80_FR_57694 80 FR 57509 - Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards

80 FR 57509 - Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards

DEPARTMENT OF ENERGY

Federal Register Volume 80, Issue 185 (September 24, 2015)

Page Range57509-57512
FR Document2015-24276

This rule finalizes the Department of Energy (DOE)'s part of the Federal Awarding Agency Regulatory Implementation of Office of Management and Budget's Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards joint interim rule which was issued December 19, 2014 and makes several technical corrections to DOE's portion of the interim final rule. DOE is not making new policy with either the interim final rule or this final rule. All regulatory language included here is consistent with either the policies in the Uniform Guidance or DOE's existing policies and practices.

Federal Register, Volume 80 Issue 185 (Thursday, September 24, 2015)
[Federal Register Volume 80, Number 185 (Thursday, September 24, 2015)]
[Rules and Regulations]
[Pages 57509-57512]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-24276]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 80, No. 185 / Thursday, September 24, 2015 / 
Rules and Regulations

[[Page 57509]]



DEPARTMENT OF ENERGY

2 CFR Part 910

RIN 1991-AB94


Uniform Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards

AGENCY: Department of Energy.

ACTION: Final rule.

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

SUMMARY: This rule finalizes the Department of Energy (DOE)'s part of 
the Federal Awarding Agency Regulatory Implementation of Office of 
Management and Budget's Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards joint interim 
rule which was issued December 19, 2014 and makes several technical 
corrections to DOE's portion of the interim final rule.
    DOE is not making new policy with either the interim final rule or 
this final rule. All regulatory language included here is consistent 
with either the policies in the Uniform Guidance or DOE's existing 
policies and practices.

DATES: Effective: October 26, 2015.

FOR FURTHER INFORMATION CONTACT: Ellen Colligan, Procurement Analyst, 
U.S. Department of Energy, Office of Acquisition Management, Contract 
and Financial Assistance Policy Division MA-611, Telephone: (202) 287-
1776. Email: ellen.colligan@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Summary
II. Procedural Requirements
    A. Review under Executive Orders 12866 and 13563.
    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 Executive Order 13211.
    I. Review under the Treasury and General Government 
Appropriations Act, 2001.
    J. Review under the Administrative Procedure Act
    K. Congressional Notification
    L. Approval by the Office of the Secretary of Energy

I. Summary

    The Department makes substantial use of financial assistance awards 
(grants and cooperative agreements) to meet its mission goals. To 
manage these awards, the Department added requirements specifying 
changes and additions to its Administrative Requirements for Grants and 
Cooperative Agreements.
    On December 19, 2014, OMB published a rulemaking in the Federal 
Register finalizing the guidance on Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements for Federal 
Awards (79 FR 75867). As a part of the same rulemaking, OMB issued the 
interim final Federal Awarding Agency Regulatory Implementation of 
Office of Management and Budget's Uniform Administrative Requirements, 
Cost Principles, and Audit Requirements for Federal Awards which 
contained a separate section for each federal awarding agency. DOE's 
regulations are contained in 2 CFR part 910 (79 FR 76024).
    DOE is finalizing this rule with technical corrections as detailed 
below.
    DOE received no comments from members of the public in response to 
its section of the joint interim final rule. However, DOE has found 
areas where technical corrections are necessary. Corrections are 
included only where it has come to the attention of DOE that particular 
language in the final guidance did not match with DOE's intent and 
would result in an erroneous implementation of the guidance. The 
technical corrections include:
    a. Adding the national interest exception from competition 
(consistent with the existing requirement in section 600.6(b)(8)). When 
carrying requirements forward from our current regulations, this 
section was inadvertently dropped from the regulations. We need this 
exception for instances where non-competitive awards are necessary to 
meet the national interest of the United States.
    b. Clarifying that restricted eligibility needs to be approved one 
level above CO. In an attempt to clarify this section of the 
regulations when carrying the requirement forward to our new 
regulations, the approval level was omitted. We need to add this back 
since regulations as written do not require any higher level approval.
    c. Adding section 910.127, Legal Authority and Effect which is 
consistent with 10 CFR 600.16. There is nothing in the new regulations 
to indicate what constitutes a legal award or exactly how the recipient 
acknowledges that they have agreed to the terms and conditions of the 
award. Therefore, we are carrying forward a section from our current 
regulations which clarifies this issue.
    d. Clarifying sections 910.501 and 910.507 to update some 
references from ``program-specific'' to ``compliance'' audits. The 
major difference between program-specific audits and compliance audits 
is that program-specific audits require that the auditee prepare a 
financial statement and that the auditor perform an audit of the 
financial statements. The guidance provided in 2 CFR 910 corresponding 
to Compliance Audits by for-profit entities is consistent with prior 
DOE guidance. The requirements in 2 CFR 910 do not require an auditee 
to prepare financial statements and do not require an auditor to 
perform an audit of financial statements. Instead, the guidance in 2 
CFR 910 specifies requirements to be met by the auditee and auditor 
that ensures the audit complies with Generally Accepted Government 
Auditing Standards (GAGAS), Federal statutes and regulations, and the 
terms and conditions of Federal award. The effect is that 2 CFR 910 
does not ``create new policy or requirements . . .'' in accordance with 
OMB implementing guidance (consistent with the existing requirement in 
section 600.316). The corrections primarily replace the term ``Program-
Specific'' Audit with the term ``Compliance'' Audit in order to 
eliminate potential confusion between the two types of audits.
    e. Making a wording change to 910.502 to parallel a technical 
correction made by OMB December 19, 2014. Wording change is to say that 
``. . . determination of when a Federal award is expended must be based 
on

[[Page 57510]]

when the activity related to the Federal award occurs . . .''. The 
previous wording said that it should be based on when the activity 
related to the Federal award occurs. Making this change clarifies that 
there are no other factors to consider when determining when an 
expenses are incurred under the Federal award.

II. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    The regulatory action today has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). 
Accordingly, this rule is not subject to review under the Executive 
Order by the Office of Information and Regulatory Affairs within the 
Office of Management and Budget.
    DOE has also reviewed the 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 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 NOPR 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 (RFA) requires an agency that is 
issuing a final rule to provide a final regulatory flexibility analysis 
or to certify that the rule will not have a significant economic impact 
on a substantial number of small entities. OMB determined that the 
common interim final rule implements OMB final guidance issued on 
December 26, 2013, and will not have a significant economic impact 
beyond the impact of the December 2013 guidance.

D. Review Under the Paperwork Reduction Act

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

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.).

F. Review Under Executive Order 13132

    OMB determined that the joint interim final rule does not have any 
Federalism implications, as required by Executive Order 13132

G. Review Under the Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded 
Mandates Act) (2 U.S.C. 1532) requires that covered agencies prepare a 
budgetary impact statement before promulgating a rule that includes any 
Federal mandate that may result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. If a budgetary impact statement is 
required, section 205 of the Unfunded Mandates Act also requires 
covered agencies to identify and consider a reasonable number of 
regulatory alternatives before promulgating a rule. OMB has determined 
that this joint interim final rule will not result in expenditures by 
State, local, and tribal governments, or by the private sector, of $100 
million or more in any one year. Accordingly, the Federal agencies 
participating in this joint interim final rule have not prepared a 
budgetary impact statement or specifically addressed the regulatory 
alternatives considered.

[[Page 57511]]

H. 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 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 
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.

I. 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.

J. Review Under the Administrative Procedure Act

    An agency may find good cause to exempt a rule from the requirement 
for a notice of rulemaking and the opportunity for public under the 
Administrative Procedure Act (APA) if the requirement is determined to 
be unnecessary, impracticable, or contrary to the public interest under 
5 U.S.C. 533(b)(3)(B). Today's rule finalizes DOE portion of issued the 
interim final Federal Awarding Agency Regulatory Implementation of 
Office of Management and Budget's Uniform Administrative Requirements, 
Cost Principles, and Audit Requirements for Federal Awards (79 FR 
75867; DOE's portion begins at 76024). In addition DOE is publishing as 
final certain technical amendments which were omitted from the interim 
final rule. These amendments address internal agency practices 
concerning how DOE administers and have effect on members of the public 
in general or on financial assistance applicants in particular. 
Consequently, good cause exists for issuing these amendments as a final 
rule as notice and comment is unnecessary.

K. 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).

L. Approval by the Office of the Secretary of Energy

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

List of Subjects in 2 CFR Part 910

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

    Issued in Washington, DC, on September 17, 2015.
Patrick Ferraro,
Director, Office of Acquisition Management.
Joseph Waddell,
Deputy Associate Administrator, Acquisition and Project, Management, 
National Nuclear Security Administration.

    Accordingly, the interim rule amending 2 CFR part 910 which was 
published at 79 FR 75867 on December 19, 2014, is adopted as a final 
rule with the following changes:

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. Section 910.126 is amended by:
0
a. Removing ``and'' at the end of paragraph (b)(1);
0
b. Removing the punctuation at the end of paragraph (b)(2), and adding 
in its place ``; and''; and
0
c. Adding paragraphs (b)(3) and (c)(8).
    The additions read as follows:


Sec.  910.126  Competition.

* * * * *
    (b) * * *
    (3) Approved, prior to award, by an approver at least one level 
above the Contracting Officer.
    (c) * * *
    (8) The responsible program Assistant Secretary, Deputy 
Administrator, or other official of equivalent authority has determined 
that making the award non-competitively is in the public interest. This 
authority cannot not be delegated.
* * * * *

0
3. Section 910.127 is added to read as follows:


Sec.  910.127  Legal authority and effect.

    (a) A DOE financial assistance award is valid only if it is in 
writing and is signed, either in writing or electronically, by a DOE 
Contracting Officer.
    (b) Recipients are free to accept or reject the award. A request to 
draw down DOE funds constitutes the Recipient's acceptance of the terms 
and conditions of this Award.
0
4. Section 910.501 is amended by revising paragraphs (b)(1) and (2) to 
read as follows:


Sec.  910.501  Audit requirements.

