[Federal Register Volume 85, Number 105 (Monday, June 1, 2020)]
[Rules and Regulations]
[Pages 32977-32980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10577]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 85, No. 105 / Monday, June 1, 2020 / Rules
and Regulations
[[Page 32977]]
DEPARTMENT OF ENERGY
2 CFR Part 910
RIN 1991-AC15
Financial Assistance Regulations--Deviation Authority
AGENCY: Office of Acquisition Management, Department of Energy.
ACTION: Interim final rule.
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SUMMARY: The Department of Energy (DOE) publishes this interim final
rule to amend DOE's Financial Assistance Regulations to authorize
deviations, when necessary to achieve program objectives; necessary to
conserve public funds; otherwise essential to the public interest; or
necessary to achieve equity.
DATES:
Effective date: This rulemaking is effective as of June 1, 2020.
Comment date: Written comments must be received on or before close
of business July 31, 2020.
ADDRESSES: You may submit comments, identified by ``DOE Financial
Assistance Regulations--Deviation Authority and RIN 1991-AC15,'' by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Email to: [email protected]. Include Financial
Assistance Regulations--Deviation Authority and RIN 1991-AC15 in the
subject line of the message.
FOR FURTHER INFORMATION CONTACT: Mr. John Harris, U.S. Department of
Energy, Office of Acquisition Management, at (202) 287-1471 or by email
at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
III. Procedural Requirements
A. Review Under Executive Orders 12866 and 13563
B. Review Under Executive Orders 13771 and 13777
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under the National Environmental Policy Act
F. Review Under Executive Order 12988
G. Review Under Executive Order 13132
H. Review Under the Unfunded Mandates Reform Act of 1995
I. Review Under the Treasury and General Government
Appropriations Act, 1999
J. Review Under Executive Order 13211
K. Review Under the Treasury and General Government
Appropriations Act, 2001
L. Congressional Notification
M. The Administrative Procedure Act
N. Approval by the Office of the Secretary of Energy
I. Background
The purpose of this interim final rule is to amend DOE's Financial
Assistance Regulations at 2 CFR part 910, to add deviation authority to
provide the Director for the Office of Acquisition Management, for DOE
actions, and the Deputy Associate Administrator for the Office of
Acquisition and Project Management for the National Nuclear Security
Administration (NNSA), for NNSA actions, or designee the authority to
authorize deviations, when (1) necessary to achieve program objectives;
(2) necessary to conserve public funds; (3) otherwise essential to the
public interest; or (4) necessary to achieve equity. This interim final
rule will reinstate deviation authority in 2 CFR part 910 to give DOE
the authority to deviate from its financial assistance regulations.
This deviation authority was originally in 10 CFR 600.4 but was not
carried over in 2 CFR part 910 when DOE amended its Financial
Assistance Regulations by adopting the Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards as provided in OMB Guidance in 2 CFR part 200. 79 FR 75867,
76024 (Dec. 19, 2014). In addition to adopting these requirements in
its regulations, DOE amended its regulations to supplement the OMB
Guidance. DOE did not, however, include in its supplementary amendments
authority for the Department to deviate or approve exceptions to its
regulations in 2 CFR part 910.
Previous to the adoption and addition of the regulations above, DOE
had the authority to deviate from its financial assistance regulations.
See 10 CFR 600.4(c)(2)(i) and (ii).
II. Section-by-Section Analysis
DOE proposes to amend Chapter 9 of Title 2 of the Code of Federal
Regulations as set forth below:
Subpart B is amended to add Sec. 910.133 to part 910, adding
deviation authority to provide the Director for the Office of
Acquisition Management, for DOE actions, and the Deputy Associate
Administrator for the Office of Acquisition and Project Management for
NNSA, for NNSA actions, or designee the authority to authorize
deviations, when (1) necessary to achieve program objectives; (2)
necessary to conserve public funds; (3) otherwise essential to the
public interest; or (4) necessary to achieve equity. This deviation
authority was originally in 10 CFR 600.4 but was not carried over in 2
CFR part 910.
