80_FR_53406 80 FR 53235 - Administrative Requirements for Grants and Cooperative Agreements

80 FR 53235 - Administrative Requirements for Grants and Cooperative Agreements

DEPARTMENT OF ENERGY

Federal Register Volume 80, Issue 171 (September 3, 2015)

Page Range53235-53240
FR Document2015-21693

The Department of Energy (DOE) is adopting, a rule amending the administrative requirements for grants and cooperative agreements with for-profit organizations. The regulations modify title provisions, and requirements related to the handling of real property and equipment acquired with federal funds. The regulations also add provisions related to export control requirements and supporting U.S. manufacturing, reporting on utilization of subject inventions, novation of financial assistance agreements, and changes of control of recipients.

Federal Register, Volume 80 Issue 171 (Thursday, September 3, 2015)
[Federal Register Volume 80, Number 171 (Thursday, September 3, 2015)]
[Rules and Regulations]
[Pages 53235-53240]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-21693]



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Federal Register / Vol. 80, No. 171 / Thursday, September 3, 2015 / 
Rules and Regulations

[[Page 53235]]



DEPARTMENT OF ENERGY

2 CFR Part 910

RIN 1991-AC02


Administrative Requirements for Grants and Cooperative Agreements

AGENCY: Department of Energy.

ACTION: Final rule.

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

SUMMARY: The Department of Energy (DOE) is adopting, a rule amending 
the administrative requirements for grants and cooperative agreements 
with for-profit organizations. The regulations modify title provisions, 
and requirements related to the handling of real property and equipment 
acquired with federal funds. The regulations also add provisions 
related to export control requirements and supporting U.S. 
manufacturing, reporting on utilization of subject inventions, novation 
of financial assistance agreements, and changes of control of 
recipients.

DATES: Effective: October 5, 2015.

FOR FURTHER INFORMATION CONTACT: Ellen Colligan, Procurement Analyst, 
U.S. Department of Energy, Office of Acquisition Management, Contract 
and Financial Assistance Policy Division MA-611, Telephone: (202) 287-
1776. Email: [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Summary
II. Procedural Requirements
    A. Review under Executive Order 12866
    B. Review under Executive Order 12988
    C. Review under the Regulatory Flexibility Act
    D. Review under the Paperwork Reduction Act
    E. Review under the National Environmental Policy Act
    F. Review under Executive Order 13132
    G. Review under the Unfunded Mandates Reform Act of 1995
    H. Review under the Treasury and General Government 
Appropriations Act, 1999
    I. Review under Executive Order 13211
    J. Review under the Treasury and General Government 
Appropriations Act, 2001
    K. Review under Executive Order 13609
    L. Approval by the Office of the Secretary of Energy
    M. Congressional Notification

I. Summary

    The Department makes substantial use of financial assistance awards 
(grants and cooperative agreements) to for-profit organizations to meet 
its mission goals. To manage these awards, the Department added 
requirements specifying changes and additions to its Uniform 
Administrative Requirements, Cost Principles, and Audit Requirements 
for Federal Awards. On May 15, 2014, a Notice of Proposed Rulemaking 
(NOPR) was published in the Federal Register (79 FR 27795) that 
detailed changes to the rules for for-profit recipients.
    DOE is amending the rule by adding provisions concerning: (1) The 
Department's title to and interest in property purchased by financial 
assistance recipients with Federal funds; (2) the Department's ability 
to monitor and control the use of Federal funds, property purchased 
with those funds, and any intellectual property developed with such 
funds; (3) the related issues of novation (that is, the transfer of a 
financial assistance agreement from one recipient entity to another) 
and of change of control of a recipient (that is, a transfer of control 
of the recipient entity from one individual, group of individuals or 
entity, to another); (4) reporting by recipients regarding the 
utilization of inventions developed with Federal funds; and (5) export 
controls applicable to inventions and technology developed with Federal 
funds, and support for U.S. manufacturing of inventions and technology 
developed with Federal funds.
    DOE received no comments from members of the public in response to 
the NOPR. Nevertheless, DOE made the following technical changes to the 
text of the rule to address the codification of the Uniform 
Administrative Requirements, Cost Principles and Audit Requirements for 
Federal Awards at 2 CFR part 200 and the relocation of the Department's 
Administrative Requirements for Grants and Cooperative Agreements from 
10 CFR part 600 to 2 CFR part 910 (79 FR 76024). As a result, the 
regulatory text proposed as amendments to part 600 are adopted 
unchanged as amendments to part 910.
    (1) The text proposed as Sec.  600.304 is renumbered and adopted as 
Sec.  910.372.
    (2) The text proposed as Sec.  600.321 is renumbered and adopted as 
Sec.  910.360.
    (3) The text proposed as Sec.  600.326 is renumbered and adopted as 
Sec.  910.364.
    (4) The text proposed as Sec.  600.327 is renumbered and adopted as 
Sec.  910.366.
    (5) The text proposed as Sec.  600.354 is renumbered and adopted as 
Sec.  910.368.
    (6) The text proposed as Sec.  600.355 is renumbered and adopted as 
Sec.  910.370.

III. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    Today's regulatory action has been determined to be a ``significant 
regulatory action'' under Executive Order 12866, ``Regulatory Planning 
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this rule was 
reviewed by the Office of Information and Regulatory Affairs within the 
Office of Management and Budget.
    DOE has also reviewed this regulation pursuant to Executive Order 
13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). 
Executive Order 13563 is supplemental to, and explicitly reaffirms the 
principles, structures, and definitions governing, regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
agencies are required by Executive Order 13563 to: (1) Propose or adopt 
a regulation only upon a reasoned determination that its benefits 
justify its costs (recognizing that some benefits and costs are 
difficult to quantify); (2) tailor regulations to impose the least 
burden on society, consistent with obtaining regulatory objectives, 
taking into account, among other things, and to the extent practicable, 
the costs of cumulative regulations; (3) select, in choosing among 
alternative regulatory approaches, those approaches that maximize net 
benefits (including potential economic, environmental, public health 
and safety, and other advantages; distributive impacts; and equity); 
(4) to the extent feasible, specify performance objectives, rather than 
specifying the behavior or manner of compliance that regulated entities 
must adopt; and (5) identify and assess available alternatives to 
direct

[[Page 53236]]

regulation, including providing economic incentives to encourage the 
desired behavior, such as user fees or marketable permits, or providing 
information upon which choices can be made by the public.
    DOE emphasizes as well that Executive Order 13563 requires agencies 
to use the best available techniques to quantify anticipated present 
and future benefits and costs as accurately as possible. In its 
guidance, the Office of Information and Regulatory Affairs has 
emphasized that such techniques may include identifying changing future 
compliance costs that might result from technological innovation or 
anticipated behavioral changes. DOE believes that today's Final Rule is 
consistent with these principles, including the requirement that, to 
the extent permitted by law, agencies adopt a regulation only upon a 
reasoned determination that its benefits justify its costs and, in 
choosing among alternative regulatory approaches, those approaches 
maximize net benefits.

B. Review Under Executive Order 12988

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

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of a regulatory flexibility analysis for any rule that by 
law must be proposed for public comment, unless the agency certifies 
that the rule, if promulgated, will not have a significant economic 
impact on a substantial number of small entities. This rule will not 
have a significant impact on small entities as it applies to only for-
profit entities (excluding small non-profits, individuals or other 
small entities not set up as a for-profit.) This rule also excludes 
small for-profit entities receiving awards through SBIR and STTR 
programs from many requirements. Historically the awards made by DOE 
under Subchapter D are to businesses considered large in their industry 
or field. Accordingly, DOE certifies that this rule would not have a 
significant economic impact on a substantial number of small entities, 
and, therefore, no regulatory flexibility analysis has been prepared.

D. Review Under the Paperwork Reduction Act

    This rule would require the preparation and submission of a UCC 
financing statement for awards where the Federal share exceeds $1 
million. This collection of information is required for the Department 
to protect the taxpayers by clarifying the rights to real property and 
equipment purchased under financial assistance awards.
    The collection of information for DOE financial assistance awards 
has been approved by OMB under control number 1910-0400. Collection of 
the UCC-1 form is covered by this control number.

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule falls into a class 
of actions which would not individually or cumulatively have 
significant impact on the human environment, as determined by DOE's 
regulations (10 CFR part 1021, subpart D) implementing the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). 
Specifically, this rule is categorically excluded from NEPA review 
because the amendments to the DEAR are strictly procedural (categorical 
exclusion A6). Therefore, this rule does not require an environmental 
impact statement or environmental assessment pursuant to NEPA.