* * * * *
    (b) Compliance audit. (1) If a for-profit entity has one or more 
DOE awards with expenditures of $750,000 or more during the for-profit 
entity's fiscal year, they must have a compliance audit for each of the 
awards with $750,000 or more in expenditures. A compliance audit should 
comply with the applicable provisions in Sec.  910.514--Scope of Audit. 
The remaining awards do not require, individually or in the aggregate, 
a compliance audit.
    (2) If a for-profit entity receives more than one award from DOE 
with a sum total of expenditures of $750,000 or more during the for-
profit entity's fiscal year, but does not have any single award with 
expenditures of $750,000 or more; the entity must determine whether any 
or all of the awards have common compliance requirements (i.e., are 
considered a cluster of awards) and determine the total expenditures of 
the awards with common compliance requirements. A compliance audit is 
required for the largest cluster of awards (if multiple clusters of 
awards exist) or the largest award not in a cluster of awards, 
whichever corresponding expenditure total is greater. A compliance 
audit should comply with the applicable provisions in Sec.  910.514--
Scope of Audit. The remaining awards

[[Page 57512]]

do not require, individually or in the aggregate, a compliance audit;
* * * * *

0
5. Section 910.507 is amended by:
0
a. Revising the section heading;
0
b. Removing the second occurrence of ``program-specific audit'' in the 
last sentence in paragraph (a) introductory text and adding in its 
place ``compliance audit'';
0
c. Removing ``Program-specific audits'' in the second sentence in 
paragraph (b) introductory text and adding in its place ``Compliance 
audits''.
    The revision reads as follows:


Sec.  910.507  Compliance audits.

* * * * *

0
6. In Sec.  910.502 introductory text, revise the subject heading and 
the first sentence to read as follows:


Sec.  910.502  Basis for determining DOE awards expended.

    Determining Federal awards expended. The determination of when a 
Federal award is expended must be based on when the activity related to 
the DOE award occurs. * * *
* * * * *
[FR Doc. 2015-24276 Filed 9-23-15; 8:45 am]
BILLING CODE 6450-01-P



                                                                                                                                                                                              57509

                                            Rules and Regulations                                                                                         Federal Register
                                                                                                                                                          Vol. 80, No. 185

                                                                                                                                                          Thursday, September 24, 2015



                                            This section of the FEDERAL REGISTER                      F. Review under Executive Order 13132.              awards are necessary to meet the
                                            contains regulatory documents having general              G. Review under the Unfunded Mandates               national interest of the United States.
                                            applicability and legal effect, most of which                Reform Act of 1995.                                 b. Clarifying that restricted eligibility
                                            are keyed to and codified in the Code of                  H. Review under Executive Order 13211.              needs to be approved one level above
                                            Federal Regulations, which is published under             I. Review under the Treasury and General
                                                                                                         Government Appropriations Act, 2001.
                                                                                                                                                          CO. In an attempt to clarify this section
                                            50 titles pursuant to 44 U.S.C. 1510.
                                                                                                      J. Review under the Administrative                  of the regulations when carrying the
                                            The Code of Federal Regulations is sold by                   Procedure Act                                    requirement forward to our new
                                            the Superintendent of Documents. Prices of                K. Congressional Notification                       regulations, the approval level was
                                            new books are listed in the first FEDERAL                 L. Approval by the Office of the Secretary          omitted. We need to add this back since
                                            REGISTER issue of each week.                                 of Energy                                        regulations as written do not require any
                                                                                                                                                          higher level approval.
                                                                                                    I. Summary                                               c. Adding section 910.127, Legal
                                            DEPARTMENT OF ENERGY                                       The Department makes substantial                   Authority and Effect which is consistent
                                                                                                    use of financial assistance awards                    with 10 CFR 600.16. There is nothing in
                                            2 CFR Part 910                                                                                                the new regulations to indicate what
                                                                                                    (grants and cooperative agreements) to
                                            RIN 1991–AB94                                           meet its mission goals. To manage these               constitutes a legal award or exactly how
                                                                                                    awards, the Department added                          the recipient acknowledges that they
                                            Uniform Administrative Requirements,                    requirements specifying changes and                   have agreed to the terms and conditions
                                            Cost Principles, and Audit                              additions to its Administrative                       of the award. Therefore, we are carrying
                                            Requirements for Federal Awards                         Requirements for Grants and                           forward a section from our current
                                            AGENCY:    Department of Energy.                        Cooperative Agreements.                               regulations which clarifies this issue.