In drafting the rule, DOE is reinstating deviation authority that
was originally in 10 CFR 600.4 but was not carried over in 2 CFR part
910 to give DOE/NNSA authority to approve a deviation when the
conditions above have been met and as authorized by the designated
officials. Deviation authority is different than the exemption
authority set forth at 2 CFR 200.102 because it covers only agency-
specific regulations.
III. Procedural Requirements
A. Review Under Executive Orders 12866 and 13563
This regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, this action was not subject to review under that Executive
order by the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB).
B. Review Under Executive Orders 13771 and 13777
On January 30, 2017, the President issued Executive Order 13771,
``Reducing Regulation and Controlling Regulatory Costs.'' That order
stated that the policy of the executive branch is to be prudent and
financially responsible in the expenditure of funds, from both public
and private sources. The order stated that it is essential to manage
the costs associated with the governmental imposition of private
expenditures required to comply with Federal regulations.
[[Page 32978]]
Additionally, on February 24, 2017, the President issued Executive
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The order
required the head of each agency to designate an agency official as its
Regulatory Reform Officer (RRO). Each RRO oversees the implementation
of regulatory reform initiatives and policies to ensure that agencies
effectively carry out regulatory reforms, consistent with applicable
law. Further, E.O. 13777 requires the establishment of a regulatory
task force at each agency. The regulatory task force is required to
make recommendations to the agency head regarding the repeal,
replacement, or modification of existing regulations, consistent with
applicable law. At a minimum, each regulatory reform task force must
attempt to identify regulations that:
(i) Eliminate jobs, or inhibit job creation;
(ii) Are outdated, unnecessary, or ineffective;
(iii) Impose costs that exceed benefits;
(iv) Create a serious inconsistency or otherwise interfere with
regulatory reform initiatives and policies;
(v) Are inconsistent with the requirements of the Information
Quality Act, or the guidance issued pursuant to that Act, particularly
those regulations that rely in whole or in part on data, information,
or methods that are not publicly available or that are insufficiently
transparent to meet the standard for reproducibility; or
(vi) Derive from or implement Executive orders or other
Presidential directives that have been subsequently rescinded or
substantially modified.
DOE concludes that this interim final rule is consistent with the
directives set forth in these Executive orders. This interim final rule
reinstates DOE's authority under 2 CFR part 910 to deviate from its
financial assistance regulations under specified circumstances as was
originally provided under 10 CFR 600.4.
C. Review Under Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. Because a
notice of proposed rulemaking is not required for this action pursuant
to 5 U.S.C. 553, or any other law, no regulatory flexibility analysis
has been prepared for this interim final rule.
D. Review Under the Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Ch. 3506; 5 CFR part 1320 appendix A.1) (PRA), DOE reviewed this
interim final rule and determined that there are no new collections of
information contained therein. DOE's associated information collection
has been approved under OMB Control No. 1910-4100.
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this interim final rule
falls into a class of actions that would not individually or
cumulatively have a significant impact on the human environment, as
determined by DOE's regulations implementing the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA). Specifically, DOE
has determined that this interim final rule is covered under the
categorical exclusion found in DOE's NEPA regulations at paragraphs A5
and A6 of Appendix A to Subpart D, 10 CFR part 1021. Categorical
exclusion A5 applies to a rulemaking that amends an existing rule or
regulation and that does not change the environmental effect of the
rule or regulation being amended. Categorical exclusion A6 applies to
rulemakings that are strictly procedural. Accordingly, neither an
environmental assessment nor an environmental impact statement is
required.
F. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' (61 FR 4729, February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction.
Section 3(b) of Executive Order 12988 specifically requires that
Executive agencies make every reasonable effort to ensure that the
regulation: (1) Clearly specifies the preemptive effect, if any; (2)
clearly specifies any effect on existing Federal law or regulation; (3)
provides a clear legal standard for affected conduct while promoting
simplification and burden reduction; (4) specifies the retroactive
effect, if any; (5) adequately defines key terms; and (6) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the United States Attorney General.