F. Review Under Executive Order 13132

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

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires a Federal agency to perform a detailed assessment of costs and 
benefits of any rule imposing a Federal Mandate with costs to State, 
local or tribal governments, or to the private sector, of $100 million 
or more. This rulemaking does not impose a Federal mandate on State, 
local or tribal governments or on the private sector.

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

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

I. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'', 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgates or is expected to lead to 
promulgation of a Final Rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any

[[Page 53237]]

successor order; and (2) is likely to have a significant adverse effect 
on the supply, distribution, or use of energy, or (3) is designated by 
the Administrator of OIRA as a significant energy action. For any 
proposed significant energy action, the agency must give a detailed 
statement of any adverse effects on energy supply, distribution or use 
should the proposal be implemented, and of reasonable alternatives to 
the action and their expected benefits on energy supply, distribution 
and use. Today's rule is not a significant energy action. Accordingly, 
DOE has not prepared a Statement of Energy Effects.

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

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

K. Review Under Executive Order 13609

    Executive Order 13609 of May 1, 2012, ``Promoting International 
Regulatory Cooperation,'' requires that, to the extent permitted by law 
and consistent with the principles and requirements of Executive Order 
13563 and Executive Order 12866, each Federal agency shall:
    (a) If required to submit a Regulatory Plan pursuant to Executive 
Order 12866, include in that plan a summary of its international 
regulatory cooperation activities that are reasonably anticipated to 
lead to significant regulations, with an explanation of how these 
activities advance the purposes of Executive Order 13563 and this 
order;
    (b) Ensure that significant regulations that the agency identifies 
as having significant international impacts are designated as such in 
the Unified Agenda of Federal Regulatory and Deregulatory Actions, on 
RegInfo.gov, and on Regulations.gov;
    (c) In selecting which regulations to include in its retrospective 
review plan, as required by Executive Order 13563, consider:
    (i) Reforms to existing significant regulations that address 
unnecessary differences in regulatory requirements between the United 
States and its major trading partners, consistent with section 1 of 
this order, when stakeholders provide adequate information to the 
agency establishing that the differences are unnecessary; and
    (ii) Such reforms in other circumstances as the agency deems 
appropriate; and
    (d) For significant regulations that the agency identifies as 
having significant international impacts, consider, to the extent 
feasible, appropriate, and consistent with law, any regulatory 
approaches by a foreign government that the United States has agreed to 
consider under a regulatory cooperation council work plan.
    DOE has reviewed this rule under the provisions of Executive Order 
13609 and determined that the rule complies with all requirements set 
forth in the order.

L. Approval by the Office of the Secretary of Energy

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

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects in 2 CFR Part 910

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

    Issued in Washington, DC, on: August 21, 2015.
Patrick M. Ferraro
Director, Office of Acquisition Management.
Joseph F. Waddell,
Director, Office of Acquisition Management, National Nuclear Security 
Administration.

    For the reasons stated in the preamble, the Department of Energy is 
amending part 910 of chapter II, title 2 of the Code of Federal 
Regulations to read as follows:

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

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

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


0
2. Revise Sec.  910.360 to read as follows:


Sec.  910.360  Real property and equipment.

    (a) Prior approvals for acquisition with Federal funds. Recipients 
may purchase real property or equipment with an acquisition cost per 
unit of $5,000 or more in whole or in part with Federal funds only with 
the prior written approval of the contracting officer or in accordance 
with express award terms.
    (b) Title. Unless a statute specifically authorizes and the award 
specifies that title to property vests unconditionally in the 
recipient, title to real property or equipment vests in the recipient, 
subject to all terms and conditions of the award and that the recipient 
shall:
    (1) Use the real property or equipment for the authorized purposes 
of the project until funding for the project ceases, or until the real 
property or equipment is no longer needed for the purposes of the 
project, as may be determined by the contracting officer;
    (2) Not encumber or permit any encumbrance on the real property or 
equipment without the prior written approval of the contracting 
officer;
    (3) Use and dispose of the real property or equipment in accordance 
with paragraphs (e), (f), and (g) of this section; and
    (4) Properly record, and consent to the Department's ability to 
properly record if the recipient fails to do so, UCC financing 
statement(s) for all equipment purchased with Federal funds (Financial 
assistance awards made under the Small Business Innovation Research/
Small Business Technology Transfer (SBIR/STTR) program are exempt from 
this requirement unless otherwise specified within the grant 
agreement); such a filing is required when the Federal share of the 
financial assistance agreement is more than $1,000,000, and the 
Contracting Officer may require it in his or her discretion when the 
Federal share is less than $1,000,000. These financing statement(s) 
must be approved in writing by the contracting officer prior to the 
recording, and they shall provide notice that the recipient's title to 
all equipment (not real property) purchased with Federal funds under 
the financial assistance agreement is conditional pursuant to the terms 
of this section, and that the Government retains an undivided 
reversionary interest in the equipment. The UCC financing statement(s) 
must be filed before the contracting officer may reimburse the 
recipient for the Federal share of the equipment unless otherwise 
provided for in the relevant financial assistance agreement. The 
recipient shall further make any amendments to the financing statements 
or additional recordings,

[[Page 53238]]

including appropriate continuation statements, as necessary or as the 
contracting officer may direct.
    (c) Remedies. If the recipient fails at any time to comply with any 
of the conditions or requirements of paragraph (b) of this section, 
then the contracting officer may:
    (1) Notify the recipient of noncompliance in accordance with 2 CFR 
200.338, which may lead to suspension or termination of the award;
    (2) Impose special award conditions pursuant to 2 CFR 200.205 and 
200.207 as amended by 2 CFR 910.372;
    (3) Issue instructions to the recipient for disposition of the 
property in accordance with paragraph (g) of this section;
    (4) In the case of a failure to properly record UCC financing 
statement(s) in accordance with paragraph (b)(4) of this section, 
effect such a recording; and
    (5) Apply other remedies that may be legally available.
    (d) Title to and Federal interest in real property or equipment 
offered as cost-share. As provided in 2 CFR 200.306(h), depending upon 
the purpose of the Federal award, a recipient may offer the fair market 
value of real property or equipment that is purchased with recipient's 
funds or that is donated by a third party to meet a portion of any 
required cost sharing or matching. If a resulting award includes such 
property as a portion of the recipient's cost share, the recipient 
holds conditional title to the property and the Government has an 
undivided reversionary interest in the share of the property value 
equal to the Federal participation in the project. The property is 
treated as if it had been acquired in part with Federal funds, and is 
subject to the provisions of paragraph (b) of this section and to the 
provisions of 2 CFR 200.311 and 200.313.
    (e) Insurance. Recipients must, at a minimum, provide the 
equivalent insurance coverage for real property and equipment acquired 
with Federal funds as provided to property owned by the recipient.
    (f) Additional uses during and after the project period. Unless a 
statute and the award terms expressly provide for the vesting of 
unconditional title to real property or equipment with the recipient, 
the real property or equipment acquired wholly or in part with Federal 
funds is subject to the following:
    (1) During the Project Period, the recipient must make real 
property and equipment available for use on other projects or programs, 
if such other use does not interfere with the work on the project or 
program for which the real property or equipment was originally 
acquired. Use of the real property or equipment on other projects is 
subject to the following order of priority:
    (i) Activities sponsored by DOE grants, cooperative agreements, or 
other assistance awards;
    (ii) Activities sponsored by other Federal agencies' grants, 
cooperative agreements, or other assistance awards;
    (iii) Activities under Federal procurement contracts or activities 
not sponsored by any Federal agency. If so used, use charges must be 
assessed to those activities. For real property or equipment, the use 
charges must be at rates equivalent to those for which comparable real 
property or equipment may be leased.
    (2) After Federal funding for the project ceases, or if, as may be 
determined by the contracting officer, the real property or equipment 
is no longer needed for the purposes of the project, or if the 
recipient suspends work on the project, the recipient may use the real 
property or equipment for other projects, if:
    (i) There are Federally sponsored projects for which the real 
property or equipment may be used;
    (ii) The recipient obtains written approval from the contracting 
officer to do so. The contracting officer must ensure that there is a 
formal change of accountability for the real property or equipment to a 
currently funded Federal award; and
    (iii) The recipient's use of the real property or equipment for 
other projects is in the same order of priority as described in 
paragraph (e)(1) of this section.
    (iv) If the only use for the real property or equipment is for 
projects that have no Federal sponsorship, the recipient must proceed 
with disposition of the real property or equipment in accordance with 
paragraph (g) of this section.
    (g) Disposition. (1) If, as determined by the contracting officer, 
an item of real property or equipment is no longer needed for Federally 
sponsored projects, or if the recipient has suspended work on the 
project, the recipient has the following options:
    (i) If the property is equipment with a current per unit fair 
market value of less than $5,000, it may be retained, sold, or 
otherwise disposed of with no further obligation to DOE.
    (ii) If the property is equipment (rather than real property) and 
with the written approval of the contracting officer, the recipient may 
replace it with an item that is needed currently for the project by 
trading in or selling to offset the costs of the replacement equipment.
    (iii) The recipient may elect to retain title, without further 
obligation to the Federal Government, by compensating the Federal 
Government for that percentage of the current fair market value of the 
real property or equipment that is attributable to the Federal 
participation in the project.
    (iv) If the recipient does not elect to retain title to real 
property or equipment or does not request approval to use equipment as 
trade-in or offset for replacement equipment, the recipient must 
request disposition instructions from the responsible agency.
    (2) If a recipient requests disposition instructions, the 
contracting officer must:
    (i) For either real property or equipment, issue instructions to 
the recipient for disposition of the property no later than 120 
calendar days after the recipient's request. The contracting officer's 
options for disposition are to direct the recipient to:
    (A) Transfer title to the real property or equipment to the Federal 
Government or to a third party designated by the contracting officer 
provided that, in such cases, the recipient is entitled to compensation 
for its attributable percentage of the current fair market value of the 
real property or equipment, plus any reasonable shipping or interim 
storage costs incurred; or
    (B) Sell the real property or equipment and pay the Federal 
Government for that percentage of the current fair market value of the 
property that is attributable to the Federal participation in the 
project (after deducting actual and reasonable selling and fix-up 
expenses, if any, from the sale proceeds). If the recipient is 
authorized or required to sell the real property or equipment, the 
recipient must use competitive procedures that result in the highest 
practicable return.
    (3) If the contracting officer fails to issue disposition 
instructions within 120 calendar days of the recipient's request, the 
recipient must dispose of the real property or equipment through the 
option described in paragraph (g)(2)(i)(B) of this section.