                                                                                                       On December 19, 2014, OMB                             d. Clarifying sections 910.501 and
                                            ACTION:   Final rule.                                                                                         910.507 to update some references from
                                                                                                    published a rulemaking in the Federal
                                            SUMMARY:   This rule finalizes the                      Register finalizing the guidance on                   ‘‘program-specific’’ to ‘‘compliance’’
                                            Department of Energy (DOE)’s part of                    Uniform Administrative Requirements,                  audits. The major difference between
                                            the Federal Awarding Agency                             Cost Principles, and Audit                            program-specific audits and compliance
                                            Regulatory Implementation of Office of                  Requirements for Federal Awards (79                   audits is that program-specific audits
                                            Management and Budget’s Uniform                         FR 75867). As a part of the same                      require that the auditee prepare a
                                            Administrative Requirements, Cost                       rulemaking, OMB issued the interim                    financial statement and that the auditor
                                            Principles, and Audit Requirements for                  final Federal Awarding Agency                         perform an audit of the financial
                                            Federal Awards joint interim rule which                 Regulatory Implementation of Office of                statements. The guidance provided in 2
                                            was issued December 19, 2014 and                        Management and Budget’s Uniform                       CFR 910 corresponding to Compliance
                                            makes several technical corrections to                  Administrative Requirements, Cost                     Audits by for-profit entities is consistent
                                            DOE’s portion of the interim final rule.                Principles, and Audit Requirements for                with prior DOE guidance. The
                                               DOE is not making new policy with                    Federal Awards which contained a                      requirements in 2 CFR 910 do not
                                            either the interim final rule or this final             separate section for each federal                     require an auditee to prepare financial
                                            rule. All regulatory language included                  awarding agency. DOE’s regulations are                statements and do not require an auditor
                                            here is consistent with either the                      contained in 2 CFR part 910 (79 FR                    to perform an audit of financial
                                            policies in the Uniform Guidance or                     76024).                                               statements. Instead, the guidance in 2
                                            DOE’s existing policies and practices.                     DOE is finalizing this rule with                   CFR 910 specifies requirements to be
                                            DATES: Effective: October 26, 2015.                     technical corrections as detailed below.              met by the auditee and auditor that
                                                                                                       DOE received no comments from                      ensures the audit complies with
                                            FOR FURTHER INFORMATION CONTACT:
                                                                                                    members of the public in response to its              Generally Accepted Government
                                            Ellen Colligan, Procurement Analyst,
                                                                                                    section of the joint interim final rule.              Auditing Standards (GAGAS), Federal
                                            U.S. Department of Energy, Office of
                                                                                                    However, DOE has found areas where                    statutes and regulations, and the terms
                                            Acquisition Management, Contract and
                                                                                                    technical corrections are necessary.                  and conditions of Federal award. The
                                            Financial Assistance Policy Division
                                                                                                    Corrections are included only where it                effect is that 2 CFR 910 does not ‘‘create
                                            MA–611, Telephone: (202) 287–1776.
                                                                                                    has come to the attention of DOE that                 new policy or requirements . . .’’ in
                                            Email: ellen.colligan@hq.doe.gov.
                                                                                                    particular language in the final guidance             accordance with OMB implementing
                                            SUPPLEMENTARY INFORMATION:                              did not match with DOE’s intent and                   guidance (consistent with the existing
                                            Table of Contents                                       would result in an erroneous                          requirement in section 600.316). The
                                                                                                    implementation of the guidance. The                   corrections primarily replace the term
                                            I. Summary                                              technical corrections include:                        ‘‘Program-Specific’’ Audit with the term
                                            II. Procedural Requirements                                a. Adding the national interest                    ‘‘Compliance’’ Audit in order to
                                               A. Review under Executive Orders 12866               exception from competition (consistent                eliminate potential confusion between
                                                 and 13563.                                         with the existing requirement in section              the two types of audits.
tkelley on DSK3SPTVN1PROD with RULES




