Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 15317-15323 [2022-04240]
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15317
Rules and Regulations
Federal Register
Vol. 87, No. 53
Friday, March 18, 2022
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.
49506, which became effective on
November 12, 2020. DOE further
amends its regulation at 2 CFR 910.130
to remove reference to an expired
statutory cost share pilot program. This
final rule also makes technical changes
to correct pre-existing numbering errors
in the regulatory text.
II. Discussion of Final Rule
DEPARTMENT OF ENERGY
2 CFR Part 910
RIN 1991–AC16
Uniform Administrative Requirements,
Cost Principles, and Audit
Requirements for Federal Awards
Office of Management, U.S.
Department of Energy.
ACTION: Final rule.
AGENCY:
The Department of Energy
(DOE) publishes a final rule to make
technical and administrative changes as
a result of the Office of Management and
Budget (OMB) revisions to its
regulations on Grants and Agreements.
The changes are required in order to
align DOE’s regulations with the revised
OMB regulations and to remove
reference to an expired statutory cost
share pilot program. The final rule also
makes technical changes to correct preexisting numbering errors in the
regulatory text.
DATES: This rule is effective March 18,
2022.
FOR FURTHER INFORMATION CONTACT: Mr.
Richard Bonnell, U.S. Department of
Energy, Office of Management, 950
L’Enfant Plaza SW, Washington, DC
20024; (202) 287–1747 or
Richard.Bonnell@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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I. Introduction
II. Discussion of Final Rule
III. Regulatory Review
IV. Approval of the Office of the Secretary
I. Introduction
Title 2 CFR part 910 adopts OMB’s
guidance, which updated its
regulations, in subparts A through F of
2 CFR part 200 as DOE’s policies and
procedures for uniform administrative
requirements, cost principles, and audit
requirement for Federal awards. DOE is
amending 2 CFR part 910 to align with
the OMB’s recent revisions to its
regulations on Grants and Agreements
published on August 13, 2020, at 85 FR
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DOE amends its Uniform
Administrative Requirements, Cost
Principles, and Audit Requirements for
Federal Awards at 2 CFR part 910 as
follows:
1. Section 910.122, paragraph (a) is
revised to change the reference to NonFederal entity from 2 CFR 200.69 to 2
CFR 200.1.
2. Section 910.128, paragraph (f)(1)(i)
is revised to change the reference to
Specific Conditions from 2 CFR 200.207
to 2 CFR 200.208; paragraph (f)(1)(iv) is
revised to change the reference to
Remedies for Noncompliance from 2
CFR 200.338 to 2 CFR 200.339;
paragraph (f)(1)(v) is revised to change
the reference to Federal awarding
agency or pass-through entity review
from 2 CFR 200.324 to 2 CFR 200.325;
and paragraph (f)(2)(iii) is revised to
change the reference to Termination
from 2 CFR 200.339 to 2 CFR 200.340.
3. Section 910.130, paragraph (b)(3) is
deleted to implement the September 27,
2020, expiration of the Cost-Share Pilot
Program enacted by Congress at section
108 of the Department of Energy
Research and Innovation Act, Public
Law 115–246; (e) is revised to change
the references to the terms Development
and Research from 2 CFR 200.87 to 2
CFR 200.1.
4. Section 910.350, paragraph (a) is
revised to change the reference to NonFederal entity from 2 CFR 200.69 to 2
CFR 200.1.
5. Section 910.352 is revised to
change the reference to the General
Provisions for Selected Items of Cost
from 2 CFR 200.400 through 200.475 to
2 CFR 200.420 through 2 CFR 200.476.
6. Section 910.360, paragraph (c)(1) is
revised to change the reference to
Remedies for non-compliance from 2
CFR 200.338 to 2 CFR 200.339; and
paragraph (c)(2) is revised to change the
references to Federal awarding agency
review of risk posed by applicants from
2 CFR 200.205 to 2 CFR 200.206 and the
reference to Specific conditions from 2
CFR 200.207 and 2 CFR 200.208.
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7. Section 910.370, paragraph (b) is
revised to change the reference to all of
the legally available remedies for noncompliance from 2 CFR 200.338 through
2 CFR 200.342 to 2 CFR 200.339 through
2 CFR 200.343.
8. Section 910.372, paragraph (a) is
revised to change the reference to
Federal awarding agency review of risk
posed by applicants from 2 CFR 200.205
to 2 CFR 200.206 and the reference to
Specific Conditions from 2 CFR 200.207
to 2 CFR 200.208.
9. Appendix A to Subpart D—Patent
and Data Provisions, paragraph (1)(a) is
revised to change the reference to the
definition of ‘‘[n]onprofit organization’’
from 2 CFR 200.70 to 2 CFR 200.1.
10. Section 910.501, paragraph (f) is
revised to change the reference to
Subrecipient and contractor
determinations from 2 CFR 200.330 to 2
CFR 200.331; and paragraph (h) is
revised to change the reference to
Requirements for pass-through entities
from 2 CFR 200.331 to 2 CFR 200.332.
11. In section 910.502, the following
redesignations are made in order to
correct numbering errors in the initial
publication of 2 CFR part 910 and are
made in order to improve clarity and
readability of the section. Paragraph (b)
Not applicable. is deleted; paragraph (a)
Loan and loan guarantees (loans) is
redesignated as paragraph (b); The
introductory text beginning
‘‘Determining Federal awards
expended’’ is designated as paragraph
(a); Paragraphs (d), (e), (f), (g), (h), and
(i) are redesignated as paragraphs (e), (f),
(g), (h), (i), and (j); and paragraph (d) See
Paragraph (b) is added.
12. Section 910.505 is revised to
change the reference to Remedies for
noncompliance from 2 CFR 200.338 to
2 CFR 200.339.
13. Section 910.507, paragraph (a)
pertaining to auditor guidance when a
program-specific audit guide is available
is revised to incorporate the language
changes in 2 CFR 200.507. The
following redesignations are due to
numbering errors at time of initial
publication of 2 CFR part 910 and made
in order to improve clarity and
readability of the section. Paragraphs
(a)(1), (2), (3), and (4) pertaining to
auditor requirements when a programspecific audit guide is not available are
redesignated as paragraphs (b)(1), (2),
(3), and (4). Paragraph (a)(5) pertaining
to report submissions for program-
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specific audits is redesignated as
paragraph (c)(1). In this final rule,
additional conforming changes are made
to paragraphs (a)(6) and (7) which are
redesignated as (c)(2) and (3) and
paragraph (b) redesignated as (d).
14. Section 910.513, paragraph (c) is
revised to change the reference to
Information contained in a Federal
award from 2 CFR 200.210 to 2 CFR
200.211; and paragraph (c)(3)(iii) is
revised to change the reference to
Cooperative audit resolution from 2 CFR
200.25 to 2 CFR 200.1.
15. In section 910.514, the following
redesignations are made in order to
correct numbering errors in the initial
publication of 2 CFR part 910 and made
in order to improve clarity and
readability of the section. Paragraph
(b)(1) Internal control. is redesignated as
paragraph (c); the paragraph that begins
‘The compliance supplement provides
guidance . . . .’ is designated as
paragraph (c)(1); Paragraph (3)(i) is
revised to remove the period and add ‘;
and’ at the end; Paragraph (5)
Compliance. is redesignated as
paragraph (d); the paragraph that begins
‘In addition to the requirements of
GAGAS, . . . .’ is designated as
paragraph (d)(1); Paragraphs (6), (7), and
(8) are redesignated as paragraphs (d)(2),
(d)(3), and (d)(4); Paragraph (c) ‘‘Audit
follow-up.’’ is redesignated as paragraph
(e); and paragraph (f) Not applicable is
added to correspond with 2 CFR 200
formatting.
16. In section 910.515, the following
redesignations are made in order to
correct numbering errors in the initial
publication of 2 CFR part 910 and made
in order to improve clarity and
readability of the section. Paragraph
(d)(2)(i) is redesignated as paragraph
(d)(3); and the sentence beginning
‘Audit findings (e.g., internal control
findings, compliance findings,
questioned costs, or fraud) . . .’ is
designated as paragraph (d)(3)(i).
17. In section 910.519, the following
redesignations are made in order to
correct numbering errors in the initial
publication of 2 CFR part 910 and made
in order to improve clarity and
readability of the section. Paragraph
(a)(1) Current and prior audit
experience. is redesignated as paragraph
(b); the text that begins ‘Weaknesses in
internal control over DOE programs
. . . .’ is designated as paragraph (b)(1);
Paragraph (a)(4) Oversight exercised by
DOE. is redesignated as paragraph (c);
the text that begins ‘Oversight exercised
by DOE could be used . . . .’ is
designated as paragraph (c)(1);
paragraph (a)(5) is redesignated as
paragraph (c)(2); paragraph (a)(6)
Inherent risk of the Federal program. is
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redesignated as paragraph (d); the text
that begins ‘The nature of a Federal
program . . . .’ is designated as
paragraph (d)(1); and paragraphs (a)(7),
(a)(8), and (a)(9) are redesignated as
paragraphs (d)(2), (d)(3) and (d)(4).
18. In section 910.520, the following
redesignations are made in order to
correct numbering errors in the initial
publication of 2 CFR part 910 and made
in order to improve clarity and
readability of the section. Paragraph (a)
designation is moved to the second
sentence beginning ‘Compliance audits
were performed on an annual . . . .’.
