) Applicability. (1) This section intends to ensure that non-
Federal entities and their employees take appropriate steps to avoid 
conflicts of interest in their responsibilities under or with respect 
to Federal financial assistance agreements.
    (2) In the procurement of supplies, equipment, construction, and 
services by recipients and by subrecipients, the conflict of interest 
provisions in 2 CFR 200.318 apply.
    (b) Notification. (1) Non-Federal entities, including applicants 
for financial assistance awards, must disclose in writing any conflict 
of interest to the DOI awarding agency or pass-through entity in 
accordance with 2 CFR 200.112.
    (2) Recipients must establish internal controls that include, at a 
minimum, procedures to identify, disclose, and mitigate or eliminate 
identified conflicts of interest. The recipient is responsible for 
notifying the Financial Assistance Officer in writing of any conflicts 
of interest that may arise during the life of the award, including 
those that have been reported by subrecipients.
    (c) Restrictions on lobbying. Non-Federal entities are strictly 
prohibited from using funds under a grant or cooperative agreement for 
lobbying activities and must provide the required certifications and 
disclosures pursuant to 43 CFR part 18 and 31 U.S.C. 1352.
    (d) Review procedures. The Financial Assistance Officer will 
examine each conflict of interest disclosure on the basis of its 
particular facts and the nature of the proposed grant or cooperative 
agreement, and will determine whether a significant potential conflict 
exists and, if it does, develop an appropriate means for resolving it.
    (e) Enforcement. Failure to resolve conflicts of interest in a 
manner that satisfies the government may be cause for termination of 
the award. Failure to make required disclosures may result in any of 
the remedies described in 2 CFR 200.338, Remedies for noncompliance, 
including suspension or debarment (see also 2 CFR part 180).


Sec.  1402.113   What are the mandatory disclosure requirements?

    In addition to the disclosures required under 2 CFR 200.112 and 
200.113, non-Federal entities, including applicants for all Federal 
awards, must disclose in writing any potential or actual conflict of 
interest to the DOI awarding agency or pass-through entity. Non-Federal 
entities and applicants must also disclose any outstanding unresolved 
matters with the Government Accountability Office or an Office of 
Inspector General when submitting a proposal and through the life of 
the award as needed. Unresolved items are those items that do not have 
an approved (by the awarding agency) corrective action plan in place 
and remain open.


Sec.  Sec.  1402.114-1402.203  [Reserved]

Subpart C--Pre-Federal Award Requirements and Contents of Federal 
Awards


Sec.  1402.204  What are the merit review requirements for competitive 
awards?

    The requirements in this section apply to competitive grants and 
cooperative agreements unless otherwise authorized by Federal statute. 
Merit review procedures must be described or incorporated by reference 
in NOFOs (see 2 CFR part 200, appendix I, and 2 CFR 200.203). Pre-award 
considerations for both discretionary competitive and noncompetitive 
awards shall take into account the alignment of the award's purpose, 
goals, and measurement with the current DOI Government Performance and 
Results Act Strategic Plan including, the mission statement, vision, 
values, goals, objectives, strategies, and performance metrics therein, 
unless otherwise prohibited by statute.
    (a) Competition in grant and cooperative agreement awards. 
Competition is expected in awarding discretionary funds, unless 
otherwise directed by Congress. When grants and cooperative agreements 
are awarded competitively, DOI requires that the competitive process be 
fair and impartial, that all applicants be evaluated only on the 
criteria stated in the announcement, and that no applicant receive an 
unfair competitive advantage. All competitive funding announcements, 
and all modifications/amendments to those announcements, must be posted 
on Grants.gov (www.grants.gov).
    (b) Independent objective evaluation of financial assistance 
applications and proposals. Bureaus and offices must conduct reviews of 
applications submitted in response to the announcement and for 
selecting applicants for award following established merit review 
procedures. Bureaus and offices must conduct

