[Federal Register Volume 84, Number 223 (Tuesday, November 19, 2019)]
[Proposed Rules]
[Pages 63831-63836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24385]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 75
RIN 0991-AC16
Office of the Assistant Secretary for Financial Resources; Health
and Human Services Grants Regulation
AGENCY: Division of Grants, Office of Grants Policy, Oversight, and
Evaluation, Office of the Assistant Secretary for Financial Resources,
Department of Health and Human Services.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This is a notice of proposed rulemaking to repromulgate or
revise certain regulatory provisions of the Department of Health and
Human Services, Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for HHS Awards.
DATES: Comments must be submitted on or before December 19, 2019.
ADDRESSES: Comments must be identified by RIN 0991-AC16. Because of
staff and resource limitations, comments must be submitted
electronically to www.regulations.gov. Follow the ``Submit a comment''
instructions.
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including personally identifiable or confidential business information
that is included in a comment. Before or after the close of the comment
period, the Department of Health and Human Services will post all
comments that were received before the end of the comment period on
www.regulations.gov. Follow the search instructions on that website to
view the public comments.
FOR FURTHER INFORMATION CONTACT: Richard Brundage at (202) 401-6107.
SUPPLEMENTARY INFORMATION: This is a notice of proposed rulemaking by
which the Department proposes to repromulgate provisions of 45 CFR part
75 that were set forth in a final rule published in the Federal
Register at 81 FR 89393 (Dec. 12, 2016) (Final Rule). The Department,
in a document published in this edition of the Federal Register,
publishes its decision to exercise its enforcement discretion to not
enforce the regulatory provisions adopted or amended by the Final Rule
due to HHS's serious concerns about compliance with certain
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-12. In
this document, the Department proposes to repromulgate some of the
provisions of the Final Rule, not to repromulgate others, and to
replace or modify certain provisions that were included in the Final
Rule with other provisions.
I. Background
On December 26, 2013, the Office of Management and Budget (OMB)
issued the Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards (UAR or uniform regulations) that
``set standard requirements for financial management of Federal awards
across the entire federal government.'' 78 FR 78590 (Dec. 26, 2013). On
December 19, 2014, the Department, in conjunction
[[Page 63832]]
with OMB and other federal award-making agencies, issued an interim
final rule to implement the UAR. Federal Awarding Agency Regulatory
Implementation of Office of Management and Budget's Uniform
Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards; Final Rule, 79 FR 75867 (Dec. 19, 2014).
On July 13, 2016, the Department issued a notice of proposed
rulemaking (``NPRM''), proposing additional changes to its
implementation of the UAR. 81 FR 45270 (July 13, 2016). That rule
proposed changes to:
Sec. 75.102, concerning requirements related to the
Indian Self Determination and Education Assistance Act (ISDEAA);
Sec. 75.300, concerning certain public policy
requirements and Supreme Court cases, and Sec. 75.101, concerning the
applicability of those provisions to the Temporary Assistance for Needy
Families Program (Title IV-A of the Social Security Act, 42 U.S.C. 601-
19);
Sec. 75.305, concerning the applicability to states of
certain payment provisions;
Sec. 75.365, concerning certain restrictions on public
access to records;
Sec. 75.414, concerning indirect cost rates for certain
grants; and
Sec. 75.477, concerning shared responsibility payments
and payments for failure to offer health coverage to employees.
On December 12, 2016, the Department finalized all of these
provisions without substantive change, except that the Department
explained it was choosing not to finalize the proposed change to Sec.
75.102 at that time.\1\ (81 FR 89393) The Final Rule went into
effective on January 11, 2017.
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\1\ The Final Rule also made a technical change not set forth in
the proposed rule, amending Sec. [thinsp]75.110(a) by removing
``75.355'' and adding, in its place, ``75.335.''