III. Regulatory Review
A. Administrative Procedure Act
DOE finds good cause to waive notice
and comment on these regulations
pursuant to 5 U.S.C. 553(b)(B) and the
30-day delay effective date pursuant to
5 U.S.C. 553(d). Notice and comment
are unnecessary and contrary to the
public interest because this final rule
merely adopts recent amendments made
by OMB to its rule on Grants and
Agreements that published on August
13, 2020, at 85 FR 49506 and that
became effective on November 12, 2020.
DOE has concluded that there is good
cause to publish this rule without prior
opportunity for public comment
because the action aligns DOE’s
regulations with OMB’s, for which OMB
solicited comment with (a 60-day public
comment period (85 FR 3766, Jan. 22,
2020). OMB, received over 2,500
comments from the public, federal
agencies, and the Council of the
Inspectors General on Integrity and
Efficiency Grant Reform Workgroup,
which OMB reviewed and addressed (85
FR 49506, Aug. 13, 2020). As part of that
process, OMB reconvened agency
representatives, including DOE, to
review the comments and make changes
to the proposed revisions as
appropriate. This final rule aligns DOE’s
regulations with OMB’s revised
regulations. A delay in effective date is
unnecessary and contrary to the public
interest for these same reasons. In
addition, this rule makes a nondiscretionary change to remove a
reference to an expired cost-share
program and it makes technical changes
to correct numbering errors. Therefore,
these regulations are being published as
final regulations and are effective March
18, 2022.
B. Executive Order 12866
This final rule has been determined to
not be a significant regulatory action
under Executive Order 12866,
‘‘Regulatory Planning and Review,’’ 58
FR 51735 (October 4, 1993).
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Accordingly, this action was not subject
to review under that Executive order by
the Office of Information and Regulatory
Affairs (OIRA) of the Office of
Management and Budget.
C. National Environmental Policy Act
DOE has determined that the rule is
covered under the Categorical Exclusion
found in DOE’s National Environmental
Policy Act regulations at paragraph A5
of appendix A to subpart D, 10 CFR part
1021, which 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. Accordingly,
neither an environmental assessment
nor an environmental impact statement
is required.
D. 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. As required by
Executive Order 13272, ‘‘Proper
Consideration of Small Entities in
Agency Rulemaking,’’ 67 FR 53461
(August 16, 2002), DOE published
procedures and policies on February 19,
2003, to ensure that the potential
impacts of its rules on small entities are
properly considered during the
rulemaking process (68 FR 7990). DOE
has made its procedures and policies
available on the Office of General
Counsel’s website: https://
www.gc.doe.gov.
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. As
discussed previously, DOE has
determined that providing notice and
opportunity for public comment on this
rule is unnecessary and contrary to the
public interest. Therefore, no regulatory
flexibility analysis has been prepared
for this rule.
E. Paperwork Reduction Act
This final rule imposes no new
information or recordkeeping
requirements. Accordingly, OMB
clearance is not required under the
Paperwork Reduction Act. (44 U.S.C.
3501 et seq.). The information collection
necessary to administer DOE financial
assistance under 2 CFR part 910 is
subject to OMB approval under the
Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq. The information
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collection provisions of this part were
previously approved by OMB under
OMB Control No. 1910–0400.
Notwithstanding any other provision
of the law, no person is required to
respond to, nor shall any person be
subject to a penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB Control Number.
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F. 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
regulatory actions 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,
and other effects on the national
economy (2 U.S.C. 1532(a),(b)). 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. (This policy is
also available at https://energy.gov/gc/
office-general-counsel.) DOE examined
this rule according to UMRA and has
determined that the rule contains
neither an intergovernmental mandate,
nor a mandate that may result in the
expenditure by State, local, and tribal
government, in the aggregate, or by the
private sector, of $100 million or more
in any year. Accordingly, no further
assessment or analysis is required under
UMRA.
G. Treasury and General Government
Appropriations Act, 1999
Section 654 of the Treasury and
General Government Appropriations
Act, 1999 (Pub. L. 105–277) requires
Federal agencies to issue a Family
Policymaking Assessment for any rule
that may affect family well-being. This
rule would not have any impact on the
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autonomy or integrity of the family as
an institution. Accordingly, DOE has
concluded that it is not necessary to
prepare a Family Policymaking
Assessment.
extent permitted by law, this rule meets
the relevant standards of Executive
Order 12988.
H. Executive Order 13132
Executive Order 13132, ‘‘Federalism,’’
64 FR 43255 (August 4, 1999) imposes
certain requirements on agencies
formulating and implementing policies
or regulations that preempt State law or
that have federalism implications.
Agencies are required to examine the
constitutional and statutory authority
supporting any action that would limit
the policymaking discretion of the
States and carefully assess the necessity
for such actions. DOE has examined this
rule and has determined that it would
not preempt State law and would 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.
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 OMB a Statement
of Energy Effects for any significant
energy action. A ‘‘significant energy
action’’ is defined as any action by an
agency that promulgated or is expected
to lead to promulgation of a final rule,
and that:
(1) Is a significant regulatory action
under Executive Order 12866, or any
successor order; and (2) is likely to have
a significant adverse effect on the
supply, distribution, or use of energy, or
(3) is designated by the Administrator of
OIRA as a significant energy action. For
any proposed significant energy action,
the agency must give a detailed
statement of any adverse effects on
energy supply, distribution, or use
should the proposal be implemented,
and of reasonable alternatives to the
action and their expected benefits on
energy supply, distribution, and use.
This regulatory action would not have a
significant adverse effect on the supply,
distribution, or use of energy and is
therefore not a significant regulatory
action. Accordingly, DOE has not
prepared a Statement of Energy Effects.
I. Executive Order 12988
With respect to the review of existing
regulations and the promulgation of
new regulations, section 3(a) of
Executive Order 12988, ‘‘Civil Justice
Reform’’ 61 FR 4729 (February 7, 1996),
imposes on executive agencies the
general duty to adhere to the following
requirements: (1) Eliminate drafting
errors and ambiguity; (2) write
regulations to minimize litigation; and
(3) provide a clear legal standard for
affected conduct rather than a general
standard and promote simplification
and burden reduction. With regard to
the review required by section 3(a),
section 3(b), Executive Order 12988
specifically requires that Federal
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 guidelines issued
by the Attorney General. Section 3(c) of
Executive Order 12988 requires
executive agencies to review regulations
in light of applicable standards in
section 3(a) and section 3(b) to
determine whether they are met, or it is
unreasonable to meet one or more of
them. DOE has completed the required
review and determined that to the
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J. Executive Order 13211
K. 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 rule under the OMB and
DOE guidelines and has concluded that
it is consistent with applicable policies
in those guidelines.
L. Congressional Review
As required by 5 U.S.C. 801, DOE will
submit to Congress a report regarding
the issuance of this final rule prior to
the effective date set forth at the outset
of this document. The report will state
that it has been determined that the rule
is not a ‘‘major rule’’ as defined by 5
U.S.C. 801(2).
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§ 910.128
IV. Approval of the Office of the
Secretary
The Secretary of Energy has approved
publication of this final rule.
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 February 10,
2022, by John R. Bashista, Director,
Office of Acquisition Management and
Senior Procurement Executive,
Department of Energy and 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
Secretary of Energy. That document
with the original signature and date is
maintained by DOE. 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 February 24,
2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S.
Department of Energy.
For the reasons set forth in the
preamble, the Department of Energy
amends part 910 of chapter IX, title 2 of
the Code of Federal Regulations as set
forth below.
PART 910—UNIFORM
ADMINISTRATIVE REQUIREMENTS,
COST PRINCIPLES, AND AUDIT
REQUIREMENTS FOR FEDERAL
AWARDS
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[Amended]
2. Section 910.122 is amended in
paragraph (a) by removing ‘‘Part 910’’
and ‘‘2 CFR 200.69’’ and adding in their
places ‘‘this part’’ and ‘‘2 CFR 200.1’’,
respectively.
■
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[Amended]
3. Section 910.130 is amended:
a. In paragraph (b)(1) by adding at the
end of the paragraph ‘‘or’’;
■ b. In paragraph (b)(2) by removing ‘‘;
or’’ and adding in its place a period;
■ c. By removing paragraph (b)(3); and
■ d. In paragraph (e):
■ i. In the definition for ‘‘Development’’
by removing ‘‘2 CFR 200.87’’ and adding
in its place ‘‘2 CFR 200.1’’; and
■ ii. In the definition for ‘‘Research’’ by
removing ‘‘2 CFR 200.87’’ and adding in
its place ‘‘2 CFR 200.1’’.
■
■
§ 910.350
[Amended]
4. Section 910.350 is amended in
paragraph (a) by removing ‘‘2 CFR
910.122’’, ‘‘part 910’’, and ‘‘2 CFR
200.69’’ and adding in their places
‘‘§ 910.22’’, ‘‘this part’’, and ‘‘2 CFR
200.1’’, respectively.
■
§ 910.352
[Amended]
5. Section 910.352 is amended by
removing ‘‘2 CFR 200.400 through
200.475’’ and adding in its place ‘‘2 CFR
200.400 through 200.476’’.
■
§ 910.360
[Amended]
6. Section 910.360 is amended:
a. In paragraph (c)(1) by removing ‘‘2
CFR 200.338’’ and adding in its place ‘‘2
CFR 200.339’’; and
■ b. In paragraph (c)(2) by removing ‘‘2
CFR 200.205 and 200.207’’ and ‘‘2 CFR
910.372’’ and adding in their places ‘‘2
CFR 200.206 and 200.208’’ and
‘‘§ 910.372’’, respectively.
■
■
[Amended]
7. Section 910.370 is amended in
paragraph (b) by removing ‘‘2 CFR
200.338 through 200.342’’ and adding in
its place ‘‘2 CFR 200.339 through
200.343’’.