                                               B. Review under Executive Order 12988.               600.6(b)(8)). When carrying                              e. Making a wording change to
                                               C. Review under the Regulatory Flexibility
                                                 Act.
                                                                                                    requirements forward from our current                 910.502 to parallel a technical
                                               D. Review under the Paperwork Reduction              regulations, this section was                         correction made by OMB December 19,
                                                 Act.                                               inadvertently dropped from the                        2014. Wording change is to say that
                                               E. Review under the National                         regulations. We need this exception for               ‘‘. . . determination of when a Federal
                                                 Environmental Policy Act.                          instances where non-competitive                       award is expended must be based on


                                       VerDate Sep<11>2014   16:28 Sep 23, 2015   Jkt 235001   PO 00000   Frm 00001   Fmt 4700   Sfmt 4700   E:\FR\FM\24SER1.SGM   24SER1


                                            57510            Federal Register / Vol. 80, No. 185 / Thursday, September 24, 2015 / Rules and Regulations

                                            when the activity related to the Federal                 Information and Regulatory Affairs has                final rule implements OMB final
                                            award occurs . . .’’. The previous                       emphasized that such techniques may                   guidance issued on December 26, 2013,
                                            wording said that it should be based on                  include identifying changing future                   and will not have a significant economic
                                            when the activity related to the Federal                 compliance costs that might result from               impact beyond the impact of the
                                            award occurs. Making this change                         technological innovation or anticipated               December 2013 guidance.
                                            clarifies that there are no other factors                behavioral changes. DOE believes that
                                            to consider when determining when an                     today’s NOPR is consistent with these                 D. Review Under the Paperwork
                                            expenses are incurred under the Federal                  principles, including the requirement                 Reduction Act
                                            award.                                                   that, to the extent permitted by law,
                                                                                                                                                             In accordance with the Paperwork
                                                                                                     agencies adopt a regulation only upon a
                                            II. Procedural Requirements                                                                                    Reduction Act of 1995 (44 U.S.C. Ch.
                                                                                                     reasoned determination that its benefits
                                                                                                                                                           3506; 5 CFR 1320 Appendix A.1) (PRA),
                                            A. Review Under Executive Orders                         justify its costs and, in choosing among
                                                                                                     alternative regulatory approaches, those              DOE reviewed the interim final rule and
                                            12866 and 13563
                                                                                                     approaches maximize net benefits.                     determined that there are no new
                                               The regulatory action today has been                                                                        collections of information contained
                                            determined not to be a ‘‘significant                     B. Review Under Executive Order 12988                 therein. DOE’s procurement reporting
                                            regulatory action’’ under Executive                         With respect to the review of existing             and recordkeeping burdens have been
                                            Order 12866, ‘‘Regulatory Planning and                   regulations and the promulgation of                   approved under OMB Control No. 1910–
                                            Review,’’ 58 FR 51735 (October 4, 1993).                 new regulations, section 3(a) of                      4100.
                                            Accordingly, this rule is not subject to                 Executive Order 12988, ‘‘Civil Justice
                                            review under the Executive Order by the                                                                        E. Review Under the National
                                                                                                     Reform,’’ 61 FR 4729 (February 7, 1996),
                                            Office of Information and Regulatory                     imposes on Executive agencies the                     Environmental Policy Act
                                            Affairs within the Office of Management                  general duty to adhere to the following
                                            and Budget.                                                                                                      DOE has concluded that promulgation
                                                                                                     requirements: (1) Eliminate drafting                  of this rule falls into a class of actions
                                               DOE has also reviewed the regulation                  errors and ambiguity; (2) write
                                            pursuant to Executive Order 13563,                                                                             which would not individually or
                                                                                                     regulations to minimize litigation; and               cumulatively have significant impact on
                                            issued on January 18, 2011 (76 FR 3281                   (3) provide a clear legal standard for
                                            (Jan. 21, 2011)). Executive Order 13563                                                                        the human environment, as determined
                                                                                                     affected conduct rather than a general                by DOE’s regulations (10 CFR part 1021,
                                            is supplemental to and explicitly                        standard and promote simplification
                                            reaffirms the principles, structures, and                                                                      subpart D) implementing the National
                                                                                                     and burden reduction.