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In a document published elsewhere in this edition of the Federal
Register, the Department explains that HHS is exercising enforcement
discretion regarding compliance with the Final Rule, due to serious
concerns about the Final Rule's compliance with the requirements of the
Regulatory Flexibility Act, 5 U.S.C. 601-12. With respect to the Final
Rule, the Department is concerned about whether it provided a
sufficient rationale and certification that the rule would not have a
significant economic impact on a substantial number of small
entities,\2\ or a sufficient final regulatory flexibility analysis at
the time of publication of the Final Rule in the Federal Register. As a
result, the Department is choosing not to enforce the provisions of the
Final Rule. See 5 U.S.C. 608(b) and 611. However, merely because a
regulation is not being enforced does not mean that it has been
repealed or replaced. The Final Rule still appears in the Code of
Federal Regulations. Therefore, this NPRM should be properly viewed as
a proposal to modify or to repeal certain provisions in the Final Rule.
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\2\ To the extent that the Department believed that the Final
Rule did not have a significant economic impact on a substantial
number of small entities, the certification and statement with the
factual basis for such certification was also not provided to the
Chief Counsel for Advocacy of the Small Business Administration,
contrary to the requirements of the Regulatory Flexibility Act. See
5 U.S.C. 605(b).
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II. Summary of the Notice of Proposed Rulemaking
The Department proposes to repromulgate some (but not all) of the
regulatory provisions included in the Final Rule and to issue new and
amended provisions.
A. Technical Correction, Sec. 75.110
The Department is proposing to retain, without change, Sec.
75.110, as it corrected a typographical error in the pre-2017 rule.
B. Statutory and National Policy Requirements, Sec. 75.300, and
Related Provisions at Sec. 75.101
The Department is modifying Sec. 75.300 and proposing not to
retain Sec. 75.101(f) from the Final Rule. This is because the
Department has faced several complaints, requests for exceptions, and
lawsuits concerning Sec. 75.300(c) and (d). The Department is also
currently preliminarily enjoined from enforcing Sec. 75.300(c) in the
State of Michigan as to a particular subgrantee's protected speech and
religious exercise. See Buck v. Gordon, No. 1:19-cv-286 (W.D. Mich.
Sept. 26, 2019) (ECF No. 70) (``Defendant Azar shall not take any
enforcement action against the State under 45 CFR 75.300(c) based upon
[plaintiff's] protected religious exercise. . . .''). Some non-Federal
entities have expressed concerns that requiring compliance with certain
non-statutory requirements of those paragraphs violates the Religious
Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb, et seq., or the U.S.
Constitution, exceeds the Department's statutory authority, or reduces
the effectiveness of programs, for example, by reducing foster care
placements in the Title IV-E program of HHS's Administration for
Children and Families. The existence of these complaints and legal
actions indicates that Sec. 75.300(c) and (d) imposed regulatory
burden and created a lack of predictability and stability for the
Department and stakeholders with respect to these provisions' viability
and enforcement.
Some members of the public have submitted comments to the
Department citing possible burdens created by paragraphs (c) and (d) as
they were included in the Final Rule.\3\ To date, the Department has
granted, pursuant to 45 CFR 75.102(b), one request for an exception to
the application of the religious nondiscrimination requirement of Sec.
75.300(c).\4\ That grant of an exception has been challenged under the
Administrative Procedure Act. Some Federal grantees have stated that
they will require their subgrantees to comply with the non-statutory
requirements of Sec. 75.300(c) and (d), even if it means some
subgrantees with religious objections will leave the program(s) and
cease providing services rather than comply. The Department believes
that such an outcome would likely reduce the effectiveness of programs
funded by federal grants by reducing the number of entities available
to provide services under these programs. The Department is also aware
that certain grantees and subgrantees that may cease providing services
if forced to comply with Sec. 75.300(c) and (d) are providing a
substantial percentage of services pursuant to some Department-funded
programs and are effective partners of federal and state government in
providing such services.
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\3\ See https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&s=75.300&dct=PS&D=HHS-OS-2017-0002.
\4\ That waiver is available on the State of South Carolina's
website at https://governor.sc.gov/sites/default/files/Documents/newsroom/HHS%20Response%20Letter%20to%20McMaster.pdf.