■
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.
§ 910.122
§ 910.130
§ 910.370
1. The authority citation for part 910
continues to read as follows:
■
[Amended]
3. Section 910.128 is amended:
a. In paragraph (f)(1)(i) by removing
‘‘2 CFR 200.207’’ and adding in its place
‘‘2 CFR 200.208’’;
■ b. In paragraph (f)(1)(iv) by removing
‘‘2 CFR 200.338’’ and adding in its place
‘‘2 CFR 200.339’’;
■ c. In paragraph (f)(1)(v) by removing
‘‘2 CFR 200.324’’ and adding in its place
‘‘2 CFR 200.325’’; and
■ d. In paragraph (f)(2)(iii) by removing
‘‘2 CFR 200.339 (a)(1)–(2)’’ and adding
in its place ‘‘2 CFR 200.340(a)(1) and
(2)’’.
■
■
§ 910.372
[Amended]
8. Section 910.372 is amended in
paragraph (a) introductory text by
removing ‘‘2 CFR 200.205’’ and adding
in its place ‘‘2 CFR 200.206’’ and
■
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removing ‘‘2 CFR 200.207’’ and adding
in its place ‘‘2 CFR 200.208’’.
Appendix A to Subpart D of Part 910
[Amended]
9. Appendix A to subpart D of part
910 is amended in section 1., paragraph
(a), in the definition of ‘‘Nonprofit
organization’’, by removing ‘‘2 CFR
200.70’’ and adding in its place ‘‘2 CFR
200.1’’.
■
§ 910.501
[Amended]
10. Section 910.501 is amended:
a. In paragraph (e) by removing ‘‘Part’’
and adding in its place ‘‘part’’;
■ b. In paragraph (f) by removing ‘‘Part’’
and ‘‘Section 2 CFR 200.330
Subrecipient and contractor
determinations’’ and adding in their
places ‘‘part’’ and ‘‘The provisions of 2
CFR 200.331, Subrecipient and
contractor determinations,’’,
respectively; and
■ c. In paragraph (h) by removing ‘‘Part’’
and ‘‘2 CFR 200.331’’ and adding in
their places ‘‘part’’ and ‘‘2 CFR
200.332,’’.
■ 11. Section 910.502 is revised to read
as follows:
■
■
§ 910.502 Basis for determining DOE
awards expended.
(a) Determining Federal awards
expended. The determination of when a
Federal award is expended must be
based on when the activity related to the
DOE award occurs. Generally, the
activity pertains to events that require
the non-Federal entity to comply with
Federal statutes, regulations, and the
terms and conditions of DOE awards,
such as: Expenditure/expense
transactions associated with awards
including grants, cost-reimbursement
contracts under the FAR, compacts with
Indian Tribes, cooperative agreements,
and direct appropriations; the
disbursement of funds to subrecipients;
the use of loan proceeds under loan and
loan guarantee programs; the receipt of
property; the receipt of surplus
property; the receipt or use of program
income; the distribution or use of food
commodities; the disbursement of
amounts entitling the for-profit entity to
an interest subsidy; and the period
when insurance is in force.
(b) Loan and loan guarantees (loans).
Loan and loan guarantees issued by the
DOE Loan Program Office
corresponding to Title XVII of the
Energy Policy Act of 2005, as amended,
42 U.S.C. 16511–16516 (‘‘Title XVII’’)
are exempt from these provisions.
(1) Not applicable.
(2) Not applicable.
(3) Not applicable.
(c) Not applicable.
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(d) Prior loan and loan guarantees
(loans). See paragraph (b) of this section.
(e) Endowment funds. The cumulative
balance of DOE awards for endowment
funds that are federally restricted are
considered DOE awards expended in
each audit period in which the funds
are still restricted.
(f) Free rent. Free rent received by
itself is not considered a DOE award
expended under this Part. However, free
rent received as part of a DOE award to
carry out a DOE program must be
included in determining DOE awards
expended and subject to audit under
this part.
(g) Valuing non-cash assistance. DOE
non-cash assistance, such as free rent,
food commodities, donated property, or
donated surplus property, must be
valued at fair market value at the time
of receipt or the assessed value provided
by DOE.
(h) Not applicable.
(i) Not applicable.
(j) Not applicable.
§ 910.505
[Amended]
12. Section 910.505 is amended by
removing ‘‘Part’’ and ‘‘2 CFR 200.338’’
and adding in their places ‘‘part’’ and ‘‘2
CFR 200.339,’’, respectively.
■ 13. Section 910.507 is revised to read
as follows:
■
jspears on DSK121TN23PROD with RULES1
§ 910.507
Compliance audits.
(a) Program-specific audit guide
available. In some cases, a programspecific audit guide will be available to
provide specific guidance to the auditor
with respect to internal controls,
compliance requirements, suggested
audit procedures, and audit reporting
requirements. A listing of current
program-specific audit guides can be
found on the OMB website in the
compliance supplement, in part 8,
appendix VI, Program-Specific Audit
Guides, which includes a website where
a copy of the guide can be obtained.
When a current program-specific audit
guide is available, the auditor must
follow generally accepted government
auditing standards (GAGAS) and the
guide when performing a compliance
audit.
(b) Program-specific audit guide not
available. (1) When a program-specific
audit guide is not available, the auditee
and auditor must conduct the
compliance audit in accordance with
GAAS and GAGAS.
(2) If audited financial statements are
available, for-profit recipients should
submit audited financial statements to
DOE as a part of the compliance audit.
(If the recipient is a subsidiary for
which separate financial statements are
not available, the recipient may submit
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the financial statements of the
consolidated group.)
(3) The auditor must:
(i) Not applicable;
(ii) Obtain an understanding of
internal controls and perform tests of
internal controls over the DOE program
consistent with the requirements of
§ 910.514 Scope of audit;
(iii) Perform procedures to determine
whether the auditee has complied with
Federal statutes, regulations, and the
terms and conditions of DOE awards
that could have a direct and material
effect on the DOE program consistent
with the requirements of § 910.514
Scope of audit;
(iv) Follow up on prior audit findings,
perform procedures to assess the
reasonableness of the summary
schedule of prior audit findings
prepared by the auditee in accordance
with the requirements of § 910.511
Audit findings follow-up, and report, as
a current year audit finding, when the
auditor concludes that the summary
schedule of prior audit findings
materially misrepresents the status of
any prior audit finding; and
(v) Report any audit findings
consistent with the requirements of
§ 910.516 Audit findings.
(4) The auditor’s report(s) may be in
the form of either combined or separate
reports and may be organized differently
from the manner presented in this
section. The auditor’s report(s) must
state that the audit was conducted in
accordance with this part and include
the following:
(i) An opinion (or disclaimer of
opinion) as to whether the financial
statement(s) (if available) of the DOE
program is presented fairly in all
material respects in accordance with the
stated accounting policies;
(ii) A report on internal control
related to the DOE program, which must
describe the scope of testing of internal
control and the results of the tests;
(iii) A report on compliance which
includes an opinion (or disclaimer of
opinion) as to whether the auditee
complied with laws, regulations, and
the terms and conditions of DOE awards
which could have a direct and material
effect on the DOE program; and
(iv) A schedule of findings and
questioned costs for the DOE program
that includes a summary of the auditor’s
results relative to the DOE program in
a format consistent with § 910.515 Audit
reporting, paragraph (d)(1) and findings
and questioned costs consistent with the
requirements of § 910.515 Audit
reporting, paragraph (d)(3).
(c) Report submission for programspecific audits. (1) The audit must be
completed and the reporting required by
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15321
paragraph (c)(2) or (3) of this section
submitted within the earlier of 30
calendar days after receipt of the
auditor’s report(s), or nine months after
the end of the audit period, unless a
different period is specified in a
program-specific audit guide. Unless
restricted by Federal law or regulation,
the auditee must make report copies
available for public inspection. Auditees
and auditors must ensure that their
respective parts of the reporting package
do not include protected personally
identifiable information.
(2) When a program-specific audit
guide is available, the compliance
audits must be submitted (along with
audited financial statements if audited
financial statements are available), to
the appropriate DOE Contracting Officer
as well as to the DOE Office of the Chief
Financial Officer.
(3) When a program-specific audit
guide is not available, the reporting
package for a program-specific audit
must consist of, a summary schedule of
prior audit findings, and a corrective
action plan as described in paragraph
(b)(2) of this section, and the auditor’s
report(s) described in paragraph (b)(4) of
this section. The compliance audit must
be submitted (along with audited
financial statements if audited financial
statements are available), to the
appropriate DOE Contracting Officer as
well as to the DOE Office of the Chief
Financial Officer.
(d) Other sections of this part may
apply. Compliance audits are subject to:
(1) Section 910.500 Purpose through
§ 910.503 Relation to other audit
requirements, paragraph (d);
(2) Section 910.504 Frequency of
audits through § 910.506 Audit costs;
(3) Section 910.508 Auditee
responsibilities and § 910.509 Auditor
selection;
(4) Section 910.511 Audit findings
follow-up;
(5) Section 910.512 Report
submission, paragraphs (e) through (h);
(6) Section 910.513 Responsibilities;
(7) Section 910.516 Audit findings
and § 910.517 Audit documentation;
(8) Section 910.521 Management
decision; and
(9) Other referenced provisions of this
part unless contrary to the provisions of
this section, a program-specific audit
guide, or program statutes and
regulations.