                                            definitions governing regulatory review                     With regard to the review required by              Environmental Policy Act (NEPA) of
                                            established in Executive Order 12866.                    section 3(a), section 3(b) of Executive               1969 (42 U.S.C. 4321 et seq.).
                                            To the extent permitted by law, agencies                 Order 12988 specifically requires that                F. Review Under Executive Order 13132
                                            are required by Executive Order 13563                    Executive agencies make every
                                            to: (1) Propose or adopt a regulation                    reasonable effort to ensure that the                    OMB determined that the joint
                                            only upon a reasoned determination                       regulation: (1) Clearly specifies the                 interim final rule does not have any
                                            that its benefits justify its costs                      preemptive effect, if any; (2) clearly                Federalism implications, as required by
                                            (recognizing that some benefits and                      specifies any effect on existing Federal              Executive Order 13132
                                            costs are difficult to quantify); (2) tailor             law or regulation; (3) provides a clear
                                            regulations to impose the least burden                   legal standard for affected conduct                   G. Review Under the Unfunded
                                            on society, consistent with obtaining                    while promoting simplification and                    Mandates Reform Act of 1995
                                            regulatory objectives, taking into                       burden reduction; (4) specifies the                      Section 202 of the Unfunded
                                            account, among other things, and to the                  retroactive effect, if any; (5) adequately            Mandates Reform Act of 1995
                                            extent practicable, the costs of                         defines key terms; and (6) addresses                  (Unfunded Mandates Act) (2 U.S.C.
                                            cumulative regulations; (3) select, in                   other important issues affecting clarity              1532) requires that covered agencies
                                            choosing among alternative regulatory                    and general draftsmanship under any                   prepare a budgetary impact statement
                                            approaches, those approaches that                        guidelines issued by the Attorney
                                            maximize net benefits (including                                                                               before promulgating a rule that includes
                                                                                                     General. Section 3(c) of Executive Order              any Federal mandate that may result in
                                            potential economic, environmental,                       12988 requires Executive agencies to
                                            public health and safety, and other                                                                            the expenditure by State, local, and
                                                                                                     review regulations in light of applicable
                                            advantages; distributive impacts; and                                                                          tribal governments, in the aggregate, or
                                                                                                     standards in section 3(a) and section
                                            equity); (4) to the extent feasible, specify                                                                   by the private sector, of $100 million or
                                                                                                     3(b) to determine whether they are met
                                            performance objectives, rather than                                                                            more in any one year. If a budgetary
                                                                                                     or it is unreasonable to meet one or
                                            specifying the behavior or manner of                                                                           impact statement is required, section
                                                                                                     more of them. DOE has completed the
                                            compliance that regulated entities must                  required review and determined that, to               205 of the Unfunded Mandates Act also
                                            adopt; and (5) identify and assess                       the extent permitted by law; these                    requires covered agencies to identify
                                            available alternatives to direct                         regulations meet the relevant standards               and consider a reasonable number of
                                            regulation, including providing                          of Executive Order 12988.                             regulatory alternatives before
                                            economic incentives to encourage the                                                                           promulgating a rule. OMB has
                                            desired behavior, such as user fees or                   C. Review Under the Regulatory                        determined that this joint interim final
                                            marketable permits, or providing                         Flexibility Act                                       rule will not result in expenditures by
                                            information upon which choices can be                       The Regulatory Flexibility Act (RFA)               State, local, and tribal governments, or
                                            made by the public.                                      requires an agency that is issuing a final            by the private sector, of $100 million or
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                                               DOE emphasizes as well that                           rule to provide a final regulatory                    more in any one year. Accordingly, the
                                            Executive Order 13563 requires agencies                  flexibility analysis or to certify that the           Federal agencies participating in this
                                            to use the best available techniques to                  rule will not have a significant                      joint interim final rule have not
                                            quantify anticipated present and future                  economic impact on a substantial                      prepared a budgetary impact statement
                                            benefits and costs as accurately as                      number of small entities. OMB                         or specifically addressed the regulatory
                                            possible. In its guidance, the Office of                 determined that the common interim                    alternatives considered.