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The Department accordingly proposes that Sec. 75.300 include
different provisions in paragraphs (c) and (d) than those that were
included in the Final Rule. The Department takes this action as an
exercise of its discretion to establish requirements for its grant
programs and to establish enforcement priorities with respect to those
programs.
This document proposes that paragraph (c) state, ``It is a public
policy requirement of HHS that no person otherwise eligible will be
excluded from participation in, denied the benefits of, or subjected to
discrimination in the administration of HHS programs and services, to
the extent doing so is prohibited by federal statute.''
[[Page 63833]]
The Department considers this proposed language for paragraph (c)
appropriate because it affirms that HHS grants programs will be
administered consistent with the Federal statutes that govern the
programs, including the nondiscrimination statutes that Congress has
adopted and made applicable to the Department's programs, RFRA, and
with all applicable Supreme Court decisions. The proposed language
would provide guidance for compliance when non-statutory public policy
requirements conflict with statutory requirements (e.g., RFRA). Section
75.300(a) does not, on its face and standing alone, provide a clear
pathway for compliance in such situations. The adoption of regulatory
language that makes compliance more predictable and simpler for federal
grant recipients is generally consistent with the concept of
controlling regulatory costs and relieving regulatory burdens. Exec.
Order No. 13771, 82 FR 9339 (Feb. 3, 2017).
This document also proposes that paragraph (d) state, ``HHS will
follow all applicable Supreme Court decisions in administering its
award programs.''
Paragraph (d) as included in the Final Rule specified two Supreme
Court decisions. But the Department is committed to complying not just
with those decisions, but with all applicable Supreme Court decisions
and all applicable court orders. Because Federal courts issue new
decisions daily, and courts often adjust, clarify, expand upon, or
narrow prior holdings, the Department believes that, if its Department-
wide regulations include general provisions addressing compliance with
Supreme Court decisions, the regulations should do so without singling
out specific cases, since it is not possible to list every applicable
case, nor to change the regulations each time new decisions are
issued.\5\
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\5\ In this regard, the Department distinguishes between the
regulations it promulgates that are generally applicable to all of
the Department's activities, such as all of its grants and grant-
making programs, and regulations that are promulgated to implement a
particular program--and between Supreme Court decisions that are
generally applicable to the federal government and those that
specifically address and bind the Department (or a component of the
Department) with respect to a specific program.
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In light of the considerations discussed above, the Department
proposes to modify paragraphs (c) and (d) to require compliance with
all applicable nondiscrimination statutes and Supreme Court decisions.
The Department believes the proposed language of paragraphs (c) and (d)
would allow its programs to comply with all applicable laws and court
decisions, to minimize disputes and litigation, and to remove
regulatory barriers. OMB's UAR, at 2 CFR 200.300, does not impose
specific public policy requirements beyond U.S. statutory requirements.
The Department considers it appropriate for paragraph (c) to similarly
focus on statutory requirements and for paragraph (d) to inform
grantees that the Department complies with applicable Supreme Court
decisions in administering its grant programs.
The Department does not propose to include paragraph (f) in Sec.
75.101, which was included in the Final Rule to ensure that the
specific statutory requirements of the Temporary Assistance for Needy
Families Program (Title IV-A of the Social Security Act, 42 U.S.C. 601-
619) governed applicable grants. This language would not be necessary
under the proposed language of Sec. 75.300(c), because the latter
would already be limited to applicable statutory nondiscrimination
requirements.
C. Payment, Sec. 75.305
The Department is proposing to repromulgate 45 CFR 75.305 as it
currently appears in the Code of Federal Regulations. Because the
language prior to the Final Rule applied the provisions of Treasury-
State Cash Management Improvement Act agreements and default procedures
codified at 31 CFR part 205 and TM 4A-2000, and such agreements may not
contain specific provisions addressed by Sec. 75.305, the Department
seeks to modify the language to ensure clarity. In doing so, to the
extent that the governing provisions are silent as to the payment
provisions described in the UAR, there should be no effect on states,
as they had been subject to these same provisions pursuant to 45 CFR
92.21. However, the Department proposes the clarification so that all
states are aware of the necessity to, for example, expend refunds and
rebates prior to drawing down additional grant funds.