Section 3(c) of Executive Order 12988 requires Executive agencies to
review regulations in light of applicable standards in section 3(a) and
section 3(b) to determine whether they are met or if it is unreasonable
to meet one or more of them. DOE has completed the required review and
determined that, to the extent permitted by law, this rule meets the
relevant standards of Executive Order 12988.
G. Review Under Executive Order 13132
Executive Order 13132, (64 FR 43255, August 4, 1999), imposes
certain requirements on agencies formulating and implementing policies
or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. The Executive Order requires agencies to
have an accountability process to ensure meaningful and timely input by
state and local officials in the development of regulatory policies
that have federalism implications.
On March 14, 2000, DOE published a statement of policy describing
the intergovernmental consultation process it will follow in the
development of such regulations (65 FR 13735). DOE has examined this
interim final rule and has determined that it does not preempt State
law and does not have a substantial direct effect on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. No further action is required by Executive Order 13132.
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531).
For a regulatory action likely to result in a rule that may cause the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year
(adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits,
[[Page 32979]]
and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The
UMRA also requires a Federal agency to develop an effective process to
permit timely input by elected officers of State, local, and Tribal
governments on a ``significant intergovernmental mandate,'' and
requires an agency plan for giving notice and opportunity for timely
input to potentially affected small governments before establishing any
requirements that might significantly or uniquely affect them. On March
18, 1997, DOE published a statement of policy on its process for
intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy
statement is also available at http://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf. UMRA sections 202 and 205 do not apply to
this action because they apply only to rules for which a general notice
of proposed rulemaking is published. Nevertheless, DOE has determined
that this interim final rule does not contain a Federal
intergovernmental mandate, nor is it expected to require expenditures
of $100 million or more in any one year by the private sector.
I. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for any rulemaking or policy that may
affect family well-being. This rulemaking will have no impact on the
autonomy or integrity of the family as an institution. Accordingly, DOE
has concluded that it is not necessary to prepare a Family Policymaking
Assessment.
J. Review Under Executive Order 13211.
Executive Order 13211, Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use, (66 FR 28355,
May 22, 2001), requires Federal agencies to prepare and submit to the
Office of Information and Regulatory Affairs (OIRA), of the Office of
Management and Budget (OMB), a Statement of Energy Effects for any
proposed significant energy action. A ``significant energy action'' is
defined as any action by an agency that promulgates or is expected to
lead to promulgation of a final rule, and that: (1) Is a significant
regulatory action under Executive Order 12866, or any successor order,
(2) is likely to have a significant adverse effect on the supply,
distribution, or use of energy, or (3) is designated by the
Administrator of OIRA as a significant energy action. For any proposed
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution and use.
This interim final rule is not a significant energy action.
Accordingly, DOE has not prepared a Statement of Energy Effects.
K. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this
interim final rule under the OMB and DOE guidelines and has concluded
that it is consistent with applicable policies in those guidelines.
L. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this interim final rule prior to its effective date.
The report will state that it has been determined that this interim
final rule is not a ``major rule'' as defined by 5 U.S.C. 801(2).
M. The Administrative Procedure Act
In accordance with 5 U.S.C. 553(b), the Administrative Procedure
Act, DOE generally publishes a rule in a proposed form and solicits
public comment on it before issuing the rule in final. This rulemaking,
as a matter relating to grants, is exempt from the requirement to
publish a notice of proposed rulemaking under 5 U.S.C. 553(a)(2).
DOE, however, is publishing this rule as an interim final rule and
allowing for public comments sixty (60) days after date of publication
in the Federal Register.
N. Approval by the Office of the Secretary of Energy
Issuance of this interim final rule has been approved by the Office
of the Secretary of Energy.