[[Page 45638]]

comprehensive, impartial, and objective review of applications based on 
the criteria contained in the announcement by individuals who have no 
conflicts of interest with respect to the competing proposal/
applications or applicants. Bureaus and offices must ensure reviewers 
are qualified, applications are scored on the basis of announced 
criteria, consideration is given to the level of applicant risk and 
past performance, applications are ranked, and funding determinations 
are made.
    (c) Evaluation and Selection Plan for notice of funding 
opportunities. Bureaus and offices must develop an Evaluation and 
Selection Plan in concert with the notice of funding opportunity to 
ensure consistency, and to outline and document the selection process. 
The Evaluation and Selection Plan should be finalized prior to the 
release of the notice of funding opportunity. An Evaluation and 
Selection Plan is comprised of five basic elements:
    (1) Merit review factors and sub-factors;
    (2) A rating system (e.g., adjectival, color coding, numerical, or 
ordinal);
    (3) Evaluation standards or descriptions that explain the basis for 
assignment of the various rating system grades/scores;
    (4) Program policy factors; and
    (5) The basis for selection.
    (d) Basic review standards. Bureaus and offices must initially 
screen applications/proposals to ensure that they meet the standards in 
paragraphs (e) through (g) of this section before they are subjected to 
a detailed evaluation utilizing a merit review process specified in 
paragraph (h) of this section. The review system should include three 
phases: Initial Screening, Threshold Screening, and a Merit Review 
Evaluation Screening. Bureaus and offices may remove an application 
from funding consideration if it does not pass the basic eligibility 
screening per paragraphs (e) through (g) of this section.
    (e) Completeness. Bureaus and offices may return applications/
proposals that are incomplete or otherwise fail to meet the 
requirements of the Grants.gov announcement to the applicant to be 
corrected, modified, or supplemented, or may reject the application/
proposal outright. Until the application/proposal meets the substantive 
requirements of the announcement and this part, it shall not be given 
detailed evaluation. Bureaus and offices may use discretion to 
determine the length of time for applicants to resolve application 
deficiencies.
    (f) Timeliness. Bureaus and offices must consider the timeliness of 
the application submission. Applications that are submitted beyond the 
announced deadline date must be removed from the review process.
    (g) Threshold Screening. Bureaus and offices are responsible for 
screening applications and proposals for the adequacy of the budget and 
compliance with statutory and other requirements. The SF-424 and budget 
information (SF-424A, SF-424C, or OMB-approved alternate budget data 
collection) must be reviewed according to Department of the Interior 
policy.
    (h) Merit Review Evaluation Screening. This is the final review 
stage where the technical merit of the application/proposal is 
reviewed. In the absence of a program rule or statutory requirement, 
program officials shall develop criteria that include all aspects of 
technical merit. Bureaus and offices shall develop criteria that are 
conceptually independent of each other, but all-encompassing when taken 
together. While criteria will vary, the basic criteria shall focus 
reviewers' attention on the project's underlying merit (i.e., 
significance, approach, and feasibility). The criteria shall focus not 
only on the technical details of the proposed project but also on the 
broader importance or potential impact of the project. The criteria 
shall be easily understood.
    (i) Risk assessments. Bureaus and offices must also consider risk 
thresholds during application/proposal review process. Elements to be 
considered may include organization; single audit submissions, past 
performance; availability of necessary resources, equipment, or 
facilities; financial strength and management capabilities; and 
procurement procedures; or procedures for selecting and monitoring 
subrecipients or sub-vendors, if applicable. For all non-Federal 
entities that receive an award, the Financial Assistance Officer must 
document the risk analysis.
    (j) Requirements for proposal evaluators. Upon receipt of a 
Memorandum of Appointment, each proposal evaluator and advisor must 
sign and return a Conflict of Interest Certificate to the Financial 
Assistance Officer. If an actual or potential conflict of interest 
exists, the appointee may not evaluate or provide advice on a potential 
applicant's proposal until the conflict has been resolved or mitigated. 
Further, each proposal evaluator or advisor must agree to comply with 
any notice or limitation placed on the application. Upon completion of 
the review, the proposal evaluator or advisor shall return or destroy 
all copies of the application and accompanying proposals (or abstracts) 
to DOI; and unless authorized by the Financial Assistance Officer or 
agency designee, the reviewer shall not contact the non-Federal entity 
concerning any aspect of the application.