D. Restrictions on Public Access to Records, Sec. 75.365
The Department proposes to repromulgate 45 CFR 75.365 as it
currently appears in the Code of Federal Regulations. That section
clarifies the limits on the restrictions that can be placed on
nonfederal entities that limit public access to records pertinent to
certain federal awards. That section also implements Executive Order
13,642 (May 9, 2013), and corresponding law. See, e.g., https://www.federalregister.gov/documents/2013/05/14/2013-11533/making-open-and-machine-readable-the-new-default-for-government-information, and
Departments of Labor, Health, and Human Services, and Education
Appropriations Act of 2014, Public Law 113-76, Div. H, Sec. 527
(requiring ``each Federal agency, or in the case of an agency with
multiple bureaus, each bureau (or operating division) funded under this
Act that has research and development expenditures in excess of
$100,000,000 per year [to] develop a Federal research public access
policy''). Although this language was not included in subsequent
appropriations acts, the Department considers it an appropriate
exercise of agency discretion and implementation of the Executive
Order. The proposed language would codify permissive authority for the
Department's awarding agencies to require public access to manuscripts,
publications, and data produced under an award, consistent with
applicable law. The Department recognizes that this provision could be
interpreted as having a financial impact on small entities. These
requirements, however, have been operational since the publication of
the Final Rule, and therefore grantees would not need to make any
changes to their current practice in response to this rulemaking. As a
result, this portion of this rulemaking, if finalized, would have no
impact other than informing the public of the Department's stance on
public access to manuscripts, publications, and data produced under
awards.
E. Indirect (Facilities & Administration) Costs, Sec. 75.414
The Department is proposing to repromulgate language from the Final
Rule amending 45 CFR 75.414(c) as it currently appears in the Code of
Federal Regulations. That provision restricted indirect cost rates for
certain grants. It is long-standing HHS policy to restrict training
grants to a maximum eight percent indirect cost rate. In addition to
proposing to implement this limit for training grants, the Department
proposes to impose this same limitation on foreign organizations and
foreign public entities, which typically do not negotiate indirect cost
rates, and to add clarifying language to Sec. 75.414(f), which would
permit an entity that had never received an indirect cost rate to
charge a de minimis rate of ten percent, in order to ensure that the
two provisions do not conflict. In this proposed rule, the American
University, Beirut, and the World Health Organization are exempted
specifically from the indirect-cost-rate limitation because they are
eligible for negotiated facilities and administration (F&A) cost
[[Page 63834]]
reimbursement. This proposed restriction on indirect costs, as
indicated by 45 CFR 75.101, would flow down to subawards and
subrecipients. The Department recognizes that this provision could be
interpreted as having a financial impact on small entities. These
limits, however, have been operational since the publication of the
Final Rule, and therefore grantees would not need to make any changes
to their current practice in response to this rulemaking. As a result,
this portion of this rulemaking, if finalized, would have no impact
other than informing the public of the Department's stance on indirect
cost rates for certain grants.
F. Payments for Failure To Offer Health Coverage to Employees, Sec.
75.477
The Department proposes to repromulgate language from the Final
Rule specifying a selected item of cost for codification in the cost
principles as 45 CFR 75.477, regarding shared responsibility payments
by employers. The Department does not, however, propose to repromulgate
a related provision from the Final Rule concerning shared
responsibility payments for individuals.
In 2013, the Department announced in a program policy document that
any payments or assessments imposed on an individual or individuals
pursuant to 26 U.S.C. 5000A(b) as a result of any failure to maintain
minimum essential coverage as required by 26 U.S.C. 5000A(a) were not
allowable costs under a particular grant program. See HAB Policy Notice
13-04, at 2-3. Consistent with that policy, in 2016 in the Final Rule,
45 CFR 75.477, the Department excluded as allowable expense under a
grant both payments imposed on an individual or individuals pursuant to
26 U.S.C. 5000A(b) and payments imposed on employers that fail to offer
health coverage to their employees pursuant to 26 U.S.C. 4980H.