0
3. Add Sec.  910.364 to subpart D to read as follows:


Sec.  910.364  Reporting on utilization of subject inventions.

    (a) Unless otherwise instructed, a recipient that obtains title to 
an invention made under an award shall submit annual reports on the 
utilization or efforts to obtain utilization of the invention for at 
least 10 years from the date the invention was first disclosed to DOE 
(Utilization Reports). Utilization

[[Page 53239]]

Reports shall include at least the following information:
    (1) Status of development;
    (2) Date of first commercial sale or use;
    (3) Gross royalties received by the recipient;
    (4) The location of any manufacture of products embodying the 
subject invention; and
    (5) Any such other data and information as DOE may reasonably 
specify.
    (b) To the extent data or information supplied in a Utilization 
Report is considered by the recipient to be privileged and confidential 
and is so marked by the recipient, DOE agrees that, to the extent 
permitted by law, it shall not disclose such information to persons 
outside the Government.

0
4. Add Sec.  910.366 to subpart D to read as follows:


Sec.  910.366  Export Control and U.S. Manufacturing and 
Competitiveness.

    (a) Export Control. Any recipient of any award for research, 
development and/or demonstration must comply with all applicable U.S. 
laws regarding export control.
    (b) U.S. Manufacturing and Competitiveness. It is the policy of DOE 
to ensure that DOE-funded research, development, and/or demonstration 
projects foster domestic manufacturing. Funding opportunity 
announcements (FOAs), therefore, may require that applicants submit a 
``U.S. Manufacturing Plan'' in their applications. Such FOAs may 
encourage U.S. Manufacturing Plans to include proposals by recipients 
and any sub-recipients to manufacture DOE-funded technologies in the 
United States; however, the FOAs will also state that these plans 
should not include requirements regarding the source of inputs used 
during the manufacturing process. Regardless of whether such plans will 
be part of the merit review criteria or a program policy factor, and to 
the extent legally permissible, all awards subject to this subpart, 
including subawards, for research, development, and/or demonstration, 
must include a provision that provides plans by the recipient and any 
subrecipients to support manufacturing in the United States of 
technology developed under the award. The recipient and any 
subrecipients must agree to make those plans binding on any assignee or 
licensee or any entity otherwise acquiring rights to any subject 
invention or developed technology covered under the award. A recipient, 
subrecipient, assignee, licensee, or any entity otherwise acquiring the 
rights to any subject invention or developed technology may request a 
waiver or modification of U.S. manufacturing plans from DOE. DOE will 
determine whether to approve such a waiver in light of equitable 
considerations, including, for example, whether the requester 
satisfactorily shows that the planned support is not economically 
feasible and whether there is a satisfactory alternative net benefit to 
the U.S. economy if the requested waiver or modification is approved.

0
5. Add Sec.  910.368 to subpart D to read as follows:


Sec.  910.368  Change of control.

    (a) Change of control is defined as any of the following:
    (1) Any event by which any individual or entity other than the 
recipient becomes the beneficial owner of more than 50% of the total 
voting power of the voting stock of the recipient;
    (2) The recipient merges with or into any entity other than in a 
transaction in which the shares of the recipient's voting stock are 
converted into a majority of the voting stock of the surviving entity;
    (3) The sale, lease or transfer of all or substantially all of the 
assets of the recipient to any individual or entity other than the 
recipient in one or a series of related transactions;
    (4) The adoption of a plan relating to the liquidation or 
dissolution of the recipient; or
    (5) Where the recipient is a wholly-owned subsidiary at the time of 
award or novation, and the recipient's parent entity undergoes a change 
of control as defined in this section.
    (b) When the Federal share of the financial assistance agreement is 
more than $10,000,000 or DOE requests the information in writing, the 
recipient must provide the contracting officer with documentation 
identifying all parties who exercise control in the recipient at the 
time of award.
    (c) When there is a change of control of a recipient, or the 
recipient has reason to know a change of control is likely, the 
recipient must notify the contracting officer within 30 days of its 
knowledge of such change of control. Such notification must include, at 
a minimum, copies of documents necessary to reflect the transaction 
that resulted or will result in the change of control, and 
identification of all entities, individuals or other parties to such 
transaction. Failure to notify the contracting officer of a change of 
control is grounds for suspension or termination of the award for 
failure to comply with the terms and conditions of the award.
    (d) The contracting officer must authorize a change of control for 
the purposes of the award. Failure to receive the contracting officer's 
authorization for a change of control may lead to a suspension of the 
award, termination for failure to comply with the terms and conditions 
of the award, or imposition of special award conditions pursuant to 2 
CFR 910.372. Special award conditions may include but are not limited 
to:
    (1) Additional reporting requirements related to the change of 
control; and
    (2) Suspension of payments due to the recipient.

0
6. Add Sec.  910.370 to subpart D to read as follows:


Sec.  910.370  Novation of financial assistance agreements.

    (a) Financial assistance agreements are not assignable absent 
written consent from the contracting officer. At his or her sole 
discretion, the contracting officer may, through novation, recognize a 
third party as the successor in interest to a financial assistance 
agreement if such recognition is in the Government's interest, conforms 
with all applicable laws and the third party's interest in the 
agreement arises out of the transfer of:
    (1) All of the recipient's assets; or
    (2) The entire portion of the assets necessary to perform the 
project described in the agreement.
    (b) When the contracting officer determines that it is not in the 
Government's interest to consent to the novation of a financial 
assistance agreement from the original recipient to a third party, the 
original recipient remains subject to the terms of the financial 
assistance agreement, and the Department may exercise all legally 
available remedies under 2 CFR 200.338 through 200.342, or that may be 
otherwise available, should the original recipient not perform.
    (c) The contracting officer may require submission of any 
documentation in support of a request for novation, including but not 
limited to documents identified in 48 CFR Subpart 42.12. The 
contracting officer may use the format in 48 CFR 42.1204 as guidance 
for novation agreements identified in paragraph (a) of this section.

0
7. Add Sec.  910.372 to subpart D to read as follows:


Sec.  910.372  Special award conditions.

    (a) In addition to the requirements of 2 CFR 200.205, the following 
actions may require the use of Specific Conditions as identified in 2 
CFR 200.207:

[[Page 53240]]

    (1) Has not conformed to the terms and conditions of a previous 
award;
    (2) Has a change of control as defined in Sec.  910.368;
    (3) Fails to comply with real property and equipment requirements 
at Sec.  910.360; or
    (4) Is not otherwise responsible.