§ 910.513
[Amended]
14. Section 910.513 is amended:
a. In paragraph (c) introductory text by
removing ‘‘2 CFR 200.210’’ and adding
in its place ‘‘2 CFR 200.211’’; and
■
■
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b. In paragraph (c)(3)(iii) by removing
‘‘2 CFR 200.25’’ and adding in its place
‘‘2 CFR 200.1,’’.
■ 15. Section 910.514 is revised to read
as follows:
■
jspears on DSK121TN23PROD with RULES1
§ 910.514
Scope of audit.
(a) General. The audit must be
conducted in accordance with GAGAS.
The audit must cover the entire
operations of the auditee, or, at the
option of the auditee, such audit must
include a series of audits that cover
departments, agencies, and other
organizational units that expended or
otherwise administered DOE awards
during such audit period, provided that
each such audit must encompass the
schedule of expenditures of DOE awards
for each such department, agency, and
other organizational unit, which must
be considered to be a for-profit entity.
The financial statements (if available)
and schedule of expenditures of DOE
awards must be for the same audit
period.
(b) Financial statements. If financial
statements are available, the auditor
must determine whether the schedule of
expenditures of DOE awards is stated
fairly in all material respects in relation
to the auditee’s financial statements as
a whole.
(c) Internal control. (1) The
compliance supplement provides
guidance on internal controls over
Federal programs based upon the
guidance in Standards for Internal
Control in the Federal Government
issued by the Comptroller General of the
United States and the Internal Control—
Integrated Framework, issued by the
Committee of Sponsoring Organizations
of the Treadway Commission (COSO).
(2) In addition to the requirements of
GAGAS the auditor must perform
procedures to obtain an understanding
of internal control over DOE programs
sufficient to plan the audit to support a
low assessed level of control risk of
noncompliance for major programs.
(3) Except as provided in paragraph
(c)(4) of this section, the auditor must:
(i) Plan the testing of internal control
over compliance to support a low
assessed level of control risk for the
assertions relevant to the compliance
requirements; and
(ii) Perform testing of internal control
as planned in paragraph (c)(3)(i) of this
section.
(4) When internal control over some
or all of the compliance requirements
are likely to be ineffective in preventing
or detecting noncompliance, the
planning and performing of testing
described in paragraph (c)(3) of this
section are not required for those
compliance requirements. However, the
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auditor must report a significant
deficiency or material weakness in
accordance with § 910.516 Audit
findings, assess the related control risk
at the maximum, and consider whether
additional compliance tests are required
because of ineffective internal control.
(d) Compliance. (1) In addition to the
requirements of GAGAS, the auditor
must determine whether the auditee has
complied with Federal statutes,
regulations, and the terms and
conditions of Federal awards that may
have a direct and material effect.
(2) The principal compliance
requirements applicable to most Federal
programs and the compliance
requirements of the largest Federal
programs are included in the
compliance supplement.
(3) For the compliance requirements
related to Federal programs contained in
the compliance supplement, an audit of
these compliance requirements will
meet the requirements of this part.
Where there have been changes to the
compliance requirements and the
changes are not reflected in the
compliance supplement, the auditor
must determine the current compliance
requirements and modify the audit
procedures accordingly. For those
Federal programs not covered in the
compliance supplement, the auditor
should follow the compliance
supplement’s guidance for programs not
included in the supplement.
(4) The compliance testing must
include tests of transactions and such
other auditing procedures necessary to
provide the auditor sufficient
appropriate audit evidence to support
an opinion on compliance.
(e) Audit follow-up. The auditor must
follow-up on prior audit findings,
perform procedures to assess the
reasonableness of the summary
schedule of prior audit findings
prepared by the auditee in accordance
with § 910.511 Audit findings follow-up
paragraph (b), and report, as a current
year audit finding, when the auditor
concludes that the summary schedule of
prior audit findings materially
misrepresents the status of any prior
audit finding. The auditor must perform
audit follow-up procedures.
(f) Not applicable.
■ 16. Section 910.515 is revised to read
as follows:
§ 910.515
Audit reporting.
The auditor’s report(s) may be in the
form of either combined or separate
reports and may be organized differently
from the manner presented in this
section. The auditor’s report(s) must
state that the audit was conducted in
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Fmt 4700
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accordance with this part and include
the following:
(a) An opinion (or disclaimer of
opinion) as to whether the financial
statements (if available) are presented
fairly in all material respects in
accordance with generally accepted
accounting principles and an opinion
(or disclaimer of opinion) as to whether
the schedule of expenditures of DOE
awards is fairly stated in all material
respects in relation to the financial
statements (if available) as a whole.
(b) A report on internal control over
financial reporting and compliance with
Federal statutes, regulations, and the
terms and conditions of the DOE award,
noncompliance with which could have
a material effect on the financial
statements. This report must describe
the scope of testing of internal control
and compliance and the results of the
tests, and, where applicable, it will refer
to the separate schedule of findings and
questioned costs described in paragraph
(d) of this section.
(c) A report on compliance and report
and internal control over compliance.
This report must describe the scope of
testing of internal control over
compliance, include an opinion or
modified opinion as to whether the
auditee complied with Federal statutes,
regulations, and the terms and
conditions of DOE awards which could
have a direct and material effect and
refer to the separate schedule of findings
and questioned costs described in
paragraph (d) of this section.
(d) A schedule of findings and
questioned costs which must include
the following three components:
(1) A summary of the auditor’s results,
which must include:
(i) The type of report the auditor
issued (if applicable) on whether the
financial statements (if available)
audited were prepared in accordance
with GAAP (i.e., unmodified opinion,
qualified opinion, adverse opinion, or
disclaimer of opinion);
(ii) Where applicable, a statement
about whether significant deficiencies
or material weaknesses in internal
control were disclosed by the audit of
the financial statements (if available);
(iii) A statement (if applicable) as to
whether the audit disclosed any
noncompliance that is material to the
financial statements (if available) of the
auditee;
(iv) Where applicable, a statement
about whether significant deficiencies
or material weaknesses in internal
control over major programs were
disclosed by the audit;
(v) The type of report the auditor
issued on compliance (i.e., unmodified
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opinion, qualified opinion, adverse
opinion, or disclaimer of opinion);
(vi) A statement as to whether the
audit disclosed any audit findings that
the auditor is required to report under
§ 910.516 Audit findings, paragraph (a);
(vii) Not applicable.
(viii) Not applicable.
(ix) Not applicable.
(2) Findings relating to the financial
Statements (if available) which are
required to be reported in accordance
with GAGAS.
(3) Findings and questioned costs for
DOE awards which must include audit
findings as defined in § 910.516 Audit
findings, paragraph (a).
(i) Audit findings (e.g., internal
control findings, compliance findings,
questioned costs, or fraud) that relate to
the same issue should be presented as
a single audit finding.
(ii) Audit findings that relate to both
the financial statements (if available)
and DOE awards, as reported under
paragraphs (d)(2) and (3) of this section,
respectively, should be reported in both
sections of the schedule. However, the
reporting in one section of the schedule
may be in summary form with a
reference to a detailed reporting in the
other section of the schedule.
(e) Nothing in this part precludes
combining of the audit reporting
required by this section with the
reporting required by § 910.512 Report
submission, paragraph (b), when
allowed by GAGAS.
■ 17. Section 910.519 is revised to read
as follows:
jspears on DSK121TN23PROD with RULES1
§ 910.519
Criteria for Federal program risk.
(a) General. The auditor’s
determination should be based on an
overall evaluation of the risk of
noncompliance occurring that could be
material to the DOE program. The
auditor must consider criteria, such as
described in paragraphs (b), (c), and (d)
of this section, to identify risk in
Federal programs. Also, as part of the
risk analysis, the auditor may wish to
discuss a particular DOE program with
auditee management and DOE.
(b) Current and prior audit
experience. (1) Weaknesses in internal
control over DOE programs would
indicate higher risk. Consideration
should be given to the control
environment over DOE programs and
such factors as the expectation of
management’s adherence to Federal
statutes, regulations, and the terms and
conditions of DOE awards and the
competence and experience of
personnel who administer the DOE
programs.
(i) A DOE program administered
under multiple internal control
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structures may have higher risk. The
auditor must consider whether
weaknesses are isolated in a single
operating unit (e.g., one college campus)
or pervasive throughout the entity.
(ii) When significant parts of a DOE
program are passed through to
subrecipients, a weak system for
monitoring subrecipients would
indicate higher risk.
(2) Prior audit findings would
indicate higher risk, particularly when
the situations identified in the audit
findings could have a significant impact
on a DOE program or have not been
corrected.
(3) DOE programs not recently
audited as major programs may be of
higher risk than Federal programs
recently audited as major programs
without audit findings.
(c) Oversight exercised by DOE. (1)
Oversight exercised by DOE could be
used to assess risk. For example, recent
monitoring or other reviews performed
by an oversight entity that disclosed no
significant problems would indicate
lower risk, whereas monitoring that
disclosed significant problems would
indicate higher risk.
(2) Federal agencies, with the
concurrence of OMB, may identify
Federal programs that are higher risk.
OMB will provide this identification in
the compliance supplement.
(d) Inherent risk of the Federal
program. (1) The nature of a Federal
program may indicate risk.
Consideration should be given to the
complexity of the program and the
extent to which the Federal program
contracts for goods and services. For
example, Federal programs that disburse
funds through third party contracts or
have eligibility criteria may be of higher
risk. Federal programs primarily
involving staff payroll costs may have
high risk for noncompliance with
requirements of 2 CFR 200.430
Compensation—personal services, but
otherwise be at low risk.