Congress subsequently reduced to $0 the penalties or assessments
imposed on individuals as a result of their failure to maintain minimum
essential coverage, effective after December 31, 2018. Public Law 115-
97, 131 Stat. 2092 (Dec. 22, 2017). Accordingly, the Department does
not propose to repromulgate the provision from the Final Rule, at Sec.
75.477(a), excluding such payments or assessments as allowable costs
under an HHS grant. Given that the penalty imposed on individuals for
failure to maintain minimum essential coverage was reduced to $0,
effective after December 31, 2018, and it is possible that some
individuals are still making such payments for tax year 2018, the
Department seeks comment on whether to repromulgate the provision, with
a sunset date to ensure that the cost of the individual penalty is
excluded from allowable costs for tax years when such penalties could
be imposed.
The Department does propose to repromulgate language from the Final
Rule excluding, from allowable costs under an HHS grant, employer
payments for failure to offer health coverage to employees as required
by 26 U.S.C. 4980H. The Internal Revenue Service began to enforce the
Internal Revenue Code provision in 2017, after the issuance of the
Final Rule. The Department recognizes that the HHS regulatory
provision--excluding such employer shared responsibility payments from
allowable costs under HHS grants--could be interpreted as having a
financial impact on small entities. These requirements, however, have
been operational since the publication of the Final Rule, and therefore
grantees would not need to make any changes to their current practice
in response to this rulemaking. As a result, this portion of this
rulemaking, if finalized, would have no impact other than informing the
public of the Department's stance on financing shared responsibility
payments using grant funding.
III. Request for Comment
The Department seeks comment on this proposed rule, including its
likely impacts as compared to the previous Final Rule. The Department
is particularly interested in comments relating to the comparative
effects and impact of its own enforcement discretion, specifically were
the previous Final rule to be fully enforced, as well as whether HHS
were to fully exercise its enforcement discretion regarding the Final
Rule.
IV. Regulatory Impact Analysis
The Department has examined the impacts of the proposed rule as
required under Executive Order 12866 on Regulatory Planning and Review
(Sept. 30, 1993), Executive Order 13563 on Improving Regulation and
Regulatory Review (Jan. 18, 2011), Executive Order 13771 on Reducing
Regulation and Controlling Regulatory Costs (Jan. 30, 2017), the
Regulatory Flexibility Act (September 19, 1980, Pub. L. 96-354, 5
U.S.C. 601-612), section 202 of the Unfunded Mandates Reform Act of
1995 (Mar. 22, 1995, Pub. L. 104-04), Executive Order 13132 on
Federalism (Aug. 4, 1999), the Congressional Review Act (5 U.S.C.
804(2)), the Assessment of Federal Regulation and Policies on Families,
and the Paperwork Reduction Act of 1995.
Executive Orders 12866 and 13563 Determination
Pursuant to Executive Order 12866, the Department has designated
this final rule to be economically non-significant. This rulemaking has
been designated as a ``significant regulatory action'' under section
3(f) of Executive Order 12866. Accordingly, the rule has been reviewed
by the Office of Management and Budget. Similarly, under Executive
Order 13563, this proposed rule harmonizes and streamlines rules, and
promotes flexibility by removing unnecessary burdens.
Executive Order 13771
The White House issued Executive Order 13771 on Reducing Regulation
and Controlling Regulatory Costs on January 30, 2017. Section 2(a) of
Executive Order 13771 requires an agency, unless prohibited by law, to
identify at least two existing regulations to be repealed when the
agency publicly proposes for notice and comment or otherwise
promulgates a new regulation. In furtherance of this requirement,
section 2(c) of Executive Order 13771 requires that the new incremental
costs associated with new regulations shall, to the extent permitted by
law, be offset by the elimination of existing costs associated with at
least two prior regulations. This rulemaking, while significant under
Executive Order 12866, will impose de minimis costs and therefore is
not anticipated to be a regulatory or deregulatory action under
Executive Order 13771. Public comments will inform the ultimate
designation of this proposed rule.
