Financial Assistance Regulations-Deviation Authority, 32977-32980 [2020-10577]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 85, Number 105 (Monday, June 1, 2020)]
[Rules and Regulations]
[Pages 32977-32980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10577]



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Rules and Regulations
                                                Federal Register
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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. 

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Federal Register / Vol. 85, No. 105 / Monday, June 1, 2020 / Rules 
and Regulations

[[Page 32977]]



DEPARTMENT OF ENERGY

2 CFR Part 910

RIN 1991-AC15


Financial Assistance Regulations--Deviation Authority

AGENCY: Office of Acquisition Management, Department of Energy.

ACTION: Interim final rule.

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SUMMARY: The Department of Energy (DOE) publishes this interim final 
rule to amend DOE's Financial Assistance Regulations to authorize 
deviations, when necessary to achieve program objectives; necessary to 
conserve public funds; otherwise essential to the public interest; or 
necessary to achieve equity.

DATES: 
    Effective date: This rulemaking is effective as of June 1, 2020.
    Comment date: Written comments must be received on or before close 
of business July 31, 2020.

ADDRESSES: You may submit comments, identified by ``DOE Financial 
Assistance Regulations--Deviation Authority and RIN 1991-AC15,'' by any 
of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email to: [email protected]. Include Financial 
Assistance Regulations--Deviation Authority and RIN 1991-AC15 in the 
subject line of the message.

FOR FURTHER INFORMATION CONTACT: Mr. John Harris, U.S. Department of 
Energy, Office of Acquisition Management, at (202) 287-1471 or by email 
at [email protected].

SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
III. Procedural Requirements
    A. Review Under Executive Orders 12866 and 13563
    B. Review Under Executive Orders 13771 and 13777
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 12988
    G. Review Under Executive Order 13132
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under the Treasury and General Government 
Appropriations Act, 1999
    J. Review Under Executive Order 13211
    K. Review Under the Treasury and General Government 
Appropriations Act, 2001
    L. Congressional Notification
    M. The Administrative Procedure Act
    N. Approval by the Office of the Secretary of Energy

I. Background

    The purpose of this interim final rule is to amend DOE's Financial 
Assistance Regulations at 2 CFR part 910, to add deviation authority to 
provide the Director for the Office of Acquisition Management, for DOE 
actions, and the Deputy Associate Administrator for the Office of 
Acquisition and Project Management for the National Nuclear Security 
Administration (NNSA), for NNSA actions, or designee the authority to 
authorize deviations, when (1) necessary to achieve program objectives; 
(2) necessary to conserve public funds; (3) otherwise essential to the 
public interest; or (4) necessary to achieve equity. This interim final 
rule will reinstate deviation authority in 2 CFR part 910 to give DOE 
the authority to deviate from its financial assistance regulations. 
This deviation authority was originally in 10 CFR 600.4 but was not 
carried over in 2 CFR part 910 when DOE amended its Financial 
Assistance Regulations by adopting the Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements for Federal 
Awards as provided in OMB Guidance in 2 CFR part 200. 79 FR 75867, 
76024 (Dec. 19, 2014). In addition to adopting these requirements in 
its regulations, DOE amended its regulations to supplement the OMB 
Guidance. DOE did not, however, include in its supplementary amendments 
authority for the Department to deviate or approve exceptions to its 
regulations in 2 CFR part 910.
    Previous to the adoption and addition of the regulations above, DOE 
had the authority to deviate from its financial assistance regulations. 
See 10 CFR 600.4(c)(2)(i) and (ii).

II. Section-by-Section Analysis

    DOE proposes to amend Chapter 9 of Title 2 of the Code of Federal 
Regulations as set forth below:
    Subpart B is amended to add Sec.  910.133 to part 910, adding 
deviation authority to provide the Director for the Office of 
Acquisition Management, for DOE actions, and the Deputy Associate 
Administrator for the Office of Acquisition and Project Management for 
NNSA, for NNSA actions, or designee the authority to authorize 
deviations, when (1) necessary to achieve program objectives; (2) 
necessary to conserve public funds; (3) otherwise essential to the 
public interest; or (4) necessary to achieve equity. This deviation 
authority was originally in 10 CFR 600.4 but was not carried over in 2 
CFR part 910.
    In drafting the rule, DOE is reinstating deviation authority that 
was originally in 10 CFR 600.4 but was not carried over in 2 CFR part 
910 to give DOE/NNSA authority to approve a deviation when the 
conditions above have been met and as authorized by the designated 
officials. Deviation authority is different than the exemption 
authority set forth at 2 CFR 200.102 because it covers only agency-
specific regulations.

III. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

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

B. Review Under Executive Orders 13771 and 13777

    On January 30, 2017, the President issued Executive Order 13771, 
``Reducing Regulation and Controlling Regulatory Costs.'' That order 
stated that the policy of the executive branch is to be prudent and 
financially responsible in the expenditure of funds, from both public 
and private sources. The order stated that it is essential to manage 
the costs associated with the governmental imposition of private 
expenditures required to comply with Federal regulations.

[[Page 32978]]

    Additionally, on February 24, 2017, the President issued Executive 
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The order 
required the head of each agency to designate an agency official as its 
Regulatory Reform Officer (RRO). Each RRO oversees the implementation 
of regulatory reform initiatives and policies to ensure that agencies 
effectively carry out regulatory reforms, consistent with applicable 
law. Further, E.O. 13777 requires the establishment of a regulatory 
task force at each agency. The regulatory task force is required to 
make recommendations to the agency head regarding the repeal, 
replacement, or modification of existing regulations, consistent with 
applicable law. At a minimum, each regulatory reform task force must 
attempt to identify regulations that:
    (i) Eliminate jobs, or inhibit job creation;
    (ii) Are outdated, unnecessary, or ineffective;
    (iii) Impose costs that exceed benefits;
    (iv) Create a serious inconsistency or otherwise interfere with 
regulatory reform initiatives and policies;
    (v) Are inconsistent with the requirements of the Information 
Quality Act, or the guidance issued pursuant to that Act, particularly 
those regulations that rely in whole or in part on data, information, 
or methods that are not publicly available or that are insufficiently 
transparent to meet the standard for reproducibility; or
    (vi) Derive from or implement Executive orders or other 
Presidential directives that have been subsequently rescinded or 
substantially modified.
    DOE concludes that this interim final rule is consistent with the 
directives set forth in these Executive orders. This interim final rule 
reinstates DOE's authority under 2 CFR part 910 to deviate from its 
financial assistance regulations under specified circumstances as was 
originally provided under 10 CFR 600.4.

C. Review Under Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. Because a 
notice of proposed rulemaking is not required for this action pursuant 
to 5 U.S.C. 553, or any other law, no regulatory flexibility analysis 
has been prepared for this interim final rule.

D. Review Under the Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Ch. 3506; 5 CFR part 1320 appendix A.1) (PRA), DOE reviewed this 
interim final rule and determined that there are no new collections of 
information contained therein. DOE's associated information collection 
has been approved under OMB Control No. 1910-4100.

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this interim final rule 
falls into a class of actions that would not individually or 
cumulatively have a significant impact on the human environment, as 
determined by DOE's regulations implementing the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA). Specifically, DOE 
has determined that this interim final rule is covered under the 
categorical exclusion found in DOE's NEPA regulations at paragraphs A5 
and A6 of Appendix A to Subpart D, 10 CFR part 1021. Categorical 
exclusion A5 applies to a rulemaking that amends an existing rule or 
regulation and that does not change the environmental effect of the 
rule or regulation being amended. Categorical exclusion A6 applies to 
rulemakings that are strictly procedural. Accordingly, neither an 
environmental assessment nor an environmental impact statement is 
required.

F. Review Under Executive Order 12988

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

G. Review Under Executive Order 13132

    Executive Order 13132, (64 FR 43255, August 4, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. The Executive Order requires agencies to 
have an accountability process to ensure meaningful and timely input by 
state and local officials in the development of regulatory policies 
that have federalism implications.
    On March 14, 2000, DOE published a statement of policy describing 
the intergovernmental consultation process it will follow in the 
development of such regulations (65 FR 13735). DOE has examined this 
interim final rule and has determined that it does not preempt State 
law and does not have a substantial direct effect on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. No further action is required by Executive Order 13132.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). 
For a regulatory action likely to result in a rule that may cause the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year 
(adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits,

[[Page 32979]]

and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The 
UMRA also requires a Federal agency to develop an effective process to 
permit timely input by elected officers of State, local, and Tribal 
governments on a ``significant intergovernmental mandate,'' and 
requires an agency plan for giving notice and opportunity for timely 
input to potentially affected small governments before establishing any 
requirements that might significantly or uniquely affect them. On March 
18, 1997, DOE published a statement of policy on its process for 
intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy 
statement is also available at https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf. UMRA sections 202 and 205 do not apply to 
this action because they apply only to rules for which a general notice 
of proposed rulemaking is published. Nevertheless, DOE has determined 
that this interim final rule does not contain a Federal 
intergovernmental mandate, nor is it expected to require expenditures 
of $100 million or more in any one year by the private sector.

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

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

J. Review Under Executive Order 13211.

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

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

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

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this interim final rule prior to its effective date. 
The report will state that it has been determined that this interim 
final rule is not a ``major rule'' as defined by 5 U.S.C. 801(2).