[FR Doc. 2015-21693 Filed 9-2-15; 8:45 am]
BILLING CODE 6450-01-P



                                                                                                                                                                                               53235

                                             Rules and Regulations                                                                                         Federal Register
                                                                                                                                                           Vol. 80, No. 171

                                                                                                                                                           Thursday, September 3, 2015



                                             This section of the FEDERAL REGISTER                      I. Review under Executive Order 13211               76024). As a result, the regulatory text
                                             contains regulatory documents having general              J. Review under the Treasury and General            proposed as amendments to part 600 are
                                             applicability and legal effect, most of which                Government Appropriations Act, 2001              adopted unchanged as amendments to
                                             are keyed to and codified in the Code of                  K. Review under Executive Order 13609               part 910.
                                             Federal Regulations, which is published under             L. Approval by the Office of the Secretary
                                                                                                                                                             (1) The text proposed as § 600.304 is
                                             50 titles pursuant to 44 U.S.C. 1510.                        of Energy
                                                                                                       M. Congressional Notification                       renumbered and adopted as § 910.372.
                                             The Code of Federal Regulations is sold by                                                                      (2) The text proposed as § 600.321 is
                                             the Superintendent of Documents. Prices of              I. Summary                                            renumbered and adopted as § 910.360.
                                             new books are listed in the first FEDERAL                  The Department makes substantial                     (3) The text proposed as § 600.326 is
                                             REGISTER issue of each week.                            use of financial assistance awards                    renumbered and adopted as § 910.364.
                                                                                                     (grants and cooperative agreements) to                  (4) The text proposed as § 600.327 is
                                                                                                     for-profit organizations to meet its                  renumbered and adopted as § 910.366.
                                             DEPARTMENT OF ENERGY                                    mission goals. To manage these awards,                  (5) The text proposed as § 600.354 is
                                                                                                     the Department added requirements                     renumbered and adopted as § 910.368.
                                             2 CFR Part 910                                                                                                  (6) The text proposed as § 600.355 is
                                                                                                     specifying changes and additions to its
                                             RIN 1991–AC02                                           Uniform Administrative Requirements,                  renumbered and adopted as § 910.370.
                                                                                                     Cost Principles, and Audit                            III. Procedural Requirements
                                             Administrative Requirements for                         Requirements for Federal Awards. On
                                             Grants and Cooperative Agreements                       May 15, 2014, a Notice of Proposed                    A. Review Under Executive Orders
                                                                                                     Rulemaking (NOPR) was published in                    12866 and 13563
                                             AGENCY:    Department of Energy.
                                             ACTION:   Final rule.                                   the Federal Register (79 FR 27795) that                  Today’s regulatory action has been
                                                                                                     detailed changes to the rules for for-                determined to be a ‘‘significant
                                             SUMMARY:   The Department of Energy                     profit recipients.                                    regulatory action’’ under Executive
                                             (DOE) is adopting, a rule amending the                     DOE is amending the rule by adding                 Order 12866, ‘‘Regulatory Planning and
                                             administrative requirements for grants                  provisions concerning: (1) The                        Review,’’ 58 FR 51735 (October 4, 1993).
                                             and cooperative agreements with for-                    Department’s title to and interest in                 Accordingly, this rule was reviewed by
                                             profit organizations. The regulations                   property purchased by financial                       the Office of Information and Regulatory
                                             modify title provisions, and                            assistance recipients with Federal                    Affairs within the Office of Management
                                             requirements related to the handling of                 funds; (2) the Department’s ability to                and Budget.
                                             real property and equipment acquired                    monitor and control the use of Federal                   DOE has also reviewed this regulation
                                             with federal funds. The regulations also                funds, property purchased with those                  pursuant to Executive Order 13563,
                                             add provisions related to export control                funds, and any intellectual property                  issued on January 18, 2011 (76 FR 3281
                                             requirements and supporting U.S.                        developed with such funds; (3) the                    (Jan. 21, 2011)). Executive Order 13563
                                             manufacturing, reporting on utilization                 related issues of novation (that is, the              is supplemental to, and explicitly
                                             of subject inventions, novation of                      transfer of a financial assistance                    reaffirms the principles, structures, and
                                             financial assistance agreements, and                    agreement from one recipient entity to                definitions governing, regulatory review
                                             changes of control of recipients.                       another) and of change of control of a                established in Executive Order 12866.
                                             DATES: Effective: October 5, 2015.                      recipient (that is, a transfer of control of          To the extent permitted by law, agencies
                                             FOR FURTHER INFORMATION CONTACT:                        the recipient entity from one individual,             are required by Executive Order 13563
                                             Ellen Colligan, Procurement Analyst,                    group of individuals or entity, to                    to: (1) Propose or adopt a regulation
                                             U.S. Department of Energy, Office of                    another); (4) reporting by recipients                 only upon a reasoned determination
                                             Acquisition Management, Contract and                    regarding the utilization of inventions               that its benefits justify its costs
                                             Financial Assistance Policy Division                    developed with Federal funds; and (5)                 (recognizing that some benefits and
                                             MA–611, Telephone: (202) 287–1776.                      export controls applicable to inventions              costs are difficult to quantify); (2) tailor
                                             Email: ellen.colligan@hq.doe.gov.                       and technology developed with Federal                 regulations to impose the least burden
                                                                                                     funds, and support for U.S.                           on society, consistent with obtaining
                                             SUPPLEMENTARY INFORMATION:
                                                                                                     manufacturing of inventions and                       regulatory objectives, taking into
                                             Table of Contents                                       technology developed with Federal                     account, among other things, and to the
                                             I. Summary                                              funds.                                                extent practicable, the costs of
                                             II. Procedural Requirements                                DOE received no comments from                      cumulative regulations; (3) select, in
                                                A. Review under Executive Order 12866                members of the public in response to                  choosing among alternative regulatory
                                                B. Review under Executive Order 12988                the NOPR. Nevertheless, DOE made the                  approaches, those approaches that
                                                C. Review under the Regulatory Flexibility           following technical changes to the text               maximize net benefits (including
                                                  Act                                                of the rule to address the codification of            potential economic, environmental,
                                                D. Review under the Paperwork Reduction              the Uniform Administrative                            public health and safety, and other
                                                  Act                                                Requirements, Cost Principles and                     advantages; distributive impacts; and
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                                                E. Review under the National                         Audit Requirements for Federal Awards                 equity); (4) to the extent feasible, specify
                                                  Environmental Policy Act
                                                F. Review under Executive Order 13132
                                                                                                     at 2 CFR part 200 and the relocation of               performance objectives, rather than
                                                G. Review under the Unfunded Mandates                the Department’s Administrative                       specifying the behavior or manner of
                                                  Reform Act of 1995                                 Requirements for Grants and                           compliance that regulated entities must
                                                H. Review under the Treasury and General             Cooperative Agreements from 10 CFR                    adopt; and (5) identify and assess
                                                  Government Appropriations Act, 1999                part 600 to 2 CFR part 910 (79 FR                     available alternatives to direct


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                                             53236            Federal Register / Vol. 80, No. 171 / Thursday, September 3, 2015 / Rules and Regulations