Sec.  1402.205   [Reserved]


Sec.  1402.206  What are the FAIR requirements for domestic for-profit 
entities?

    (a) Requirements for domestic for-profit entities. (1) Section 
1402.207(a) contains standard award terms and conditions that always 
apply to for-profit entities and Sec.  1402.207(b) contains terms that 
apply to sub-awards or contracts with for-profit entities over the 
simplified acquisition threshold. Bureaus and offices must incorporate 
into awards to domestic for-profit organizations the award terms and 
conditions that always apply, either directly or by reference.
    (2) Bureaus and offices may apply the administrative guidelines in 
subparts A through D of 2 CFR part 200, the cost principles at 48 CFR 
part 31, subpart 31.2, and the procedures for negotiating indirect 
costs (detailed in Sec.  1402.414) to domestic for-profit entities.
    (3) Depending on the nature of a particular program, offices and 
bureaus may additionally develop program-specific administrative 
guidelines for domestic for-profits based on the requirements in 2 CFR 
part 200, subparts A through D, but may not apply more restrictive 
requirements than the requirements in 2 CFR part 200, subparts A 
through D, unless approved by OMB through a request to the Director, 
Office of Grants Management.
    (b) Requirements for award terms and conditions. Bureau and office 
award terms and conditions must be managed in accordance with the 
requirements in 2 CFR 200.210, Information contained in a Federal 
award.


Sec.  1402.207  What specific conditions apply?

    (a) The following financial assistance award terms and conditions 
always apply to domestic for-profit entities:
    (1) 2 CFR part 25, Universal Identifier and System for Award 
Management.
    (2) 2 CFR part 170, Reporting Subawards and Executive Compensation 
Information.
    (3) 2 CFR part 175, Award Term for Trafficking in Persons.
    (4) 2 CFR part 1400, government-wide debarment and suspension (non-
procurement).
    (5) 2 CFR part 1401, Requirements for Drug-Free Workplace 
(Financial Assistance).

[[Page 45639]]

    (6) 43 CFR part 18, New Restrictions on Lobbying. Submission of an 
application also represents the applicant's certification of the 
statements in 43 CFR part 18, appendix A, Certification Regarding 
Lobbying.
    (7) 41 U.S.C. 4712, Whistleblower Protection for Contractor and 
Grantee Employees. The requirement in this paragraph (a)(7) applies to 
all awards issued after July 1, 2013.
    (8) 41 U.S.C. 6306, Prohibition on Members of Congress Making 
Contracts with the Federal Government. No member of or delegate to the 
United States Congress or Resident Commissioner shall be admitted to 
any share or part of this award, or to any benefit that may arise 
therefrom; this paragraph (a)(8) shall not be construed to extend to an 
award made to a corporation for the public's general benefit.
    (9) Executive Order 13513, Federal Leadership on Reducing Text 
Messaging while Driving. Recipients are encouraged to adopt and enforce 
policies that ban text messaging while driving, including conducting 
initiatives of the type described in section 3(a) of the Executive 
Order.
    (b) The following financial assistance award terms and conditions 
always apply to non-profit and domestic for-profit entities. The 
recipient shall insert the following clause in all subawards and 
contracts related to the prime award that are over the simplified 
acquisition threshold, as defined in the Federal Acquisition 
Regulation:

    All awards and related subawards and contracts over the 
Simplified Acquisition Threshold, and all employees working on 
applicable awards and related subawards and contracts, are subject 
to the whistleblower rights and remedies in accordance with the 
pilot program on award recipient employee whistleblower protections 
established at 41 U.S.C. 4712 by section 828 of the National Defense 
Authorization Act for Fiscal Year 2013 (Pub. L. 112-239).
    Recipients, their subrecipients and contractors that are awarded 
contracts over the Simplified Acquisition Threshold related to an 
applicable award, shall inform their employees, in writing, in the 
predominant language of the workforce, of the employee whistleblower 
rights and protections under 41 U.S.C. 4712.