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                                                             Federal Register / Vol. 80, No. 185 / Thursday, September 24, 2015 / Rules and Regulations                                         57511

                                            H. Review Under Executive Order 13211                    Management and Budget’s Uniform                       § 910.126   Competition.
                                               Executive Order 13211, ‘‘Actions                      Administrative Requirements, Cost                     *     *     *      *    *
                                            Concerning Regulations That                              Principles, and Audit Requirements for                  (b) * * *
                                            Significantly Affect Energy Supply,                      Federal Awards (79 FR 75867; DOE’s                      (3) Approved, prior to award, by an
                                            Distribution, or Use’’, 66 FR 28355 (May                 portion begins at 76024). In addition                 approver at least one level above the
                                            22, 2001), requires Federal agencies to                  DOE is publishing as final certain                    Contracting Officer.
                                            prepare and submit to the Office of                      technical amendments which were                         (c) * * *
                                            Information and Regulatory Affairs                       omitted from the interim final rule.
                                                                                                                                                             (8) The responsible program Assistant
                                            (OIRA), Office of Management and                         These amendments address internal
                                                                                                                                                           Secretary, Deputy Administrator, or
                                            Budget, a Statement of Energy Effects for                agency practices concerning how DOE
                                                                                                                                                           other official of equivalent authority has
                                            any significant energy action. A                         administers and have effect on members
                                                                                                                                                           determined that making the award non-
                                            ‘‘significant energy action’’ is defined as              of the public in general or on financial
                                                                                                                                                           competitively is in the public interest.
                                            any action by an agency that                             assistance applicants in particular.
                                                                                                                                                           This authority cannot not be delegated.
                                            promulgates or is expected to lead to                    Consequently, good cause exists for
                                                                                                     issuing these amendments as a final rule              *     *     *      *    *
                                            promulgation of a Final Rule, and that:
                                            (1) Is a significant regulatory action                   as notice and comment is unnecessary.                 ■ 3. Section 910.127 is added to read as
                                            under Executive Order 12866, or any                      K. Congressional Notification                         follows:
                                            successor order; and (2) is likely to have                 As required by 5 U.S.C. 801, DOE will               § 910.127   Legal authority and effect.
                                            a significant adverse effect on the                      report to Congress on the promulgation
                                            supply, distribution, or use of energy, or                                                                        (a) A DOE financial assistance award
                                                                                                     of this rule prior to its effective date.             is valid only if it is in writing and is
                                            (3) is designated by the Administrator of                The report will state that it has been
                                            OIRA as a significant energy action. For                                                                       signed, either in writing or
                                                                                                     determined that the rule is not a ‘‘major             electronically, by a DOE Contracting
                                            any significant energy action, the agency                rule’’ as defined by 5 U.S.C. 804(2).
                                            must give a detailed statement of any                                                                          Officer.
                                            adverse effects on energy supply,                        L. Approval by the Office of the                         (b) Recipients are free to accept or
                                            distribution or use should the proposal                  Secretary of Energy                                   reject the award. A request to draw
                                            be implemented, and of reasonable                                                                              down DOE funds constitutes the
                                                                                                        The Office of the Secretary of Energy              Recipient’s acceptance of the terms and
                                            alternatives to the action and their                     has approved issuance of this rule.
                                            expected benefits on energy supply,                                                                            conditions of this Award.
                                            distribution and use. Today’s rule is not                List of Subjects in 2 CFR Part 910                    ■ 4. Section 910.501 is amended by
                                            a significant energy action. Accordingly,                  Accounting, Administrative practice                 revising paragraphs (b)(1) and (2) to read
                                            DOE has not prepared a Statement of                      and procedure, Grant programs,                        as follows:
                                            Energy Effects.                                          Reporting and recordkeeping                           § 910.501   Audit requirements.
                                            I. Review Under the Treasury and                         requirements.
                                                                                                                                                           *      *      *     *     *
                                            General Government Appropriations                          Issued in Washington, DC, on September                 (b) Compliance audit. (1) If a for-profit
                                            Act, 2001                                                17, 2015.                                             entity has one or more DOE awards with
                                                                                                     Patrick Ferraro,                                      expenditures of $750,000 or more
                                              The Treasury and General
                                            Government Appropriations Act, 2001                      Director, Office of Acquisition Management.           during the for-profit entity’s fiscal year,
                                            (44 U.S.C. 3516, note) provides for                      Joseph Waddell,                                       they must have a compliance audit for
                                            agencies to review most disseminations                   Deputy Associate Administrator, Acquisition           each of the awards with $750,000 or
                                            of information to the public under                       and Project, Management, National Nuclear             more in expenditures. A compliance
                                            implementing guidelines established by                   Security Administration.                              audit should comply with the
                                            each agency pursuant to general                            Accordingly, the interim rule                       applicable provisions in § 910.514—
                                            guidelines issued by OMB. OMB’s                          amending 2 CFR part 910 which was                     Scope of Audit. The remaining awards
                                            guidelines were published at 67 FR                       published at 79 FR 75867 on December                  do not require, individually or in the
                                            8452 (February 22, 2002), and DOE’s                      19, 2014, is adopted as a final rule with             aggregate, a compliance audit.
                                            guidelines were published at 67 FR                       the following changes:                                   (2) If a for-profit entity receives more
                                            62446 (October 7, 2002). DOE has                                                                               than one award from DOE with a sum
                                            reviewed today’s notice under the OMB                    PART 910—UNIFORM                                      total of expenditures of $750,000 or
                                            and DOE guidelines and has concluded                     ADMINISTRATIVE REQUIREMENTS,                          more during the for-profit entity’s fiscal
                                            that it is consistent with applicable                    COST PRINCIPLES, AND AUDIT                            year, but does not have any single award
                                            policies in those guidelines.                            REQUIREMENTS FOR FEDERAL                              with expenditures of $750,000 or more;
                                                                                                     AWARDS                                                the entity must determine whether any
                                            J. Review Under the Administrative                                                                             or all of the awards have common
                                            Procedure Act                                            ■ 1. The authority citation for part 910              compliance requirements (i.e., are
                                              An agency may find good cause to                       continues to read as follows:                         considered a cluster of awards) and
                                            exempt a rule from the requirement for                     Authority: 42 U.S.C. 7101, et seq.; 31              determine the total expenditures of the
                                            a notice of rulemaking and the                           U.S.C. 6301–6308; 50 U.S.C. 2401 et seq.; 2           awards with common compliance
                                            opportunity for public under the                         CFR part 200.                                         requirements. A compliance audit is
                                            Administrative Procedure Act (APA) if                    ■  2. Section 910.126 is amended by:                  required for the largest cluster of awards
                                            the requirement is determined to be                      ■  a. Removing ‘‘and’’ at the end of                  (if multiple clusters of awards exist) or
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                                            unnecessary, impracticable, or contrary                  paragraph (b)(1);                                     the largest award not in a cluster of
                                            to the public interest under 5 U.S.C.                    ■ b. Removing the punctuation at the                  awards, whichever corresponding
                                            533(b)(3)(B). Today’s rule finalizes DOE                 end of paragraph (b)(2), and adding in                expenditure total is greater. A
                                            portion of issued the interim final                      its place ‘‘; and’’; and                              compliance audit should comply with
                                            Federal Awarding Agency Regulatory                       ■ c. Adding paragraphs (b)(3) and (c)(8).             the applicable provisions in § 910.514—
                                            Implementation of Office of                                 The additions read as follows:                     Scope of Audit. The remaining awards