                                             regulation, including providing                         regulations meet the relevant standards               F. Review Under Executive Order 13132
                                             economic incentives to encourage the                    of Executive Order 12988.                                Executive Order 13132, 64 FR 43255
                                             desired behavior, such as user fees or                                                                        (August 4, 1999), imposes certain
                                                                                                     C. Review Under the Regulatory
                                             marketable permits, or providing                                                                              requirements on agencies formulating
                                                                                                     Flexibility Act
                                             information upon which choices can be                                                                         and implementing policies or
                                             made by the public.                                       The Regulatory Flexibility Act (5
                                                                                                                                                           regulations that preempt State law or
                                               DOE emphasizes as well that                           U.S.C. 601 et seq.) requires preparation
                                                                                                                                                           that have federalism implications.
                                             Executive Order 13563 requires agencies                 of a regulatory flexibility analysis for
                                                                                                                                                           Agencies are required to examine the
                                             to use the best available techniques to                 any rule that by law must be proposed
                                                                                                                                                           constitutional and statutory authority
                                             quantify anticipated present and future                 for public comment, unless the agency
                                                                                                                                                           supporting any action that would limit
                                             benefits and costs as accurately as                     certifies that the rule, if promulgated,
                                                                                                                                                           the policymaking discretion of the
                                             possible. In its guidance, the Office of                will not have a significant economic
                                                                                                                                                           States and carefully assess the necessity
                                             Information and Regulatory Affairs has                  impact on a substantial number of small
                                                                                                                                                           for such actions. DOE has examined
                                             emphasized that such techniques may                     entities. This rule will not have a
                                                                                                                                                           today’s rule and has determined that it
                                             include identifying changing future                     significant impact on small entities as it
                                                                                                                                                           does not preempt State law and does not
                                             compliance costs that might result from                 applies to only for-profit entities
                                                                                                                                                           have a substantial direct effect on the
                                             technological innovation or anticipated                 (excluding small non-profits,
                                                                                                                                                           States, on the relationship between the
                                             behavioral changes. DOE believes that                   individuals or other small entities not
                                                                                                                                                           national government and the States, or
                                             today’s Final Rule is consistent with                   set up as a for-profit.) This rule also
                                                                                                                                                           on the distribution of power and
                                             these principles, including the                         excludes small for-profit entities
                                                                                                                                                           responsibilities among the various
                                             requirement that, to the extent                         receiving awards through SBIR and                     levels of government. No further action
                                             permitted by law, agencies adopt a                      STTR programs from many                               is required by Executive Order 13132.
                                             regulation only upon a reasoned                         requirements. Historically the awards
                                             determination that its benefits justify its             made by DOE under Subchapter D are                    G. Review Under the Unfunded
                                             costs and, in choosing among alternative                to businesses considered large in their               Mandates Reform Act of 1995
                                             regulatory approaches, those approaches                 industry or field. Accordingly, DOE                      The Unfunded Mandates Reform Act
                                             maximize net benefits.                                  certifies that this rule would not have a             of 1995 (Pub. L. 104–4) generally
                                                                                                     significant economic impact on a                      requires a Federal agency to perform a
                                             B. Review Under Executive Order 12988
                                                                                                     substantial number of small entities,                 detailed assessment of costs and
                                                With respect to the review of existing               and, therefore, no regulatory flexibility             benefits of any rule imposing a Federal
                                             regulations and the promulgation of                     analysis has been prepared.                           Mandate with costs to State, local or
                                             new regulations, section 3(a) of                                                                              tribal governments, or to the private
                                             Executive Order 12988, ‘‘Civil Justice                  D. Review Under the Paperwork
                                                                                                     Reduction Act                                         sector, of $100 million or more. This
                                             Reform,’’ 61 FR 4729 (February 7, 1996),                                                                      rulemaking does not impose a Federal
                                             imposes on Executive agencies the                          This rule would require the                        mandate on State, local or tribal
                                             general duty to adhere to the following                 preparation and submission of a UCC                   governments or on the private sector.
                                             requirements: (1) Eliminate drafting                    financing statement for awards where
                                             errors and ambiguity; (2) write                         the Federal share exceeds $1 million.                 H. Review Under the Treasury and
                                             regulations to minimize litigation; and                 This collection of information is                     General Government Appropriations
                                             (3) provide a clear legal standard for                  required for the Department to protect                Act, 1999
                                             affected conduct rather than a general                  the taxpayers by clarifying the rights to               Section 654 of the Treasury and
                                             standard and promote simplification                     real property and equipment purchased                 General Government Appropriations
                                             and burden reduction.                                   under financial assistance awards.                    Act, 1999 (Pub. L. 105–277), requires
                                                With regard to the review required by                   The collection of information for DOE              Federal agencies to issue a Family
                                             section 3(a), section 3(b) of Executive                 financial assistance awards has been                  Policymaking Assessment for any rule
                                             Order 12988 specifically requires that                  approved by OMB under control                         or policy that may affect family well-
                                             Executive agencies make every                           number 1910–0400. Collection of the                   being. This rule will have no impact on
                                             reasonable effort to ensure that the                    UCC–1 form is covered by this control                 family well-being. Accordingly, DOE
                                             regulation: (1) Clearly specifies the                   number.                                               has concluded that it is not necessary to
                                             preemptive effect, if any; (2) clearly                                                                        prepare a Family Policymaking
                                             specifies any effect on existing Federal                E. Review Under the National
                                                                                                     Environmental Policy Act                              Assessment.
                                             law or regulation; (3) provides a clear
                                             legal standard for affected conduct                        DOE has concluded that promulgation                I. Review Under Executive Order 13211
                                             while promoting simplification and                      of this rule falls into a class of actions               Executive Order 13211, ‘‘Actions
                                             burden reduction; (4) specifies the                     which would not individually or                       Concerning Regulations That
                                             retroactive effect, if any; (5) adequately              cumulatively have significant impact on               Significantly Affect Energy Supply,
                                             defines key terms; and (6) addresses                    the human environment, as determined                  Distribution, or Use’’, 66 FR 28355 (May
                                             other important issues affecting clarity                by DOE’s regulations (10 CFR part 1021,               22, 2001), requires Federal agencies to
                                             and general draftsmanship under any                     subpart D) implementing the National                  prepare and submit to the Office of
                                             guidelines issued by the Attorney                       Environmental Policy Act (NEPA) of                    Information and Regulatory Affairs
                                             General. Section 3(c) of Executive Order                1969 (42 U.S.C. 4321 et seq.).                        (OIRA), Office of Management and
                                             12988 requires Executive agencies to                    Specifically, this rule is categorically              Budget, a Statement of Energy Effects for
                                             review regulations in light of applicable               excluded from NEPA review because                     any significant energy action. A
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                                             standards in section 3(a) and section                   the amendments to the DEAR are                        ‘‘significant energy action’’ is defined as
                                             3(b) to determine whether they are met                  strictly procedural (categorical                      any action by an agency that
                                             or it is unreasonable to meet one or                    exclusion A6). Therefore, this rule does              promulgates or is expected to lead to
                                             more of them. DOE has completed the                     not require an environmental impact                   promulgation of a Final Rule, and that:
                                             required review and determined that, to                 statement or environmental assessment                 (1) Is a significant regulatory action
                                             the extent permitted by law; these                      pursuant to NEPA.                                     under Executive Order 12866, or any


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                                                              Federal Register / Vol. 80, No. 171 / Thursday, September 3, 2015 / Rules and Regulations                                       53237