    (c) The following award terms and conditions apply to for-profit 
recipients as specified in 2 CFR 200.101:
    (1) Administrative requirements: 2 CFR part 200, subparts A through 
D.
    (2) Cost principles: 48 CFR part 31, subpart 31.2, Contracts with 
Commercial Organizations.
    (3) Indirect cost rate negotiations. For information on indirect 
cost rate negotiations, contact the Interior Business Center (IBC) 
Indirect Cost Services Division by telephone at (916) 566-7111 or by 
email at [email protected]. Visit the IBC Indirect Cost Services Division 
website at https://www.doi.gov/ibc/services/Indirect_Cost_Services/index.cfm for more information.


Sec.  Sec.  1402.208-1402.399  [Reserved]

Subpart D--Post Federal Award Requirements


Sec.  1402.300  What are the statutory and national policy 
requirements?

    (a) DOI bureaus and offices will communicate to the non-Federal 
entity all relevant public policy requirements, including those in 
general appropriations provisions, and incorporate them either directly 
or by reference in the terms and conditions of the Federal award.
    (b) The non-Federal entity is responsible for complying with all 
requirements of the Federal award. For all Federal awards, this 
includes the provisions of Federal Funding Accountability and 
Transparency Act (FFATA), which includes requirements on executive 
compensation, and also requirements implementing the FFATA for the non-
Federal entity at 2 CFR part 25, financial assistance use of universal 
identifier and system for award management, and 2 CFR part 170, 
Reporting Subaward and Executive Compensation Information. See also 
statutory requirements for whistleblower protections at 10 U.S.C. 2409, 
41 U.S.C. 4712, and 10 U.S.C. 2324, 41 U.S.C. 4304 and 4310.
    (c) Recipients conducting work outside the United States are 
responsible for coordinating with appropriate United States and foreign 
government authorities as necessary to make sure all required licenses, 
permits, or approvals are obtained before undertaking project 
activities. DOI does not assume responsibility for recipient compliance 
with the laws, regulations, policies, or procedures of the foreign 
country in which the work is conducted.
    (d) As required in 54 U.S.C. 307101, World Heritage Convention, 
prior to the approval of any undertaking outside the United States that 
may directly and adversely affect a property that is on the World 
Heritage List or on the applicable country's equivalent of the National 
Register of Historic Places, the DOI bureau or office having direct or 
indirect jurisdiction over the undertaking shall take into account the 
effect of the undertaking on the property for purposes of avoiding or 
mitigating any adverse effect.
    (e) Foreign entities are responsible for complying with all 
requirements of the Federal award. For awards to foreign entities, this 
includes:
    (1) 2 CFR part 25, Universal Identifier and System for Award 
Management, unless the entity meets one or more qualifying conditions 
and is exempted by the awarding bureau or office as provided for in 2 
CFR part 25;
    (2) 2 CFR part 170, Reporting Subaward and Executive Compensation 
Information;
    (3) 2 CFR part 175, Award Term for Trafficking in Persons. This 
term is required in awards to foreign private entities. The term is 
also required in awards to foreign public entities, if funding could be 
provided under the award to a foreign private entity as a subrecipient;
    (4) 2 CFR part 1400, Nonprocurement Debarment and Suspension. 
Awards to foreign organizations are covered transactions under the DOI 
nonprocurement debarment and suspension program. Awards to foreign 
public entities are not covered transactions;
    (5) 43 CFR part 18, New Restrictions on Lobbying. Foreign entities 
shall file the 43 CFR part 18, appendix A, certification, and a 
disclosure form, if required, with each application for Federal 
assistance. See also 31 U.S.C. 1352, Limitation on use of appropriated 
funds to influence certain Federal contracting and financial 
transactions; and
    (6) Public Law 113-235 (128 Stat. 2391, Dec. 16, 2014). Federal 
award recipients are prohibited from requiring employees or contractors 
seeking to report fraud, waste, or abuse to sign internal 
confidentiality agreements or statements prohibiting or otherwise 
restricting such employees or contractors from lawfully reporting such 
waste, fraud, or abuse to a designated investigative or law enforcement 
representative of a Federal department or agency authorized to receive 
such information.