(2) The phase of a Federal program in
its life cycle at the Federal agency may
indicate risk. For example, a new
Federal program with new or interim
regulations may have higher risk than
an established program with time-tested
regulations. Also, significant changes in
Federal programs, statutes, regulations,
or the terms and conditions of Federal
awards may increase risk.
(3) The phase of a Federal program in
its life cycle at the auditee may indicate
risk. For example, during the first and
last years that an auditee participates in
a Federal program, the risk may be
higher due to start-up or closeout of
program activities and staff.
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(4) Programs with larger Federal
awards expended would be of higher
risk than programs with substantially
smaller Federal awards expended.
■ 18. Section 910.520 is revised to read
as follows:
§ 910.520
Criteria for a low-risk auditee.
An auditee that meets all of the
following conditions for each of the
preceding two audit periods may qualify
as a low-risk auditee and be eligible for
reduced audit coverage.
(a) Compliance audits were performed
on an annual basis in accordance with
the provisions of this Subpart, including
submitting the data collection form to
DOE within the timeframe specified in
§ 910.512 Report submission. A forprofit entity that has biennial audits
does not qualify as a low-risk auditee.
(b) The auditor’s opinion on whether
the financial statements (if available)
were prepared in accordance with
GAAP, or a basis of accounting required
by state law, and the auditor’s in
relation to opinion on the schedule of
expenditures of DOE awards were
unmodified.
(c) There were no deficiencies in
internal control which were identified
as material weaknesses under the
requirements of GAGAS.
(d) The auditor did not report a
substantial doubt about the auditee’s
ability to continue as a going concern.
(e) None of the DOE programs had
audit findings from any of the following
in either of the preceding two audit
periods:
(1) Internal control deficiencies that
were identified as material weaknesses
in the auditor’s report on internal
control as required under § 910.515
Audit reporting, paragraph (c);
(2) Not applicable.
(3) Not applicable.
[FR Doc. 2022–04240 Filed 3–17–22; 8:45 am]
BILLING CODE 6450–01–P
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the
Currency
12 CFR Parts 21 and 163
[Docket No. OCC–2020–0037]
RIN 1557–AE77
Exemptions to Suspicious Activity
Report Requirements
Office of the Comptroller of the
Currency (OCC), Treasury.
ACTION: Final rule.
AGENCY:
This final rule modifies the
requirements for national banks and
SUMMARY:
E:\FR\FM\18MRR1.SGM
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Agencies
[Federal Register Volume 87, Number 53 (Friday, March 18, 2022)]
[Rules and Regulations]
[Pages 15317-15323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04240]
========================================================================
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. 87, No. 53 / Friday, March 18, 2022 / Rules
and Regulations
[[Page 15317]]
DEPARTMENT OF ENERGY
2 CFR Part 910
RIN 1991-AC16
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards
AGENCY: Office of Management, U.S. Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) publishes a final rule to make
technical and administrative changes as a result of the Office of
Management and Budget (OMB) revisions to its regulations on Grants and
Agreements. The changes are required in order to align DOE's
regulations with the revised OMB regulations and to remove reference to
an expired statutory cost share pilot program. The final rule also
makes technical changes to correct pre-existing numbering errors in the
regulatory text.
DATES: This rule is effective March 18, 2022.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Bonnell, U.S. Department
of Energy, Office of Management, 950 L'Enfant Plaza SW, Washington, DC
20024; (202) 287-1747 or [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Discussion of Final Rule
III. Regulatory Review
IV. Approval of the Office of the Secretary
I. Introduction
Title 2 CFR part 910 adopts OMB's guidance, which updated its
regulations, in subparts A through F of 2 CFR part 200 as DOE's
policies and procedures for uniform administrative requirements, cost
principles, and audit requirement for Federal awards. DOE is amending 2
CFR part 910 to align with the OMB's recent revisions to its
regulations on Grants and Agreements published on August 13, 2020, at
85 FR 49506, which became effective on November 12, 2020. DOE further
amends its regulation at 2 CFR 910.130 to remove reference to an
expired statutory cost share pilot program. This final rule also makes
technical changes to correct pre-existing numbering errors in the
regulatory text.
II. Discussion of Final Rule
DOE amends its Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards at 2 CFR part 910
as follows:
1. Section 910.122, paragraph (a) is revised to change the
reference to Non-Federal entity from 2 CFR 200.69 to 2 CFR 200.1.
2. Section 910.128, paragraph (f)(1)(i) is revised to change the
reference to Specific Conditions from 2 CFR 200.207 to 2 CFR 200.208;
paragraph (f)(1)(iv) is revised to change the reference to Remedies for
Noncompliance from 2 CFR 200.338 to 2 CFR 200.339; paragraph (f)(1)(v)
is revised to change the reference to Federal awarding agency or pass-
through entity review from 2 CFR 200.324 to 2 CFR 200.325; and
paragraph (f)(2)(iii) is revised to change the reference to Termination
from 2 CFR 200.339 to 2 CFR 200.340.
3. Section 910.130, paragraph (b)(3) is deleted to implement the
September 27, 2020, expiration of the Cost-Share Pilot Program enacted
by Congress at section 108 of the Department of Energy Research and
Innovation Act, Public Law 115-246; (e) is revised to change the
references to the terms Development and Research from 2 CFR 200.87 to 2
CFR 200.1.
4. Section 910.350, paragraph (a) is revised to change the
reference to Non-Federal entity from 2 CFR 200.69 to 2 CFR 200.1.
5. Section 910.352 is revised to change the reference to the
General Provisions for Selected Items of Cost from 2 CFR 200.400
through 200.475 to 2 CFR 200.420 through 2 CFR 200.476.
6. Section 910.360, paragraph (c)(1) is revised to change the
reference to Remedies for non-compliance from 2 CFR 200.338 to 2 CFR
200.339; and paragraph (c)(2) is revised to change the references to
Federal awarding agency review of risk posed by applicants from 2 CFR
200.205 to 2 CFR 200.206 and the reference to Specific conditions from
2 CFR 200.207 and 2 CFR 200.208.
7. Section 910.370, paragraph (b) is revised to change the
reference to all of the legally available remedies for non-compliance
from 2 CFR 200.338 through 2 CFR 200.342 to 2 CFR 200.339 through 2 CFR
200.343.
8. Section 910.372, paragraph (a) is revised to change the
reference to Federal awarding agency review of risk posed by applicants
from 2 CFR 200.205 to 2 CFR 200.206 and the reference to Specific
Conditions from 2 CFR 200.207 to 2 CFR 200.208.
9. Appendix A to Subpart D--Patent and Data Provisions, paragraph
(1)(a) is revised to change the reference to the definition of
``[n]onprofit organization'' from 2 CFR 200.70 to 2 CFR 200.1.
10. Section 910.501, paragraph (f) is revised to change the
reference to Subrecipient and contractor determinations from 2 CFR
200.330 to 2 CFR 200.331; and paragraph (h) is revised to change the
reference to Requirements for pass-through entities from 2 CFR 200.331
to 2 CFR 200.332.
11. In section 910.502, the following redesignations are made in
order to correct numbering errors in the initial publication of 2 CFR
part 910 and are made in order to improve clarity and readability of
the section. Paragraph (b) Not applicable. is deleted; paragraph (a)
Loan and loan guarantees (loans) is redesignated as paragraph (b); The
introductory text beginning ``Determining Federal awards expended'' is
designated as paragraph (a); Paragraphs (d), (e), (f), (g), (h), and
(i) are redesignated as paragraphs (e), (f), (g), (h), (i), and (j);
and paragraph (d) See Paragraph (b) is added.
12. Section 910.505 is revised to change the reference to Remedies
for noncompliance from 2 CFR 200.338 to 2 CFR 200.339.
13. Section 910.507, paragraph (a) pertaining to auditor guidance
when a program-specific audit guide is available is revised to
incorporate the language changes in 2 CFR 200.507. The following
redesignations are due to numbering errors at time of initial
publication of 2 CFR part 910 and made in order to improve clarity and
readability of the section. Paragraphs (a)(1), (2), (3), and (4)
pertaining to auditor requirements when a program-specific audit guide
is not available are redesignated as paragraphs (b)(1), (2), (3), and
(4). Paragraph (a)(5) pertaining to report submissions for program-
[[Page 15318]]
specific audits is redesignated as paragraph (c)(1). In this final
rule, additional conforming changes are made to paragraphs (a)(6) and
(7) which are redesignated as (c)(2) and (3) and paragraph (b)
redesignated as (d).
14. Section 910.513, paragraph (c) is revised to change the
reference to Information contained in a Federal award from 2 CFR
200.210 to 2 CFR 200.211; and paragraph (c)(3)(iii) is revised to
change the reference to Cooperative audit resolution from 2 CFR 200.25
to 2 CFR 200.1.
15. In section 910.514, the following redesignations are made in
order to correct numbering errors in the initial publication of 2 CFR
part 910 and made in order to improve clarity and readability of the
section. Paragraph (b)(1) Internal control. is redesignated as
paragraph (c); the paragraph that begins `The compliance supplement
provides guidance . . . .' is designated as paragraph (c)(1); Paragraph
(3)(i) is revised to remove the period and add `; and' at the end;
Paragraph (5) Compliance. is redesignated as paragraph (d); the
paragraph that begins `In addition to the requirements of GAGAS, . . .
.' is designated as paragraph (d)(1); Paragraphs (6), (7), and (8) are
redesignated as paragraphs (d)(2), (d)(3), and (d)(4); Paragraph (c)
``Audit follow-up.'' is redesignated as paragraph (e); and paragraph
(f) Not applicable is added to correspond with 2 CFR 200 formatting.