Regulatory Flexibility Act
The Department has examined the economic implications of this
proposed rule as required by the Regulatory Flexibility Act (RFA) (5
U.S.C. 601-612). The RFA requires an agency to describe the impact of a
proposed rulemaking on small entities by providing an initial
regulatory flexibility analysis unless the agency expects that the
proposed rule will not have a significant impact on a substantial
number of small entities, provides a factual basis for this
determination, and proposes to certify the statement. 5 U.S.C. 603(a),
605(b). If an agency must provide an initial regulatory flexibility
analysis, this analysis must address the consideration of regulatory
options that would lessen the economic effect of the rule on small
entities. For purposes of the RFA, small entities include small
businesses, nonprofit organizations, and small governmental
jurisdictions. HHS considers a rule to have a significant
[[Page 63835]]
impact on a substantial number of small entities if it has at least a
three percent impact on revenue on at least five percent of small
entities. As discussed, the proposed rule would
Require grantees to comply with applicable federal
statutory nondiscrimination provisions.
Provide that HHS complies with applicable Supreme Court
decisions in administering its grant programs.
Not re-impose the exclusion from allowable costs of the
now-repealed tax imposed on individuals for failure to maintain minimum
essential coverage.
Otherwise re-promulgate the provisions of the Final Rule.
Affected small entities include all small entities which may apply
for HHS grants; these small entities operate in a wide range of
sections involved in the delivery of health and human services.
Grantees are required to comply with applicable federal statutory
nondiscrimination provisions by operation of such laws and pursuant to
45 CFR 75.300(a); HHS is required to comply with applicable Supreme
Court decisions. Thus, there would be no economic impact associated
with proposed sections 75.300(c) and (d). Since the individual tax for
failure to comply with the individual mandate has been reduced to $0,
there would be no economic impact associated with not proposing to re-
impose an allowable costs exclusion for such payments. Moreover, the
provisions of the proposed rule have been operational since the
publication of the Final Rule, and therefore grantees, including small
entities, would not need to make any changes to their current practice
in response to this rulemaking. Thus, the Department anticipates that
this rulemaking, if finalized, would have no impact beyond providing
information to the public. The Department anticipates that this
information will allow affected entities to better deploy resources in
line with established requirements for HHS grantees. As a result, HHS
has determined, and the Secretary certifies, that this proposed rule
will not have a significant impact on the operations of a substantial
number of small entities.
The Department seeks comment on this analysis of the impact of the
proposed rule on small entities, and the assumptions that underlie this
analysis.
Unfunded Mandates Reform Act
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 in 1995 dollars, updated annually for inflation. Currently,
that threshold is approximately $154 million. 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. The Department
has determined that this proposed rule will not result in expenditures
by State, local, and tribal governments, or by the private sector, of
$154 million or more in any one year. Accordingly, the Department has
not prepared a budgetary impact statement or specifically addressed the
regulatory alternatives considered.
Executive Order 13132--Federalism
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a rule that imposes substantial
direct requirement costs on State and local governments or has
federalism implications. The Department has determined that this
proposed rule does not impose such costs or have any Federalism
implications.
Congressional Review Act
The Congressional Review Act defines a ``major rule'' as ``any rule
that the Administrator of the Office of Information and Regulatory
Affairs (OIRA) of the Office of Management and Budget finds has
resulted in or is likely to result in--(A) an annual effect on the
economy of $100,000,000 or more; (B) a major increase in costs or
prices for consumers, individual industries, federal, State, or local
government agencies, or geographic regions; or (C) significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export
markets.'' 5 U.S.C. 804(2). The Department has determined that this
proposed rule is not likely to result in an annual effect of
$100,000,000 or more and is not otherwise a major rule for purposes of
the Congressional Review Act.
Assessment of Federal Regulation and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 requires Federal departments and agencies to determine
whether a proposed policy or regulation could affect family well-being.