Sec. Sec.  1402.301-1402.314  [Reserved]


Sec.  1402.315   What are the requirements for availability of data?

    (a) All data, methodology, factual inputs, models, analyses, 
technical information, reports, conclusions, valuation products or 
other scientific assessments in any medium or form, including textual, 
numerical, graphic, cartographic, narrative, or audiovisual, resulting 
from a financial assistance agreement is available for use by the 
Department of the Interior, including being available in a manner that 
is sufficient for independent verification.

[[Page 45640]]

    (b) The Federal Government has the right to:
    (1) Obtain, reproduce, publish, or otherwise use the data, 
methodology, factual inputs, models, analyses, technical information, 
reports, conclusions, or other scientific assessments, produced under a 
Federal award; and
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data, methodology, factual inputs, models, analyses, technical 
information, reports, conclusions, or other scientific assessments, for 
Federal purposes, including to allow for meaningful third-party 
evaluation.
    (c) Bureaus and offices of the Department of the Interior must 
include the language in paragraphs (a) and (b) of this section in full 
text in all NOFOs and financial assistance agreements.


Sec. Sec.  1402.316-1402.328  [Reserved]


Sec.  1402.329  What are the requirements for land acquired under an 
award?

    (a) Approval prior to land purchases. Bureaus and offices must 
ensure compliance with the prior written approval requirements for land 
acquisition in 2 CFR 200.439. Whenever a recipient is seeking DOI's 
approval to use award funds to purchase an interest in real property, 
the OMB-approved governmentwide data elements for collection of real 
property reporting information, as of October 29, 2019, SF-429-B, 
Request to Acquire, Improve, or Furnish, or approved alternate 
standardized data collection, must be submitted to the bureau or 
office. The Financial Assistance Officer is responsible for ensuring 
that this requirement is met. All aspects of the purchase must be in 
compliance with applicable laws and regulations relating to purchases 
of land or interests in land.
    (b) Appraisal requirements for land purchases. (1) Unless a waiver 
valuation applies in accordance with 49 CFR 24.102(c), land or 
interests in land that will be acquired under the award must be 
appraised in accordance with the Uniform Appraisal Standards for 
Federal Land Acquisitions, (UASFLA or the ``Yellow Book''), developed 
and promulgated by the Interagency Land Acquisition Conference, 1155 
15th Street NW, Suite 1111, Washington, DC 20005, by a real property 
appraiser licensed or certified by the State or States in which the 
property is located. The appraisal report shall be reviewed by a 
qualified review appraiser that meets qualifications established by the 
DOI Appraisal and Valuation Services Office (AVSO), which is 
responsible for appraisal and valuation services and policy across the 
Department. Bureaus and offices shall ensure that funds are not 
disbursed for purchases of land or interests in land without an 
appraisal accompanied by a written appraisal review report that 
complies with standards approved by AVSO. Where appraisals are required 
to support federally assisted land acquisitions, AVSO has oversight 
responsibilities for these appraisals, including those purchased 
through financial assistance actions in the various grant programs 
within the Department. AVSO will coordinate with grant programs to 
conduct periodic internal control review of appraisal and appraisal 
review reports prepared in conjunction with grant applications for land 
acquisition.
    (2) The Director of the Federal Register approves the material 
referenced in this section for incorporation by reference into this 
section in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may 
inspect a copy at the Appraisal and Valuation Services Office within 