16. In section 910.515, the following redesignations are made in
order to correct numbering errors in the initial publication of 2 CFR
part 910 and made in order to improve clarity and readability of the
section. Paragraph (d)(2)(i) is redesignated as paragraph (d)(3); and
the sentence beginning `Audit findings (e.g., internal control
findings, compliance findings, questioned costs, or fraud) . . .' is
designated as paragraph (d)(3)(i).
17. In section 910.519, the following redesignations are made in
order to correct numbering errors in the initial publication of 2 CFR
part 910 and made in order to improve clarity and readability of the
section. Paragraph (a)(1) Current and prior audit experience. is
redesignated as paragraph (b); the text that begins `Weaknesses in
internal control over DOE programs . . . .' is designated as paragraph
(b)(1); Paragraph (a)(4) Oversight exercised by DOE. is redesignated as
paragraph (c); the text that begins `Oversight exercised by DOE could
be used . . . .' is designated as paragraph (c)(1); paragraph (a)(5) is
redesignated as paragraph (c)(2); paragraph (a)(6) Inherent risk of the
Federal program. is redesignated as paragraph (d); the text that begins
`The nature of a Federal program . . . .' is designated as paragraph
(d)(1); and paragraphs (a)(7), (a)(8), and (a)(9) are redesignated as
paragraphs (d)(2), (d)(3) and (d)(4).
18. In section 910.520, the following redesignations are made in
order to correct numbering errors in the initial publication of 2 CFR
part 910 and made in order to improve clarity and readability of the
section. Paragraph (a) designation is moved to the second sentence
beginning `Compliance audits were performed on an annual . . . .'.
III. Regulatory Review
A. Administrative Procedure Act
DOE finds good cause to waive notice and comment on these
regulations pursuant to 5 U.S.C. 553(b)(B) and the 30-day delay
effective date pursuant to 5 U.S.C. 553(d). Notice and comment are
unnecessary and contrary to the public interest because this final rule
merely adopts recent amendments made by OMB to its rule on Grants and
Agreements that published on August 13, 2020, at 85 FR 49506 and that
became effective on November 12, 2020. DOE has concluded that there is
good cause to publish this rule without prior opportunity for public
comment because the action aligns DOE's regulations with OMB's, for
which OMB solicited comment with (a 60-day public comment period (85 FR
3766, Jan. 22, 2020). OMB, received over 2,500 comments from the
public, federal agencies, and the Council of the Inspectors General on
Integrity and Efficiency Grant Reform Workgroup, which OMB reviewed and
addressed (85 FR 49506, Aug. 13, 2020). As part of that process, OMB
reconvened agency representatives, including DOE, to review the
comments and make changes to the proposed revisions as appropriate.
This final rule aligns DOE's regulations with OMB's revised
regulations. A delay in effective date is unnecessary and contrary to
the public interest for these same reasons. In addition, this rule
makes a non-discretionary change to remove a reference to an expired
cost-share program and it makes technical changes to correct numbering
errors. Therefore, these regulations are being published as final
regulations and are effective March 18, 2022.
B. Executive Order 12866
This final rule has been determined to not 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) of the Office of Management
and Budget.
C. National Environmental Policy Act
DOE has determined that the rule is covered under the Categorical
Exclusion found in DOE's National Environmental Policy Act regulations
at paragraph A5 of appendix A to subpart D, 10 CFR part 1021, which
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. Accordingly, neither an environmental assessment nor an
environmental impact statement is required.
D. 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. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process (68 FR 7990). DOE has made its
procedures and policies available on the Office of General Counsel's
website: https://www.gc.doe.gov.
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. As discussed
previously, DOE has determined that providing notice and opportunity
for public comment on this rule is unnecessary and contrary to the
public interest. Therefore, no regulatory flexibility analysis has been
prepared for this rule.
E. Paperwork Reduction Act
This final rule imposes no new information or recordkeeping
requirements. Accordingly, OMB clearance is not required under the
Paperwork Reduction Act. (44 U.S.C. 3501 et seq.). The information
collection necessary to administer DOE financial assistance under 2 CFR
part 910 is subject to OMB approval under the Paperwork Reduction Act
(PRA), 44 U.S.C. 3501 et seq. The information
[[Page 15319]]
collection provisions of this part were previously approved by OMB
under OMB Control No. 1910-0400.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
F. 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 regulatory actions 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, and other effects on the national economy (2
U.S.C. 1532(a),(b)). 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. (This policy is also available at https://energy.gov/gc/office-general-counsel.) DOE examined this rule according to UMRA and
has determined that the rule contains neither an intergovernmental
mandate, nor a mandate that may result in the expenditure by State,
local, and tribal government, in the aggregate, or by the private
sector, of $100 million or more in any year. Accordingly, no further
assessment or analysis is required under UMRA.
G. Treasury and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This rule would not have any impact on the autonomy or integrity of the
family as an institution. Accordingly, DOE has concluded that it is not
necessary to prepare a Family Policymaking Assessment.
H. Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999)
imposes certain requirements on agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined this rule and has
determined that it would not preempt State law and would 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.
I. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform'' 61 FR 4729 (February 7, 1996), imposes on
executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b), Executive Order 12988
specifically requires that Federal 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 guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met, or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that to the extent permitted by law,
this rule meets the relevant standards of Executive Order 12988.
J. 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
OMB a Statement of Energy Effects for any significant energy action. A
``significant energy action'' is defined as any action by an agency
that promulgated or is expected to lead to promulgation of a final
rule, and that:
(1) Is a significant regulatory action under Executive Order 12866,
or any successor order; and (2) is likely to have a significant adverse
effect on the supply, distribution, or use of energy, or (3) is
designated by the Administrator of OIRA as a significant energy action.
For any proposed significant energy action, the agency must give a
detailed statement of any adverse effects on energy supply,
distribution, or use should the proposal be implemented, and of
reasonable alternatives to the action and their expected benefits on
energy supply, distribution, and use. This regulatory action would not
have a significant adverse effect on the supply, distribution, or use
of energy and is therefore not a significant regulatory action.
Accordingly, DOE has not prepared a Statement of Energy Effects.
K. 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
rule under the OMB and DOE guidelines and has concluded that it is
consistent with applicable policies in those guidelines.
L. Congressional Review
As required by 5 U.S.C. 801, DOE will submit to Congress a report
regarding the issuance of this final rule prior to the effective date
set forth at the outset of this document. The report will state that it
has been determined that the rule is not a ``major rule'' as defined by
5 U.S.C. 801(2).
[[Page 15320]]
IV. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this final
rule.
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 February
10, 2022, by John R. Bashista, Director, Office of Acquisition
Management and Senior Procurement Executive, Department of Energy and
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
Secretary of Energy. That document with the original signature and date
is maintained by DOE. 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 February 24, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set forth in the preamble, the Department of Energy
amends part 910 of chapter IX, title 2 of the Code of Federal
Regulations as set forth below.
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.
Sec. 910.122 [Amended]
0
2. Section 910.122 is amended in paragraph (a) by removing ``Part 910''
and ``2 CFR 200.69'' and adding in their places ``this part'' and ``2
CFR 200.1'', respectively.
Sec. 910.128 [Amended]
0
3. Section 910.128 is amended:
0
a. In paragraph (f)(1)(i) by removing ``2 CFR 200.207'' and adding in
its place ``2 CFR 200.208'';
0
b. In paragraph (f)(1)(iv) by removing ``2 CFR 200.338'' and adding in
its place ``2 CFR 200.339'';
0
c. In paragraph (f)(1)(v) by removing ``2 CFR 200.324'' and adding in
its place ``2 CFR 200.325''; and
0
d. In paragraph (f)(2)(iii) by removing ``2 CFR 200.339 (a)(1)-(2)''
and adding in its place ``2 CFR 200.340(a)(1) and (2)''.
Sec. 910.130 [Amended]
0
3. Section 910.130 is amended:
0
a. In paragraph (b)(1) by adding at the end of the paragraph ``or'';
0
b. In paragraph (b)(2) by removing ``; or'' and adding in its place a
period;
0
c. By removing paragraph (b)(3); and
0
d. In paragraph (e):
0
i. In the definition for ``Development'' by removing ``2 CFR 200.87''
and adding in its place ``2 CFR 200.1''; and
0
ii. In the definition for ``Research'' by removing ``2 CFR 200.87'' and
adding in its place ``2 CFR 200.1''.
Sec. 910.350 [Amended]
0
4. Section 910.350 is amended in paragraph (a) by removing ``2 CFR
910.122'', ``part 910'', and ``2 CFR 200.69'' and adding in their
places ``Sec. 910.22'', ``this part'', and ``2 CFR 200.1'',
respectively.
Sec. 910.352 [Amended]
0
5. Section 910.352 is amended by removing ``2 CFR 200.400 through
200.475'' and adding in its place ``2 CFR 200.400 through 200.476''.
Sec. 910.360 [Amended]
0
6. Section 910.360 is amended:
0
a. In paragraph (c)(1) by removing ``2 CFR 200.338'' and adding in its
place ``2 CFR 200.339''; and
0
b. In paragraph (c)(2) by removing ``2 CFR 200.205 and 200.207'' and
``2 CFR 910.372'' and adding in their places ``2 CFR 200.206 and
200.208'' and ``Sec. 910.372'', respectively.
Sec. 910.370 [Amended]
0
7. Section 910.370 is amended in paragraph (b) by removing ``2 CFR
200.338 through 200.342'' and adding in its place ``2 CFR 200.339
through 200.343''.