                                             successor order; and (2) is likely to have              between the United States and its major               § 910.360   Real property and equipment.
                                             a significant adverse effect on the                     trading partners, consistent with section                (a) Prior approvals for acquisition
                                             supply, distribution, or use of energy, or              1 of this order, when stakeholders                    with Federal funds. Recipients may
                                             (3) is designated by the Administrator of               provide adequate information to the                   purchase real property or equipment
                                             OIRA as a significant energy action. For                agency establishing that the differences              with an acquisition cost per unit of
                                             any proposed significant energy action,                 are unnecessary; and                                  $5,000 or more in whole or in part with
                                             the agency must give a detailed                            (ii) Such reforms in other                         Federal funds only with the prior
                                             statement of any adverse effects on                     circumstances as the agency deems                     written approval of the contracting
                                             energy supply, distribution or use                      appropriate; and                                      officer or in accordance with express
                                             should the proposal be implemented,                        (d) For significant regulations that the           award terms.
                                             and of reasonable alternatives to the                   agency identifies as having significant                  (b) Title. Unless a statute specifically
                                             action and their expected benefits on                   international impacts, consider, to the               authorizes and the award specifies that
                                             energy supply, distribution and use.                    extent feasible, appropriate, and                     title to property vests unconditionally in
                                             Today’s rule is not a significant energy                consistent with law, any regulatory                   the recipient, title to real property or
                                             action. Accordingly, DOE has not                        approaches by a foreign government that               equipment vests in the recipient, subject
                                             prepared a Statement of Energy Effects.                 the United States has agreed to consider              to all terms and conditions of the award
                                                                                                     under a regulatory cooperation council                and that the recipient shall:
                                             J. Review Under the Treasury and                                                                                 (1) Use the real property or equipment
                                             General Government Appropriations                       work plan.
                                                                                                                                                           for the authorized purposes of the
                                             Act, 2001                                                  DOE has reviewed this rule under the
                                                                                                                                                           project until funding for the project
                                                                                                     provisions of Executive Order 13609
                                                The Treasury and General                                                                                   ceases, or until the real property or
                                                                                                     and determined that the rule complies
                                             Government Appropriations Act, 2001                                                                           equipment is no longer needed for the
                                                                                                     with all requirements set forth in the
                                             (44 U.S.C. 3516, note) provides for                                                                           purposes of the project, as may be
                                                                                                     order.
                                             agencies to review most disseminations                                                                        determined by the contracting officer;
                                             of information to the public under                      L. Approval by the Office of the                         (2) Not encumber or permit any
                                             implementing guidelines established by                  Secretary of Energy                                   encumbrance on the real property or
                                             each agency pursuant to general                                                                               equipment without the prior written
                                                                                                       The Office of the Secretary of Energy               approval of the contracting officer;
                                             guidelines issued by OMB. OMB’s                         has approved issuance of this rule.
                                             guidelines were published at 67 FR                                                                               (3) Use and dispose of the real
                                             8452 (February 22, 2002), and DOE’s                     M. Congressional Notification                         property or equipment in accordance
                                             guidelines were published at 67 FR                                                                            with paragraphs (e), (f), and (g) of this
                                                                                                       As required by 5 U.S.C. 801, DOE will               section; and
                                             62446 (October 7, 2002). DOE has                        report to Congress on the promulgation
                                             reviewed today’s notice under the OMB                                                                            (4) Properly record, and consent to the
                                                                                                     of this rule prior to its effective date.             Department’s ability to properly record
                                             and DOE guidelines and has concluded                    The report will state that it has been
                                             that it is consistent with applicable                                                                         if the recipient fails to do so, UCC
                                                                                                     determined that the rule is not a ‘‘major             financing statement(s) for all equipment
                                             policies in those guidelines.                           rule’’ as defined by 5 U.S.C. 804(2).                 purchased with Federal funds
                                             K. Review Under Executive Order 13609                   List of Subjects in 2 CFR Part 910                    (Financial assistance awards made
                                               Executive Order 13609 of May 1,                                                                             under the Small Business Innovation
                                                                                                       Accounting, Administrative practice                 Research/Small Business Technology
                                             2012, ‘‘Promoting International
                                                                                                     and procedure, Grant programs,                        Transfer (SBIR/STTR) program are
                                             Regulatory Cooperation,’’ requires that,
                                                                                                     Reporting and recordkeeping                           exempt from this requirement unless
                                             to the extent permitted by law and
                                                                                                     requirements.                                         otherwise specified within the grant
                                             consistent with the principles and
                                             requirements of Executive Order 13563                     Issued in Washington, DC, on: August 21,            agreement); such a filing is required
                                             and Executive Order 12866, each                         2015.                                                 when the Federal share of the financial
                                             Federal agency shall:                                   Patrick M. Ferraro                                    assistance agreement is more than
                                               (a) If required to submit a Regulatory                Director, Office of Acquisition Management.           $1,000,000, and the Contracting Officer
                                             Plan pursuant to Executive Order 12866,                 Joseph F. Waddell,                                    may require it in his or her discretion
                                             include in that plan a summary of its                                                                         when the Federal share is less than
                                                                                                     Director, Office of Acquisition Management,
                                             international regulatory cooperation                    National Nuclear Security Administration.             $1,000,000. These financing
                                             activities that are reasonably anticipated                                                                    statement(s) must be approved in
                                             to lead to significant regulations, with                  For the reasons stated in the                       writing by the contracting officer prior
                                             an explanation of how these activities                  preamble, the Department of Energy is                 to the recording, and they shall provide
                                             advance the purposes of Executive                       amending part 910 of chapter II, title 2              notice that the recipient’s title to all
                                             Order 13563 and this order;                             of the Code of Federal Regulations to                 equipment (not real property) purchased
                                               (b) Ensure that significant regulations               read as follows:                                      with Federal funds under the financial
                                             that the agency identifies as having                                                                          assistance agreement is conditional
                                                                                                     PART 910—UNIFORM                                      pursuant to the terms of this section,
                                             significant international impacts are                   ADMINISTRATIVE REQUIREMENTS,
                                             designated as such in the Unified                                                                             and that the Government retains an
                                                                                                     COST PRINCIPLES, AND AUDIT                            undivided reversionary interest in the
                                             Agenda of Federal Regulatory and                        REQUIREMENTS FOR FEDERAL
                                             Deregulatory Actions, on RegInfo.gov,                                                                         equipment. The UCC financing
                                                                                                     AWARDS                                                statement(s) must be filed before the
                                             and on Regulations.gov;
                                                                                                                                                           contracting officer may reimburse the
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                                               (c) In selecting which regulations to                 ■ 1. The authority citation for part 910
                                             include in its retrospective review plan,                                                                     recipient for the Federal share of the
                                                                                                     continues to read as follows:
                                             as required by Executive Order 13563,                                                                         equipment unless otherwise provided
                                             consider:                                                 Authority: 42 U.S.C. 7101 et seq.; 31 U.S.C.        for in the relevant financial assistance
                                               (i) Reforms to existing significant                   6301–6308; 50 U.S.C. 2401 et seq.; 2 CFR part         agreement. The recipient shall further
                                                                                                     200.
                                             regulations that address unnecessary                                                                          make any amendments to the financing
                                             differences in regulatory requirements                  ■   2. Revise § 910.360 to read as follows:           statements or additional recordings,


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                                             53238            Federal Register / Vol. 80, No. 171 / Thursday, September 3, 2015 / Rules and Regulations

                                             including appropriate continuation                      acquired. Use of the real property or                    (iii) The recipient may elect to retain
                                             statements, as necessary or as the                      equipment on other projects is subject to             title, without further obligation to the
                                             contracting officer may direct.                         the following order of priority:                      Federal Government, by compensating
                                                (c) Remedies. If the recipient fails at                 (i) Activities sponsored by DOE                    the Federal Government for that
                                             any time to comply with any of the                      grants, cooperative agreements, or other              percentage of the current fair market
                                             conditions or requirements of paragraph                 assistance awards;                                    value of the real property or equipment
                                             (b) of this section, then the contracting                  (ii) Activities sponsored by other                 that is attributable to the Federal
                                             officer may:                                            Federal agencies’ grants, cooperative                 participation in the project.
                                                (1) Notify the recipient of                          agreements, or other assistance awards;                  (iv) If the recipient does not elect to
                                             noncompliance in accordance with 2                         (iii) Activities under Federal                     retain title to real property or equipment
                                             CFR 200.338, which may lead to                          procurement contracts or activities not               or does not request approval to use
                                             suspension or termination of the award;                 sponsored by any Federal agency. If so                equipment as trade-in or offset for
                                                (2) Impose special award conditions                  used, use charges must be assessed to                 replacement equipment, the recipient
                                             pursuant to 2 CFR 200.205 and 200.207                   those activities. For real property or                must request disposition instructions
                                             as amended by 2 CFR 910.372;                            equipment, the use charges must be at                 from the responsible agency.
                                                (3) Issue instructions to the recipient              rates equivalent to those for which                      (2) If a recipient requests disposition
                                             for disposition of the property in                      comparable real property or equipment                 instructions, the contracting officer
                                             accordance with paragraph (g) of this                   may be leased.                                        must:
                                             section;                                                   (2) After Federal funding for the                     (i) For either real property or
                                                (4) In the case of a failure to properly                                                                   equipment, issue instructions to the
                                                                                                     project ceases, or if, as may be
                                             record UCC financing statement(s) in                                                                          recipient for disposition of the property
                                                                                                     determined by the contracting officer,
                                             accordance with paragraph (b)(4) of this                                                                      no later than 120 calendar days after the
                                                                                                     the real property or equipment is no
                                             section, effect such a recording; and                                                                         recipient’s request. The contracting
                                                (5) Apply other remedies that may be                 longer needed for the purposes of the
                                                                                                     project, or if the recipient suspends                 officer’s options for disposition are to
                                             legally available.                                                                                            direct the recipient to:
                                                (d) Title to and Federal interest in real            work on the project, the recipient may
                                                                                                     use the real property or equipment for                   (A) Transfer title to the real property
                                             property or equipment offered as cost-                                                                        or equipment to the Federal
                                             share. As provided in 2 CFR 200.306(h),                 other projects, if:
                                                                                                                                                           Government or to a third party
                                             depending upon the purpose of the                          (i) There are Federally sponsored
                                                                                                                                                           designated by the contracting officer
                                             Federal award, a recipient may offer the                projects for which the real property or
                                                                                                                                                           provided that, in such cases, the
                                             fair market value of real property or                   equipment may be used;
                                                                                                                                                           recipient is entitled to compensation for
                                             equipment that is purchased with                           (ii) The recipient obtains written
                                                                                                                                                           its attributable percentage of the current
                                             recipient’s funds or that is donated by                 approval from the contracting officer to
                                                                                                                                                           fair market value of the real property or
                                             a third party to meet a portion of any                  do so. The contracting officer must
                                                                                                                                                           equipment, plus any reasonable
                                             required cost sharing or matching. If a                 ensure that there is a formal change of
                                                                                                                                                           shipping or interim storage costs
                                             resulting award includes such property                  accountability for the real property or
                                                                                                                                                           incurred; or
                                             as a portion of the recipient’s cost share,             equipment to a currently funded Federal                  (B) Sell the real property or
                                             the recipient holds conditional title to                award; and                                            equipment and pay the Federal
                                             the property and the Government has an                     (iii) The recipient’s use of the real              Government for that percentage of the
                                             undivided reversionary interest in the                  property or equipment for other projects              current fair market value of the property
                                             share of the property value equal to the                is in the same order of priority as                   that is attributable to the Federal
                                             Federal participation in the project. The               described in paragraph (e)(1) of this                 participation in the project (after
                                             property is treated as if it had been                   section.                                              deducting actual and reasonable selling
                                             acquired in part with Federal funds, and                   (iv) If the only use for the real                  and fix-up expenses, if any, from the
                                             is subject to the provisions of paragraph               property or equipment is for projects                 sale proceeds). If the recipient is
                                             (b) of this section and to the provisions               that have no Federal sponsorship, the                 authorized or required to sell the real
                                             of 2 CFR 200.311 and 200.313.                           recipient must proceed with disposition               property or equipment, the recipient
                                                (e) Insurance. Recipients must, at a                 of the real property or equipment in                  must use competitive procedures that
                                             minimum, provide the equivalent                         accordance with paragraph (g) of this                 result in the highest practicable return.
                                             insurance coverage for real property and                section.                                                 (3) If the contracting officer fails to
                                             equipment acquired with Federal funds                      (g) Disposition. (1) If, as determined             issue disposition instructions within
                                             as provided to property owned by the                    by the contracting officer, an item of real           120 calendar days of the recipient’s
                                             recipient.                                              property or equipment is no longer                    request, the recipient must dispose of
                                                (f) Additional uses during and after                 needed for Federally sponsored projects,              the real property or equipment through
                                             the project period. Unless a statute and                or if the recipient has suspended work                the option described in paragraph
                                             the award terms expressly provide for                   on the project, the recipient has the                 (g)(2)(i)(B) of this section.
                                             the vesting of unconditional title to real              following options:                                    ■ 3. Add § 910.364 to subpart D to read
                                             property or equipment with the                             (i) If the property is equipment with              as follows:
                                             recipient, the real property or                         a current per unit fair market value of
                                             equipment acquired wholly or in part                    less than $5,000, it may be retained,                 § 910.364 Reporting on utilization of
                                             with Federal funds is subject to the                    sold, or otherwise disposed of with no                subject inventions.
                                             following:                                              further obligation to DOE.                              (a) Unless otherwise instructed, a
                                                (1) During the Project Period, the                      (ii) If the property is equipment                  recipient that obtains title to an
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                                             recipient must make real property and                   (rather than real property) and with the              invention made under an award shall
                                             equipment available for use on other                    written approval of the contracting                   submit annual reports on the utilization
                                             projects or programs, if such other use                 officer, the recipient may replace it with            or efforts to obtain utilization of the
                                             does not interfere with the work on the                 an item that is needed currently for the              invention for at least 10 years from the
                                             project or program for which the real                   project by trading in or selling to offset            date the invention was first disclosed to
                                             property or equipment was originally                    the costs of the replacement equipment.               DOE (Utilization Reports). Utilization