the Department of the Interior located at 1849 C St. NW, Washington, DC 
20240, (202) 208-3466, or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, email [email protected] or go to 
www.archives.gov/federal-register/cfr/ibr-locations.html.
    (i) Interagency Land Acquisition Conference, 1155 15th Street NW, 
Suite 1111, Washington, DC 20005.
    (A) Uniform Appraisal Standards for Federal Land Acquisitions, 
Sixth Edition, 2016.
    (B) You may obtain a print copy or interactive electronic version 
from The Appraisal Foundation at https://www.appraisalfoundation.org/iMIS/itemDetail?iProductCode=351&Category=PUB or a read-only version 
from the U.S. Department of Justice at https://www.justice.gov/file/408306/download.
    (ii) [Reserved]
    (c) Foreign land acquisition. Land to be acquired under an award 
that is located outside the United States must be appraised by an 
independent real property appraiser licensed or certified in the 
country in which the property is located in accordance with any in-
country appraisal standards, if they exist, or with International 
Valuation Standards, when such appraisals are available and financially 
feasible. Otherwise, the non-Federal entity must use the most widely 
accepted business practice for property valuation in the country where 
the property is located and provide to the awarding DOI bureau or 
office a detailed explanation of the methodology used to determine 
value.
    (d) Requirements for recipient reporting on real property 
purchases. (1) For all financial assistance actions where real property 
is acquired under the Federal award, the recipient must submit reports 
on the status of the real property. Bureaus and offices must ensure 
recipients receive written notification of those reporting 
requirements, including reporting frequency/schedule, report content 
requirements, and submission instructions, at the time of award.
    (2) If the interest in the land will be held for less than 15 
years, reports must be submitted annually. If the interest in the land 
will be held for 15 years or more, then the recipient must submit the 
first report within one year of the period of performance end date of 
the award and then, at a minimum, every five years thereafter.
    (3) The reports must be submitted to the Financial Assistance 
Officer within the period of performance of the award. After the end of 
the period of performance, reports must be submitted to a designated 
individual. Each bureau must have a process in place to designate 
specific individuals to receive, and review and accept the report.
    (4) Recipients must use the OMB-approved governmentwide data 
elements for collection of real property reporting information, as of 
October 29, 2019, the Real Property Status Report Standard Form (SF) 
429-A, General Reporting, to report status of land or interests in land 
under Federal financial assistance awards. Bureaus or offices may 
request to use an equivalent reporting format. The Director, Office of 
Grants Management must approve alternate equivalent formats.
    (5) Reports must include, at a minimum, sufficient information to 
demonstrate that all conditions imposed on the land use are being met, 
and a signed certification to that fact by the recipient of the 
financial assistance award.
    (6) The Financial Assistance Officer must indicate the reporting 
schedule, including due dates, in the award document. The schedule must 
conform with the frequency required in paragraph (d)(2) of this 
section. For awards issued prior to October 29, 2019, the recipient 
must contact the program to establish due dates for reports going 
forward. If there is already a reporting schedule in place, then the 
recipient and the program shall ensure that the schedule is updated to 
conform with this part prior to the due date of the next scheduled 
report.

[[Page 45641]]

Sec. Sec.  1402.330-1402.413  [Reserved]


Sec.  1402.414  What are the negotiated indirect cost rate deviation 
policies?