Sec. 910.372 [Amended]
0
8. Section 910.372 is amended in paragraph (a) introductory text by
removing ``2 CFR 200.205'' and adding in its place ``2 CFR 200.206''
and removing ``2 CFR 200.207'' and adding in its place ``2 CFR
200.208''.
Appendix A to Subpart D of Part 910 [Amended]
0
9. Appendix A to subpart D of part 910 is amended in section 1.,
paragraph (a), in the definition of ``Nonprofit organization'', by
removing ``2 CFR 200.70'' and adding in its place ``2 CFR 200.1''.
Sec. 910.501 [Amended]
0
10. Section 910.501 is amended:
0
a. In paragraph (e) by removing ``Part'' and adding in its place
``part'';
0
b. In paragraph (f) by removing ``Part'' and ``Section 2 CFR 200.330
Subrecipient and contractor determinations'' and adding in their places
``part'' and ``The provisions of 2 CFR 200.331, Subrecipient and
contractor determinations,'', respectively; and
0
c. In paragraph (h) by removing ``Part'' and ``2 CFR 200.331'' and
adding in their places ``part'' and ``2 CFR 200.332,''.
0
11. Section 910.502 is revised to read as follows:
Sec. 910.502 Basis for determining DOE awards expended.
(a) Determining Federal awards expended. The determination of when
a Federal award is expended must be based on when the activity related
to the DOE award occurs. Generally, the activity pertains to events
that require the non-Federal entity to comply with Federal statutes,
regulations, and the terms and conditions of DOE awards, such as:
Expenditure/expense transactions associated with awards including
grants, cost-reimbursement contracts under the FAR, compacts with
Indian Tribes, cooperative agreements, and direct appropriations; the
disbursement of funds to subrecipients; the use of loan proceeds under
loan and loan guarantee programs; the receipt of property; the receipt
of surplus property; the receipt or use of program income; the
distribution or use of food commodities; the disbursement of amounts
entitling the for-profit entity to an interest subsidy; and the period
when insurance is in force.
(b) Loan and loan guarantees (loans). Loan and loan guarantees
issued by the DOE Loan Program Office corresponding to Title XVII of
the Energy Policy Act of 2005, as amended, 42 U.S.C. 16511-16516
(``Title XVII'') are exempt from these provisions.
(1) Not applicable.
(2) Not applicable.
(3) Not applicable.
(c) Not applicable.
[[Page 15321]]
(d) Prior loan and loan guarantees (loans). See paragraph (b) of
this section.
(e) Endowment funds. The cumulative balance of DOE awards for
endowment funds that are federally restricted are considered DOE awards
expended in each audit period in which the funds are still restricted.
(f) Free rent. Free rent received by itself is not considered a DOE
award expended under this Part. However, free rent received as part of
a DOE award to carry out a DOE program must be included in determining
DOE awards expended and subject to audit under this part.
(g) Valuing non-cash assistance. DOE non-cash assistance, such as
free rent, food commodities, donated property, or donated surplus
property, must be valued at fair market value at the time of receipt or
the assessed value provided by DOE.
(h) Not applicable.
(i) Not applicable.
(j) Not applicable.
Sec. 910.505 [Amended]
0
12. Section 910.505 is amended by removing ``Part'' and ``2 CFR
200.338'' and adding in their places ``part'' and ``2 CFR 200.339,'',
respectively.
0
13. Section 910.507 is revised to read as follows:
Sec. 910.507 Compliance audits.
(a) Program-specific audit guide available. In some cases, a
program-specific audit guide will be available to provide specific
guidance to the auditor with respect to internal controls, compliance
requirements, suggested audit procedures, and audit reporting
requirements. A listing of current program-specific audit guides can be
found on the OMB website in the compliance supplement, in part 8,
appendix VI, Program-Specific Audit Guides, which includes a website
where a copy of the guide can be obtained. When a current program-
specific audit guide is available, the auditor must follow generally
accepted government auditing standards (GAGAS) and the guide when
performing a compliance audit.
(b) Program-specific audit guide not available. (1) When a program-
specific audit guide is not available, the auditee and auditor must
conduct the compliance audit in accordance with GAAS and GAGAS.
(2) If audited financial statements are available, for-profit
recipients should submit audited financial statements to DOE as a part
of the compliance audit. (If the recipient is a subsidiary for which
separate financial statements are not available, the recipient may
submit the financial statements of the consolidated group.)
(3) The auditor must:
(i) Not applicable;
(ii) Obtain an understanding of internal controls and perform tests
of internal controls over the DOE program consistent with the
requirements of Sec. 910.514 Scope of audit;
(iii) Perform procedures to determine whether the auditee has
complied with Federal statutes, regulations, and the terms and
conditions of DOE awards that could have a direct and material effect
on the DOE program consistent with the requirements of Sec. 910.514
Scope of audit;
(iv) Follow up on prior audit findings, perform procedures to
assess the reasonableness of the summary schedule of prior audit
findings prepared by the auditee in accordance with the requirements of
Sec. 910.511 Audit findings follow-up, and report, as a current year
audit finding, when the auditor concludes that the summary schedule of
prior audit findings materially misrepresents the status of any prior
audit finding; and
(v) Report any audit findings consistent with the requirements of
Sec. 910.516 Audit findings.
(4) The auditor's report(s) may be in the form of either combined
or separate reports and may be organized differently from the manner
presented in this section. The auditor's report(s) must state that the
audit was conducted in accordance with this part and include the
following:
(i) An opinion (or disclaimer of opinion) as to whether the
financial statement(s) (if available) of the DOE program is presented
fairly in all material respects in accordance with the stated
accounting policies;
(ii) A report on internal control related to the DOE program, which
must describe the scope of testing of internal control and the results
of the tests;
(iii) A report on compliance which includes an opinion (or
disclaimer of opinion) as to whether the auditee complied with laws,
regulations, and the terms and conditions of DOE awards which could
have a direct and material effect on the DOE program; and
(iv) A schedule of findings and questioned costs for the DOE
program that includes a summary of the auditor's results relative to
the DOE program in a format consistent with Sec. 910.515 Audit
reporting, paragraph (d)(1) and findings and questioned costs
consistent with the requirements of Sec. 910.515 Audit reporting,
paragraph (d)(3).
(c) Report submission for program-specific audits. (1) The audit
must be completed and the reporting required by paragraph (c)(2) or (3)
of this section submitted within the earlier of 30 calendar days after
receipt of the auditor's report(s), or nine months after the end of the
audit period, unless a different period is specified in a program-
specific audit guide. Unless restricted by Federal law or regulation,
the auditee must make report copies available for public inspection.
Auditees and auditors must ensure that their respective parts of the
reporting package do not include protected personally identifiable
information.
(2) When a program-specific audit guide is available, the
compliance audits must be submitted (along with audited financial
statements if audited financial statements are available), to the
appropriate DOE Contracting Officer as well as to the DOE Office of the
Chief Financial Officer.
(3) When a program-specific audit guide is not available, the
reporting package for a program-specific audit must consist of, a
summary schedule of prior audit findings, and a corrective action plan
as described in paragraph (b)(2) of this section, and the auditor's
report(s) described in paragraph (b)(4) of this section. The compliance
audit must be submitted (along with audited financial statements if
audited financial statements are available), to the appropriate DOE
Contracting Officer as well as to the DOE Office of the Chief Financial
Officer.
(d) Other sections of this part may apply. Compliance audits are
subject to:
(1) Section 910.500 Purpose through Sec. 910.503 Relation to other
audit requirements, paragraph (d);
(2) Section 910.504 Frequency of audits through Sec. 910.506 Audit
costs;
(3) Section 910.508 Auditee responsibilities and Sec. 910.509
Auditor selection;
(4) Section 910.511 Audit findings follow-up;
(5) Section 910.512 Report submission, paragraphs (e) through (h);
(6) Section 910.513 Responsibilities;
(7) Section 910.516 Audit findings and Sec. 910.517 Audit
documentation;
(8) Section 910.521 Management decision; and
(9) Other referenced provisions of this part unless contrary to the
provisions of this section, a program-specific audit guide, or program
statutes and regulations.
Sec. 910.513 [Amended]
0
14. Section 910.513 is amended:
0
a. In paragraph (c) introductory text by removing ``2 CFR 200.210'' and
adding in its place ``2 CFR 200.211''; and
[[Page 15322]]
0
b. In paragraph (c)(3)(iii) by removing ``2 CFR 200.25'' and adding in
its place ``2 CFR 200.1,''.
0
15. Section 910.514 is revised to read as follows:
Sec. 910.514 Scope of audit.
(a) General. The audit must be conducted in accordance with GAGAS.
The audit must cover the entire operations of the auditee, or, at the
option of the auditee, such audit must include a series of audits that
cover departments, agencies, and other organizational units that
expended or otherwise administered DOE awards during such audit period,
provided that each such audit must encompass the schedule of
expenditures of DOE awards for each such department, agency, and other
organizational unit, which must be considered to be a for-profit
entity. The financial statements (if available) and schedule of
expenditures of DOE awards must be for the same audit period.
(b) Financial statements. If financial statements are available,
the auditor must determine whether the schedule of expenditures of DOE
awards is stated fairly in all material respects in relation to the
auditee's financial statements as a whole.
(c) Internal control. (1) The compliance supplement provides
guidance on internal controls over Federal programs based upon the
guidance in Standards for Internal Control in the Federal Government
issued by the Comptroller General of the United States and the Internal
Control--Integrated Framework, issued by the Committee of Sponsoring
Organizations of the Treadway Commission (COSO).