M. The Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b), the Administrative Procedure 
Act, DOE generally publishes a rule in a proposed form and solicits 
public comment on it before issuing the rule in final. This rulemaking, 
as a matter relating to grants, is exempt from the requirement to 
publish a notice of proposed rulemaking under 5 U.S.C. 553(a)(2).
    DOE, however, is publishing this rule as an interim final rule and 
allowing for public comments sixty (60) days after date of publication 
in the Federal Register.

N. Approval by the Office of the Secretary of Energy

    Issuance of this interim final rule has been approved by the Office 
of the Secretary of Energy.

List of Subjects in 2 CFR Part 910

    Accounting, Administrative practice and procedure, Grant programs, 
Reporting and recordkeeping requirements.

Signing Authority

    This document of the Department of Energy was signed on May 4, 
2020, by S. Keith Hamilton, Deputy Associate Administrator for 
Acquisition and Project Management and Senior Procurement Executive, 
National Nuclear Security Administration, pursuant to delegated 
authority from the Administrator, National Nuclear Security 
Administration, and John R. Bashista, Director, Office of Acquisition 
Management and Senior Procurement Executive, Department of Energy, 
pursuant to delegated authority from the Secretary of Energy. These 
documents with the original signature and date are maintained by DOE/
NNSA. For administrative purposes only, and in compliance with 
requirements of the Office of the Federal Register, the undersigned DOE 
Federal Register Liaison Officer has been authorized to sign and submit 
the document in electronic format for publication, as an official 
document of the Department of Energy. This administrative process in no 
way alters the legal effect of this document upon publication in the 
Federal Register.

    Signed in Washington, DC, on May 13, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons set out in the preamble, DOE amends chapter 9 of 
title 2 of the Code of Federal Regulations as follows:

PART 910--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND 
AUDIT REQUIREMENTS FOR FEDERAL AWARDS

0
1. The authority citation for part 910 continues to read as follows:

    Authority: 42 U.S.C. 7101, et seq.; 31 U.S.C. 6301-6308; 50 
U.S.C. 2401 et seq.; 2 CFR part 200.


0
2. Subpart B is amended by adding Sec.  910.133 to read as follows:


Sec.  910.133  Deviation authority.

    (a) General. (1) A deviation is the use of any policy, procedure, 
form, standard, term, or condition which varies from a requirement of 
this part, or the waiver of any such requirement, unless such use or 
waiver is authorized or precluded by Federal statute. The use of 
optional or discretionary provisions of this part, including special 
restrictive conditions used in accordance with Sec.  910.372, 
exceptions under 2 CFR 200.102, and the waiver of the cost sharing 
requirements in Sec.  910.130 are

[[Page 32980]]

not deviations. Awards to foreign entities are not subject to this 
section.
    (2) A single-case deviation is a deviation which applies to one 
financial assistance transaction and one applicant, recipient, or 
subrecipient only.
    (3) A class deviation is a deviation which applies to more than one 
financial assistance transaction, applicant, recipient, or 
subrecipient.
    (b) Conditions for approval. The DOE/NNSA officials specified in 
paragraph (c) of this section may authorize a deviation only upon a 
written determination that the deviation is--
    (1) Necessary to achieve program objectives;
    (2) Necessary to conserve public funds;
    (3) Otherwise essential to the public interest; or
    (4) Necessary to achieve equity.
    (c) Approval procedures. (1) A deviation request must be in writing 
and must be submitted to the responsible DOE/NNSA Contracting Officer. 
An applicant for a subaward or a subrecipient shall submit any such 
request through the recipient.
    (2) Except as provided in paragraph (c)(3) of this section--
    (i) A single-case deviation may be authorized by the responsible 
HCA.
    (ii) A class deviation may be authorized by the Director, Office of 
Acquisition Management, for DOE actions, and the Deputy Associate 
Administrator for the Office of Acquisition and Project Management for 
NNSA, for NNSA actions, or designee.
    (3) Whenever the approval of OMB, other Federal agency, or other 
DOE/NNSA office is required to authorize a deviation, the proposed 
deviation must be submitted to the Director, Office of Acquisition 
Management, for DOE actions, and the Deputy Associate Administrator for 
the Office of Acquisition and Project Management for NNSA, for NNSA 
actions, or designee for concurrence prior to submission to the 
authorizing official.
    (d) Notice. Whenever a request for a class deviation is approved, 
DOE/NNSA will identify this class deviation (as applicable) in the 
Notice of Funding Opportunity(s) that may be affected.
    (e) Subawards. A recipient may use a deviation in a subaward only 
with the prior written approval of a DOE/NNSA Contracting Officer.

[FR Doc. 2020-10577 Filed 5-29-20; 8:45 am]
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