    (a) This section establishes DOI policies, procedures, and decision 
making criteria for using an indirect cost rate that differs from the 
non-Federal entity's negotiated rate or approved rate for DOI awards. 
These are established in accordance with 2 CFR 200.414(c)(3) or (f).
    (b) DOI accepts indirect cost rates that have been reduced or 
removed voluntarily by the proposed recipient of the award, on an 
award-specific basis.
    (c) For all deviations to the Federal negotiated indirect cost 
rate, including statutory, regulatory, programmatic, and voluntary, the 
basis of direct costs against which the indirect cost rate is applied 
must be:
    (1) The same base identified in the recipient's negotiated indirect 
cost rate agreement, if the recipient has a federally negotiated 
indirect cost rate agreement; or
    (2) The Modified Total Direct Cost (MTDC) base, in cases where the 
recipient does not have a federally negotiated indirect cost rate 
agreement or, with prior approval of the awarding bureau or office, 
when the recipient's federally negotiated indirect cost rate agreement 
base is only a subset of the MTDC (such as salaries and wages) and the 
use of the MTDC still results in an overall reduction in the total 
indirect cost recovered. MTDC is the base defined by 2 CFR 200.68, 
Modified Total Direct Cost (MTDC).
    (d) In cases where the recipient does not have a federally 
negotiated indirect cost rate agreement, DOI will not use a modified 
rate based upon total direct cost or other base not identified in the 
federally negotiated indirect cost rate agreement or defined within 2 
CFR 200.68.
    (1) Indirect cost rate deviation required by statute or regulation. 
In accordance with 2 CFR 200.414(c)(1), a Federal agency must use a 
rate other than the Federal negotiated rate where required by Federal 
statute or regulation. For such instances within DOI, the official 
award file must document the specific statute or regulation that 
required the deviation.
    (2) Indirect cost rate reductions used as cost-share. Instances 
where the recipient elects to use a rate lower than the federally 
negotiated indirect cost rate, and uses the balance of the unrecovered 
indirect costs to meet a cost-share or matching requirement required by 
the program and/or statute, are not considered a deviation from 2 CFR 
200.414(c), as the federally negotiated indirect cost rate is being 
applied under the agreement in order to meet the terms and conditions 
of the award.
    (3) Programmatic indirect cost rate deviation approval process. 
Bureaus and offices with DOI approved deviations in place prior to 
October 29, 2019 are not required to resubmit those for reconsideration 
following the procedures in this paragraph (d)(3). The following 
requirements apply for review, approval, and posting of programmatic 
indirect cost rate waivers:
    (i) Program qualifications. Programs that have instituted a 
program-wide requirement and governance process for deviations from 
federally negotiated indirect cost rates may qualify for a programmatic 
deviation approval.
    (ii) Deviation requests. Deviation requests must be submitted by 
the responsible senior program manager to the DOI Office of Grants 
Management. The request for deviation approval must include a 
description of the program, and the governance process for negotiating 
and/or communicating to recipients the indirect cost rate requirements 
under the program. The program must make its governance documentation, 
rate deviations, and other program information publicly available.
    (iii) Approvals. Programmatic deviations must be approved, in 
writing, by the Director, Office of Grants Management. Approved 
deviations will be made publicly available.
    (4) Voluntary indirect cost rate reduction. On any single award, an 
applicant and/or proposed recipient may elect to reduce or eliminate 
the indirect cost rate applied to costs under that award. The election 
must be voluntary and cannot be required by the awarding official, 
NOFO, program, or other non-statutory or non-regulatory requirements. 
For these award-specific and voluntary reductions, DOI can accept the 
lower rate provided the notice of award clearly documents the 
recipient's voluntary election. Once DOI has accepted the lower rate, 
that rate will apply for the duration of the award.
    (5) Unrecovered indirect costs. In accordance with 2 CFR 200.405, 
indirect costs not recovered due to deviations to the federally 
negotiated rate are not allowable for recovery via any other means.


Sec. Sec.  1402.415-1402.499  [Reserved]

Scott J. Cameron,
Principal Deputy Assistant Secretary for Policy Management and Budget.
[FR Doc. 2019-18650 Filed 8-29-19; 8:45 am]
BILLING CODE 4334-63-P