(2) In addition to the requirements of GAGAS the auditor must
perform procedures to obtain an understanding of internal control over
DOE programs sufficient to plan the audit to support a low assessed
level of control risk of noncompliance for major programs.
(3) Except as provided in paragraph (c)(4) of this section, the
auditor must:
(i) Plan the testing of internal control over compliance to support
a low assessed level of control risk for the assertions relevant to the
compliance requirements; and
(ii) Perform testing of internal control as planned in paragraph
(c)(3)(i) of this section.
(4) When internal control over some or all of the compliance
requirements are likely to be ineffective in preventing or detecting
noncompliance, the planning and performing of testing described in
paragraph (c)(3) of this section are not required for those compliance
requirements. However, the auditor must report a significant deficiency
or material weakness in accordance with Sec. 910.516 Audit findings,
assess the related control risk at the maximum, and consider whether
additional compliance tests are required because of ineffective
internal control.
(d) Compliance. (1) In addition to the requirements of GAGAS, the
auditor must determine whether the auditee has complied with Federal
statutes, regulations, and the terms and conditions of Federal awards
that may have a direct and material effect.
(2) The principal compliance requirements applicable to most
Federal programs and the compliance requirements of the largest Federal
programs are included in the compliance supplement.
(3) For the compliance requirements related to Federal programs
contained in the compliance supplement, an audit of these compliance
requirements will meet the requirements of this part. Where there have
been changes to the compliance requirements and the changes are not
reflected in the compliance supplement, the auditor must determine the
current compliance requirements and modify the audit procedures
accordingly. For those Federal programs not covered in the compliance
supplement, the auditor should follow the compliance supplement's
guidance for programs not included in the supplement.
(4) The compliance testing must include tests of transactions and
such other auditing procedures necessary to provide the auditor
sufficient appropriate audit evidence to support an opinion on
compliance.
(e) Audit follow-up. The auditor must follow-up on prior audit
findings, perform procedures to assess the reasonableness of the
summary schedule of prior audit findings prepared by the auditee in
accordance with Sec. 910.511 Audit findings follow-up paragraph (b),
and report, as a current year audit finding, when the auditor concludes
that the summary schedule of prior audit findings materially
misrepresents the status of any prior audit finding. The auditor must
perform audit follow-up procedures.
(f) Not applicable.
0
16. Section 910.515 is revised to read as follows:
Sec. 910.515 Audit reporting.
The auditor's report(s) may be in the form of either combined or
separate reports and may be organized differently from the manner
presented in this section. The auditor's report(s) must state that the
audit was conducted in accordance with this part and include the
following:
(a) An opinion (or disclaimer of opinion) as to whether the
financial statements (if available) are presented fairly in all
material respects in accordance with generally accepted accounting
principles and an opinion (or disclaimer of opinion) as to whether the
schedule of expenditures of DOE awards is fairly stated in all material
respects in relation to the financial statements (if available) as a
whole.
(b) A report on internal control over financial reporting and
compliance with Federal statutes, regulations, and the terms and
conditions of the DOE award, noncompliance with which could have a
material effect on the financial statements. This report must describe
the scope of testing of internal control and compliance and the results
of the tests, and, where applicable, it will refer to the separate
schedule of findings and questioned costs described in paragraph (d) of
this section.
(c) A report on compliance and report and internal control over
compliance. This report must describe the scope of testing of internal
control over compliance, include an opinion or modified opinion as to
whether the auditee complied with Federal statutes, regulations, and
the terms and conditions of DOE awards which could have a direct and
material effect and refer to the separate schedule of findings and
questioned costs described in paragraph (d) of this section.
(d) A schedule of findings and questioned costs which must include
the following three components:
(1) A summary of the auditor's results, which must include:
(i) The type of report the auditor issued (if applicable) on
whether the financial statements (if available) audited were prepared
in accordance with GAAP (i.e., unmodified opinion, qualified opinion,
adverse opinion, or disclaimer of opinion);
(ii) Where applicable, a statement about whether significant
deficiencies or material weaknesses in internal control were disclosed
by the audit of the financial statements (if available);
(iii) A statement (if applicable) as to whether the audit disclosed
any noncompliance that is material to the financial statements (if
available) of the auditee;
(iv) Where applicable, a statement about whether significant
deficiencies or material weaknesses in internal control over major
programs were disclosed by the audit;
(v) The type of report the auditor issued on compliance (i.e.,
unmodified
[[Page 15323]]
opinion, qualified opinion, adverse opinion, or disclaimer of opinion);
(vi) A statement as to whether the audit disclosed any audit
findings that the auditor is required to report under Sec. 910.516
Audit findings, paragraph (a);
(vii) Not applicable.
(viii) Not applicable.
(ix) Not applicable.
(2) Findings relating to the financial Statements (if available)
which are required to be reported in accordance with GAGAS.
(3) Findings and questioned costs for DOE awards which must include
audit findings as defined in Sec. 910.516 Audit findings, paragraph
(a).
(i) Audit findings (e.g., internal control findings, compliance
findings, questioned costs, or fraud) that relate to the same issue
should be presented as a single audit finding.
(ii) Audit findings that relate to both the financial statements
(if available) and DOE awards, as reported under paragraphs (d)(2) and
(3) of this section, respectively, should be reported in both sections
of the schedule. However, the reporting in one section of the schedule
may be in summary form with a reference to a detailed reporting in the
other section of the schedule.
(e) Nothing in this part precludes combining of the audit reporting
required by this section with the reporting required by Sec. 910.512
Report submission, paragraph (b), when allowed by GAGAS.
0
17. Section 910.519 is revised to read as follows:
Sec. 910.519 Criteria for Federal program risk.
(a) General. The auditor's determination should be based on an
overall evaluation of the risk of noncompliance occurring that could be
material to the DOE program. The auditor must consider criteria, such
as described in paragraphs (b), (c), and (d) of this section, to
identify risk in Federal programs. Also, as part of the risk analysis,
the auditor may wish to discuss a particular DOE program with auditee
management and DOE.
(b) Current and prior audit experience. (1) Weaknesses in internal
control over DOE programs would indicate higher risk. Consideration
should be given to the control environment over DOE programs and such
factors as the expectation of management's adherence to Federal
statutes, regulations, and the terms and conditions of DOE awards and
the competence and experience of personnel who administer the DOE
programs.
(i) A DOE program administered under multiple internal control
structures may have higher risk. The auditor must consider whether
weaknesses are isolated in a single operating unit (e.g., one college
campus) or pervasive throughout the entity.
(ii) When significant parts of a DOE program are passed through to
subrecipients, a weak system for monitoring subrecipients would
indicate higher risk.
(2) Prior audit findings would indicate higher risk, particularly
when the situations identified in the audit findings could have a
significant impact on a DOE program or have not been corrected.
(3) DOE programs not recently audited as major programs may be of
higher risk than Federal programs recently audited as major programs
without audit findings.
(c) Oversight exercised by DOE. (1) Oversight exercised by DOE
could be used to assess risk. For example, recent monitoring or other
reviews performed by an oversight entity that disclosed no significant
problems would indicate lower risk, whereas monitoring that disclosed
significant problems would indicate higher risk.
(2) Federal agencies, with the concurrence of OMB, may identify
Federal programs that are higher risk. OMB will provide this
identification in the compliance supplement.
(d) Inherent risk of the Federal program. (1) The nature of a
Federal program may indicate risk. Consideration should be given to the
complexity of the program and the extent to which the Federal program
contracts for goods and services. For example, Federal programs that
disburse funds through third party contracts or have eligibility
criteria may be of higher risk. Federal programs primarily involving
staff payroll costs may have high risk for noncompliance with
requirements of 2 CFR 200.430 Compensation--personal services, but
otherwise be at low risk.
(2) The phase of a Federal program in its life cycle at the Federal
agency may indicate risk. For example, a new Federal program with new
or interim regulations may have higher risk than an established program
with time-tested regulations. Also, significant changes in Federal
programs, statutes, regulations, or the terms and conditions of Federal
awards may increase risk.
(3) The phase of a Federal program in its life cycle at the auditee
may indicate risk. For example, during the first and last years that an
auditee participates in a Federal program, the risk may be higher due
to start-up or closeout of program activities and staff.
(4) Programs with larger Federal awards expended would be of higher
risk than programs with substantially smaller Federal awards expended.
0
18. Section 910.520 is revised to read as follows:
Sec. 910.520 Criteria for a low-risk auditee.
An auditee that meets all of the following conditions for each of
the preceding two audit periods may qualify as a low-risk auditee and
be eligible for reduced audit coverage.
(a) Compliance audits were performed on an annual basis in
accordance with the provisions of this Subpart, including submitting
the data collection form to DOE within the timeframe specified in Sec.
910.512 Report submission. A for-profit entity that has biennial audits
does not qualify as a low-risk auditee.
(b) The auditor's opinion on whether the financial statements (if
available) were prepared in accordance with GAAP, or a basis of
accounting required by state law, and the auditor's in relation to
opinion on the schedule of expenditures of DOE awards were unmodified.
(c) There were no deficiencies in internal control which were
identified as material weaknesses under the requirements of GAGAS.
(d) The auditor did not report a substantial doubt about the
auditee's ability to continue as a going concern.
(e) None of the DOE programs had audit findings from any of the
following in either of the preceding two audit periods:
(1) Internal control deficiencies that were identified as material
weaknesses in the auditor's report on internal control as required
under Sec. 910.515 Audit reporting, paragraph (c);
(2) Not applicable.
(3) Not applicable.
[FR Doc. 2022-04240 Filed 3-17-22; 8:45 am]
BILLING CODE 6450-01-P