List of Subjects in 2 CFR Part 910
Accounting, Administrative practice and procedure, Grant programs,
Reporting and recordkeeping requirements.
Signing Authority
This document of the Department of Energy was signed on May 4,
2020, by S. Keith Hamilton, Deputy Associate Administrator for
Acquisition and Project Management and Senior Procurement Executive,
National Nuclear Security Administration, pursuant to delegated
authority from the Administrator, National Nuclear Security
Administration, and John R. Bashista, Director, Office of Acquisition
Management and Senior Procurement Executive, Department of Energy,
pursuant to delegated authority from the Secretary of Energy. These
documents with the original signature and date are maintained by DOE/
NNSA. For administrative purposes only, and in compliance with
requirements of the Office of the Federal Register, the undersigned DOE
Federal Register Liaison Officer has been authorized to sign and submit
the document in electronic format for publication, as an official
document of the Department of Energy. This administrative process in no
way alters the legal effect of this document upon publication in the
Federal Register.
Signed in Washington, DC, on May 13, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set out in the preamble, DOE amends chapter 9 of
title 2 of the Code of Federal Regulations as follows:
PART 910--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND
AUDIT REQUIREMENTS FOR FEDERAL AWARDS
0
1. The authority citation for part 910 continues to read as follows:
Authority: 42 U.S.C. 7101, et seq.; 31 U.S.C. 6301-6308; 50
U.S.C. 2401 et seq.; 2 CFR part 200.
0
2. Subpart B is amended by adding Sec. 910.133 to read as follows:
Sec. 910.133 Deviation authority.
(a) General. (1) A deviation is the use of any policy, procedure,
form, standard, term, or condition which varies from a requirement of
this part, or the waiver of any such requirement, unless such use or
waiver is authorized or precluded by Federal statute. The use of
optional or discretionary provisions of this part, including special
restrictive conditions used in accordance with Sec. 910.372,
exceptions under 2 CFR 200.102, and the waiver of the cost sharing
requirements in Sec. 910.130 are
[[Page 32980]]
not deviations. Awards to foreign entities are not subject to this
section.
(2) A single-case deviation is a deviation which applies to one
financial assistance transaction and one applicant, recipient, or
subrecipient only.
(3) A class deviation is a deviation which applies to more than one
financial assistance transaction, applicant, recipient, or
subrecipient.
(b) Conditions for approval. The DOE/NNSA officials specified in
paragraph (c) of this section may authorize a deviation only upon a
written determination that the deviation is--
(1) Necessary to achieve program objectives;
(2) Necessary to conserve public funds;
(3) Otherwise essential to the public interest; or
(4) Necessary to achieve equity.
(c) Approval procedures. (1) A deviation request must be in writing
and must be submitted to the responsible DOE/NNSA Contracting Officer.
An applicant for a subaward or a subrecipient shall submit any such
request through the recipient.
(2) Except as provided in paragraph (c)(3) of this section--
(i) A single-case deviation may be authorized by the responsible
HCA.
(ii) A class deviation may be authorized by the Director, Office of
Acquisition Management, for DOE actions, and the Deputy Associate
Administrator for the Office of Acquisition and Project Management for
NNSA, for NNSA actions, or designee.
(3) Whenever the approval of OMB, other Federal agency, or other
DOE/NNSA office is required to authorize a deviation, the proposed
deviation must be submitted to the Director, Office of Acquisition
Management, for DOE actions, and the Deputy Associate Administrator for
the Office of Acquisition and Project Management for NNSA, for NNSA
actions, or designee for concurrence prior to submission to the
authorizing official.
(d) Notice. Whenever a request for a class deviation is approved,
DOE/NNSA will identify this class deviation (as applicable) in the
Notice of Funding Opportunity(s) that may be affected.
(e) Subawards. A recipient may use a deviation in a subaward only
with the prior written approval of a DOE/NNSA Contracting Officer.
[FR Doc. 2020-10577 Filed 5-29-20; 8:45 am]
BILLING CODE 6450-01-P