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                                                              Federal Register / Vol. 80, No. 171 / Thursday, September 3, 2015 / Rules and Regulations                                        53239

                                             Reports shall include at least the                      subject invention or developed                          (d) The contracting officer must
                                             following information:                                  technology may request a waiver or                    authorize a change of control for the
                                               (1) Status of development;                            modification of U.S. manufacturing                    purposes of the award. Failure to
                                               (2) Date of first commercial sale or                  plans from DOE. DOE will determine                    receive the contracting officer’s
                                             use;                                                    whether to approve such a waiver in                   authorization for a change of control
                                               (3) Gross royalties received by the                   light of equitable considerations,                    may lead to a suspension of the award,
                                             recipient;                                              including, for example, whether the                   termination for failure to comply with
                                               (4) The location of any manufacture of                requester satisfactorily shows that the               the terms and conditions of the award,
                                             products embodying the subject                          planned support is not economically                   or imposition of special award
                                             invention; and                                          feasible and whether there is a                       conditions pursuant to 2 CFR 910.372.
                                               (5) Any such other data and                           satisfactory alternative net benefit to the           Special award conditions may include
                                             information as DOE may reasonably                       U.S. economy if the requested waiver or               but are not limited to:
                                             specify.                                                modification is approved.                               (1) Additional reporting requirements
                                               (b) To the extent data or information
                                                                                                     ■ 5. Add § 910.368 to subpart D to read               related to the change of control; and
                                             supplied in a Utilization Report is
                                                                                                     as follows:                                             (2) Suspension of payments due to the
                                             considered by the recipient to be
                                                                                                                                                           recipient.
                                             privileged and confidential and is so                   § 910.368    Change of control.
                                             marked by the recipient, DOE agrees                                                                           ■ 6. Add § 910.370 to subpart D to read
                                                                                                        (a) Change of control is defined as any
                                             that, to the extent permitted by law, it                                                                      as follows:
                                                                                                     of the following:
                                             shall not disclose such information to                     (1) Any event by which any                         § 910.370 Novation of financial assistance
                                             persons outside the Government.                         individual or entity other than the                   agreements.
                                             ■ 4. Add § 910.366 to subpart D to read                 recipient becomes the beneficial owner                   (a) Financial assistance agreements
                                             as follows:                                             of more than 50% of the total voting                  are not assignable absent written
                                                                                                     power of the voting stock of the                      consent from the contracting officer. At
                                             § 910.366 Export Control and U.S.
                                                                                                     recipient;                                            his or her sole discretion, the
                                             Manufacturing and Competitiveness.
                                                                                                        (2) The recipient merges with or into              contracting officer may, through
                                                (a) Export Control. Any recipient of                 any entity other than in a transaction in
                                             any award for research, development                                                                           novation, recognize a third party as the
                                                                                                     which the shares of the recipient’s                   successor in interest to a financial
                                             and/or demonstration must comply with                   voting stock are converted into a
                                             all applicable U.S. laws regarding export                                                                     assistance agreement if such recognition
                                                                                                     majority of the voting stock of the                   is in the Government’s interest,
                                             control.                                                surviving entity;
                                                (b) U.S. Manufacturing and                                                                                 conforms with all applicable laws and
                                                                                                        (3) The sale, lease or transfer of all or
                                             Competitiveness. It is the policy of DOE                                                                      the third party’s interest in the
                                                                                                     substantially all of the assets of the
                                             to ensure that DOE-funded research,                                                                           agreement arises out of the transfer of:
                                                                                                     recipient to any individual or entity
                                             development, and/or demonstration                                                                                (1) All of the recipient’s assets; or
                                                                                                     other than the recipient in one or a
                                             projects foster domestic manufacturing.                 series of related transactions;                          (2) The entire portion of the assets
                                             Funding opportunity announcements                          (4) The adoption of a plan relating to             necessary to perform the project
                                             (FOAs), therefore, may require that                     the liquidation or dissolution of the                 described in the agreement.
                                             applicants submit a ‘‘U.S.                              recipient; or                                            (b) When the contracting officer
                                             Manufacturing Plan’’ in their                              (5) Where the recipient is a wholly-               determines that it is not in the
                                             applications. Such FOAs may encourage                   owned subsidiary at the time of award                 Government’s interest to consent to the
                                             U.S. Manufacturing Plans to include                     or novation, and the recipient’s parent               novation of a financial assistance
                                             proposals by recipients and any sub-                    entity undergoes a change of control as               agreement from the original recipient to
                                             recipients to manufacture DOE-funded                    defined in this section.                              a third party, the original recipient
                                             technologies in the United States;                         (b) When the Federal share of the                  remains subject to the terms of the
                                             however, the FOAs will also state that                  financial assistance agreement is more                financial assistance agreement, and the
                                             these plans should not include                          than $10,000,000 or DOE requests the                  Department may exercise all legally
                                             requirements regarding the source of                    information in writing, the recipient                 available remedies under 2 CFR 200.338
                                             inputs used during the manufacturing                    must provide the contracting officer                  through 200.342, or that may be
                                             process. Regardless of whether such                     with documentation identifying all                    otherwise available, should the original
                                             plans will be part of the merit review                  parties who exercise control in the                   recipient not perform.
                                             criteria or a program policy factor, and                recipient at the time of award.                          (c) The contracting officer may require
                                             to the extent legally permissible, all                     (c) When there is a change of control              submission of any documentation in
                                             awards subject to this subpart, including               of a recipient, or the recipient has                  support of a request for novation,
                                             subawards, for research, development,                   reason to know a change of control is                 including but not limited to documents
                                             and/or demonstration, must include a                    likely, the recipient must notify the                 identified in 48 CFR Subpart 42.12. The
                                             provision that provides plans by the                    contracting officer within 30 days of its             contracting officer may use the format in
                                             recipient and any subrecipients to                      knowledge of such change of control.                  48 CFR 42.1204 as guidance for
                                             support manufacturing in the United                     Such notification must include, at a                  novation agreements identified in
                                             States of technology developed under                    minimum, copies of documents                          paragraph (a) of this section.
                                             the award. The recipient and any                        necessary to reflect the transaction that             ■ 7. Add § 910.372 to subpart D to read
                                             subrecipients must agree to make those                  resulted or will result in the change of              as follows:
                                             plans binding on any assignee or                        control, and identification of all entities,
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                                             licensee or any entity otherwise                        individuals or other parties to such                  § 910.372   Special award conditions.
                                             acquiring rights to any subject invention               transaction. Failure to notify the                      (a) In addition to the requirements of
                                             or developed technology covered under                   contracting officer of a change of control            2 CFR 200.205, the following actions
                                             the award. A recipient, subrecipient,                   is grounds for suspension or termination              may require the use of Specific
                                             assignee, licensee, or any entity                       of the award for failure to comply with               Conditions as identified in 2 CFR
                                             otherwise acquiring the rights to any                   the terms and conditions of the award.                200.207:


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                                             53240            Federal Register / Vol. 80, No. 171 / Thursday, September 3, 2015 / Rules and Regulations

                                               (1) Has not conformed to the terms                    DATES: This rule will become effective                not excuse a State from following
                                             and conditions of a previous award;                     on November 2, 2015.                                  correction or claims procedures for any
                                               (2) Has a change of control as defined                FOR FURTHER INFORMATION CONTACT:                      over or under issuance that is under the
                                             in § 910.368;                                           Vicky T. Robinson, FNS, 3101 Park                     tolerance level. Typically, changes that
                                               (3) Fails to comply with real property                Center Drive, Room #418, Alexandria,                  affect the QC review period are made
                                             and equipment requirements at                           VA 22302, 703–305–2476.                               effective the upcoming fiscal year so
                                             § 910.360; or                                                                                                 that State and Federal QC reviewers can
                                                                                                     SUPPLEMENTARY INFORMATION:
                                               (4) Is not otherwise responsible.                                                                           prepare for the procedural and
                                             [FR Doc. 2015–21693 Filed 9–2–15; 8:45 am]              I. Background                                         systematic changes required. However,
                                             BILLING CODE 6450–01–P                                  General                                               since the QC review period for FY 2014
                                                                                                                                                           had already begun when the Act was
                                                                                                        On February 7, 2014, the President                 signed, the Department was required to
                                                                                                     signed the 2014 Farm Bill. Amendments                 take immediate action at that point on
                                             DEPARTMENT OF AGRICULTURE
                                                                                                     exclude medical marijuana from                        announcement of a new threshold, and
                                             Food and Nutrition Service                              allowable medical expense deductions                  established the new $37 threshold
                                                                                                     for SNAP purposes, update the QC error                through an implementing memorandum
                                             7 CFR Parts 271, 273, 274, and 275                      tolerance threshold for Fiscal Year (FY)              on March 21, 2014. This rule codifies
                                                                                                     2014 and index this amount for FY 2015                what was put in place via that
                                             RIN 0584–AE48                                           and thereafter based on an adjustment                 implementing memorandum.
                                                                                                     in the Thrifty Food Plan (TFP),                          Section 4019 of the 2014 Farm Bill
                                             Supplemental Nutrition Assistance
                                                                                                     eliminate the Department’s ability to                 also requires USDA to adjust FY 2014’s
                                             Program (SNAP): Agricultural Act of
                                             2014 Nondiscretionary Provisions                        waive any portion of a State’s QC                     threshold by the percentage by which
                                                                                                     Liability amount except as provided in                the Thrifty Food Plan (TFP) is adjusted
                                             AGENCY:  Food and Nutrition Service                     SNAP regulations at 7 CFR 275.23(f),                  under Section 3(u)(4) of the Food and
                                             (FNS), USDA.                                            ensure that State agencies may use High               Nutrition Act of 2008. The Department
                                             ACTION: Final rule.                                     Performance Bonus Payments only for                   uses three TFPs to establish benefit
                                                                                                     SNAP administrative expenses, and                     levels, one for the 48 contiguous States
                                             SUMMARY:   The Food and Nutrition                       prohibit SNAP benefits from being used                and District of Columbia, one for
                                             Service (FNS) of the Department of                      to pay for container deposit fees in                  Alaska, and one for Hawaii. Although
                                             Agriculture (USDA) is amending                          excess of the State fee reimbursement.                there are different TFPs used in SNAP
                                             Supplemental Nutrition Assistance                                                                             benefit calculation, the Department is
                                             Program (SNAP or Program) regulations                   Medical Marijuana
                                                                                                                                                           required to have one national
                                             to codify certain nondiscretionary                         USDA is amending SNAP regulations                  performance measure for State payment
                                             provisions of the Agricultural Act of                   at 7 CFR part 273 in accordance with                  error rates. For that reason, the
                                             2014 (the ‘‘2014 Farm Bill’’).                          Section 4005 of the 2014 Farm Bill.                   Department has concluded that it has no
                                                This final rule excludes medical                     Under Section 4005, USDA is instructed                discretion in using a single TFP-related
                                             marijuana from being treated as an                      to promulgate regulations to explicitly               adjustment mechanism for all States.
                                             allowable medical expense for the                       prohibit States from utilizing the excess                For FY 2015, the Department adjusted
                                             purposes of determining the excess                      medical deduction to deduct medical                   the threshold amount by using the TFP
                                             medical expense deduction under                         marijuana costs from a household’s                    for the 48 contiguous States and District
                                             SNAP. This rule also amends multiple                    income for SNAP purposes.                             of Columbia as the TFP baseline for all
                                             SNAP regulations pursuant to                               Under the Controlled Substances Act,               53 State agencies, resulting in a
                                             nondiscretionary changes under the                      21 U.S.C. 801 et seq., marijuana is a                 tolerance level of $38 for FY 2015. In
                                             2014 Farm Bill related to Quality                       Schedule I controlled substance that has              this final rule, the Department is
                                             Control (QC). This rule updates the QC                  no currently accepted medical use and                 establishing that the threshold will be
                                             error tolerance threshold to no more                    cannot be prescribed for medicinal                    adjusted each year by using the TFP for
                                             than $37 for Fiscal Year (FY) 2014. For                 purposes. 21 U.S.C. 812(b)(1)(C). SNAP                the 48 contiguous States and District of
                                             FY 2015 and thereafter, the QC                          is a Federal program and must conform                 Columbia. A policy memo will be
                                             tolerance level will be set annually                    to Federal law regarding illegal                      issued to States notifying them of the
                                             based on an adjustment in the Thrifty                   substances. Therefore, marijuana and                  adjustment to the threshold amount at
                                             Food Plan (TFP). In addition, this rule                 other Schedule I controlled substances                the start of each QC review period.
                                             eliminates USDA’s ability to waive any                  are not allowable medical expenses
                                             portion of a State’s QC liability amount,                                                                     Liability Amount Determinations
                                                                                                     under SNAP. USDA is incorporating
                                             except as provided in SNAP regulations                  this requirement into the regulations at                 After each fiscal year, in accordance
                                             that requires State agencies to use SNAP                new subsection 7 CFR                                  with regulatory requirements, a
                                             High Performance Bonus Payments only                    273.9(d)(3)(iii)(B).                                  determination is made for each State
                                             for SNAP administrative expenses                                                                              agency as to whether or not that FY’s
                                             including investments in technology,                    Error Tolerance Threshold                             QC Error Rate would lead to the State
                                             improvements in administration and                        Section 16 (c)(1)(A)(ii)(I) of the Food             being assessed a liability amount. State
                                             distribution, and actions to prevent                    and Nutrition Act of 2008 was amended                 agencies assessed liabilities are given
                                             fraud, waste and abuse. Finally, this                   by Section 4019 of the 2014 Farm Bill                 the opportunity to pay their liabilities in
                                             rule amends SNAP regulations                            to require that the Secretary set the                 full or designate 50 percent of the
                                             pertaining to the use of SNAP benefits                  tolerance level for excluding small                   liability amount as at-risk for repayment
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                                             to pay for container deposit fees. The                  errors for fiscal year 2014, at an amount             if a liability amount for an excessive
                                             2014 Farm Bill prohibits SNAP benefits                  not greater than $37. Until that point in             payment error rate is established for the
                                             from being used to pay for container                    time, the QC tolerance level was at $50,              following FY. State agencies must then
                                             deposit fees in excess of any State fee                 meaning only variances that exceed $50                designate the other 50 percent of the
                                             reimbursement required to purchase                      were included in the calculation of the               liability amount to be used for new
                                             food in a returnable bottle or can.                     payment error rate. This threshold does               investment in approved activities to


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Document Created: 2015-12-15 09:57:04
Document Modified: 2015-12-15 09:57:04
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective: October 5, 2015.
ContactEllen Colligan, Procurement Analyst, U.S. Department of Energy, Office of Acquisition Management, Contract and Financial Assistance Policy Division MA-611, Telephone: (202) 287- 1776. Email: [email protected]
FR Citation80 FR 53235 
RIN Number1991-AC02
CFR AssociatedAccounting; Administrative Practice and Procedure; Grant Programs and Reporting and Recordkeeping Requirements

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