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                                            57512            Federal Register / Vol. 80, No. 185 / Thursday, September 24, 2015 / Rules and Regulations

                                            do not require, individually or in the                   Counsel, Office of General Counsel,                    with the Small Business Regulatory
                                            aggregate, a compliance audit;                           National Credit Union Administration,                  Enforcement Fairness Act of 1996.3 The
                                            *     *      *    *     *                                1775 Duke Street, Alexandria, Virginia                 RFA, in part, requires federal agencies
                                            ■ 5. Section 910.507 is amended by:                      22314–3428 or telephone:                               to determine whether a proposed or
                                            ■ a. Revising the section heading;                       (703) 518–6543.                                        final rule would have a significant
                                            ■ b. Removing the second occurrence of                   SUPPLEMENTARY INFORMATION:                             economic impact on a substantial
                                            ‘‘program-specific audit’’ in the last                                                                          number of small entities.4 If so, the RFA
                                                                                                     I. Background
                                            sentence in paragraph (a) introductory                   II. Summary of Public Comments                         requires agencies to engage in a small
                                            text and adding in its place ‘‘compliance                III. The Final Rule and IRPS                           entity impact analysis, known as an
                                            audit’’;                                                 IV. Regulatory Procedures                              initial regulatory flexibility analysis
                                            ■ c. Removing ‘‘Program-specific                                                                                (IRFA) for proposed rules and a final
                                            audits’’ in the second sentence in                       I. Background                                          regulatory flexibility analysis (FRFA) for
                                            paragraph (b) introductory text and                                                                             final rules.5 The IRFA and FRFA (or a
                                                                                                     A. What changes does this final rule and
                                            adding in its place ‘‘Compliance                                                                                summary of them) must be published in
                                                                                                     IRPS make?                                             the Federal Register.6 If an agency
                                            audits’’.
                                               The revision reads as follows:                          The RFA, as amended, generally                       determines that a proposed or final rule
                                                                                                     requires federal agencies to determine                 will not have a ‘‘significant economic
                                            § 910.507   Compliance audits.                           and consider the impact of proposed                    impact on a substantial number of small
                                            *     *     *     *    *                                 and final rules on small entities. Since               entities,’’ the agency may certify as
                                            ■ 6. In § 910.502 introductory text,                     adopting IRPS 13–1 in 2013, the Board                  much in the Federal Register and forego
                                            revise the subject heading and the first                 has defined ‘‘small entity’’ in this                   the IRFA and FRFA.7
                                            sentence to read as follows:                             context as a federally insured credit                     For an IRFA, the procedural
                                                                                                     union (FICU) with less than $50 million                requirements include, among other
                                            § 910.502 Basis for determining DOE                      in assets.1 This final rule and IRPS                   things, ‘‘a description of and, where
                                            awards expended.                                         15–1 redefines ‘‘small entity’’ as a FICU              feasible, an estimate of the number of
                                              Determining Federal awards                             with less than $100 million in assets. In              small entities to which the proposed
                                            expended. The determination of when a                    addition, the final rule amends                        rule will apply,’’ a description of
                                            Federal award is expended must be                        § 791.8(a) of NCUA’s regulations to                    reporting, recordkeeping, and other
                                            based on when the activity related to the                reference IRPS 15–1. Section 791.8(a)                  compliance burden, and an
                                            DOE award occurs. * * *                                  governs NCUA’s procedures for                          identification of any overlapping or
                                            *    *    *     *    *                                   developing regulations and incorporates                conflicting federal rules.8 In addition,
                                            [FR Doc. 2015–24276 Filed 9–23–15; 8:45 am]              IRPS 87–2 and each of its amendments.                  the IRFA must ‘‘contain a description of
                                            BILLING CODE 6450–01–P                                                                                          any significant alternatives to the
                                                                                                     B. What changes were proposed?                         proposed rule which accomplish the
                                                                                                        On February 19, 2015, the Board                     stated objectives . . . and which
                                            NATIONAL CREDIT UNION                                    issued a proposed rulemaking and IRPS                  minimize any significant economic
                                            ADMINISTRATION                                           with a 60-day comment period.2 In                      impact of the proposed rule on small
                                                                                                     doing so, the Board proposed to increase               entities.’’ 9 This discussion must include
                                            12 CFR Part 791                                          from $50 million to $100 million the                   alternatives such as allowing ‘‘differing
                                            RIN 3133–AE45                                            asset threshold used to define small                   compliance or reporting requirements or
                                                                                                     entity under the RFA. In support of                    timetables,’’ ‘‘the clarification,
                                            Promulgation of NCUA Rules and                           proposing to double, rather than                       consolidation, or simplification of
                                            Regulations                                              incrementally increase, the RFA                        compliance and reporting
                                                                                                     threshold, the Board weighed                           requirements,’’ ‘‘the use of performance
                                            AGENCY:  National Credit Union                           competitive disadvantages within the                   rather than design standards,’’ and a full
                                            Administration (NCUA).                                   credit union industry, relative threats to             or partial exemption for small entities.10
                                            ACTION: Final rule and Interpretive                      the National Credit Union Share                           The FRFA must meet requirements
                                            Ruling and Policy Statement 15–1.                        Insurance Fund (Insurance Fund), and                   similar to that of the IRFA, but must
                                                                                                     the need for broader regulatory relief.                also discuss and respond to public
                                            SUMMARY:   The NCUA Board (Board) is                                                                            comments and describe ‘‘the steps the
                                            issuing a final rule to amend                            The proposed increase would provide
                                                                                                     an additional 733 small FICUs with                     agency has taken to minimize the
                                            Interpretive Ruling and Policy                                                                                  significant economic impact on small
                                            Statement (IRPS) 87–2, as amended by                     special consideration of the economic
                                                                                                     impact of proposed and final                           entities . . . , including a statement of
                                            IRPS 03–2 and 13–1. The amended IRPS                                                                            factual, policy, and legal reasons for
                                            increases the asset threshold used to                    regulations, bringing the total number of
                                                                                                     FICUs covered by the RFA to                            selecting the alternative adopted in the
                                            define the term ‘‘small entity’’ under the                                                                      final rule and why each one of the other
                                            Regulatory Flexibility Act (RFA) from                    approximately 4,690. The proposed rule
                                            $50 million to $100 million and,                         and IRPS 15–1 retained the three-year
                                                                                                                                                              3 Public Law 104–121. A principal purpose of the
                                            thereby, provides transparent                            review cycle the Board adopted in 2013.
                                                                                                                                                            1996 amendment was to provide an opportunity for
                                            consideration of regulatory relief for a                 Finally, the proposal referenced IRPS                  judicial review of agency compliance with the RFA.
                                            greater number of credit unions in                       15–1 in § 791.8(a) of NCUA’s regulations               Id.
                                            future rulemakings. The final rule and                   governing regulatory procedures.                         4 5 U.S.C. 603, 604, 605(b).
                                                                                                                                                              5 5 U.S.C. 603, 604.
                                            IRPS also makes a technical change to                    C. What is the history and purpose of                    6 Id.
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                                            NCUA’s regulations in connection with                    the RFA?                                                 7 5 U.S.C. 605(b).

                                            procedures for developing regulations.                     Congress enacted the RFA in 1980,
                                                                                                                                                              8 5 U.S.C. 603(b). The IRFA must also include a

                                            DATES: This rule and IRPS are effective                                                                         description of why the agency is considering action
                                                                                                     Public Law 96–354, and amended it                      and ‘‘a succinct statement of the objectives of, and
                                            November 23, 2015.                                                                                              legal basis for, the proposed rule. . . .’’ Id.
                                            FOR FURTHER INFORMATION CONTACT:                           1 IRPS   13–1, 78 FR 4032 (Jan. 18, 2013).             9 5 U.S.C. 603(c).

                                            Kevin Tuininga, Lead Liquidations                          2 80   FR 11954 (Mar. 5, 2015).                        10 Id.




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Document Created: 2018-02-26 10:18:01
Document Modified: 2018-02-26 10:18:01
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 26, 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 57509 
RIN Number1991-AB94
CFR AssociatedAccounting; Administrative Practice and Procedure; Grant Programs and Reporting and Recordkeeping Requirements

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