If the determination is affirmative, then the Department or agency must
prepare an impact assessment to address criteria specified in the law.
The Department has determined that these proposed regulations will not
have an impact on family well-being, as defined in the Act.
Paperwork Reduction Act of 1995
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
ch. 3506; 5 CFR part 1320 appendix A.1), the Department has reviewed
this proposed rule and has determined that there are no new collections
of information contained therein.
List of Subjects in 45 CFR Part 75
Accounting, Administrative practice and procedure, Cost principles,
Grant programs, Grant programs--health, Grants administration,
Hospitals, Nonprofit organizations reporting and recordkeeping
requirements, and State and local governments.
Proposed Rule
For the reasons set forth in the preamble, the Department of Health
and Human Services proposes to amend part 75 of title 45 of the Code of
Federal Regulations as follows:
PART 75--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND
AUDIT REQUIREMENTS FOR HHS AWARDS
0
1. The authority citation for 45 CFR part 75 continues to read as
follows:
Authority: 5 U.S.C. 301.
Sec. 75.101 [Amended]
0
2. Amend Sec. 75.101 by removing and reserving paragraph (f).
0
3. Amend Sec. 75.300 by revising paragraphs (c) and (d) to read as
follows:
Sec. 75.300 Statutory and national policy requirements.
* * * * *
(c) It is a public policy requirement of HHS that no person
otherwise eligible will be excluded from participation in, denied the
benefits of, or subjected to discrimination in the administration of
HHS programs and services, to the extent doing so is prohibited by
federal statute.
(d) HHS will follow all applicable Supreme Court decisions in
administering its award programs.
0
4. In Sec. 75.305, revise paragraph (a) to read as follows:
Sec. 75.305 Payment.
(a)(1) For States, payments are governed by Treasury-State CMIA
agreements and default procedures codified at 31 CFR part 205 and TFM
[[Page 63836]]
4A-2000 Overall Disbursing Rules for All Federal Agencies.
(2) To the extent that Treasury-State CMIA agreements and default
procedures do not address expenditure of program income, rebates,
refunds, contract settlements, audit recoveries and interest earned on
such funds, such funds must be expended before requesting additional
cash payments.
* * * * *
0
5. Revise Sec. 75.365 to read as follows:
Sec. 75.365 Restrictions on public access to records.
Consistent with Sec. [thinsp]75.322, HHS awarding agencies may
require recipients to permit public access to manuscripts,
publications, and data produced under an award. However, no HHS
awarding agency may place restrictions on the non-Federal entity that
limits public access to the records of the non-Federal entity pertinent
to a Federal award identified in Sec. Sec. [thinsp]75.361 through
75.364, except for protected personally identifiable information (PII)
or when the HHS awarding agency can demonstrate that such records will
be kept confidential and would have been exempted from disclosure
pursuant to the Freedom of Information Act (5 U.S.C. 552) (FOIA) or
controlled unclassified information pursuant to Executive Order 13556
if the records had belonged to the HHS awarding agency. The FOIA does
not apply to those records that remain under a non-Federal entity's
control except as required under Sec. [thinsp]75.322. Unless required
by Federal, State, local, or tribal statute, non-Federal entities are
not required to permit public access to their records identified in
Sec. Sec. [thinsp]75.361 through 75.364. The non-Federal entity's
records provided to a Federal agency generally will be subject to FOIA
and applicable exemptions.
0
6. In Sec. 75.414, revise paragraphs (c)(1)(i) through (iii) and the
first sentence of paragraph (f) to read as follows:
Sec. 75.414 Indirect (F&A) costs.
* * * * *
(c) * * *
(1) * * *
(i) Indirect costs on training grants are limited to a fixed rate
of eight percent of MTDC exclusive of tuition and related fees, direct
expenditures for equipment, and subawards in excess of $25,000;
(ii) Indirect costs on grants awarded to foreign organizations and
foreign public entities and performed fully outside of the territorial
limits of the U.S. may be paid to support the costs of compliance with
federal requirements at a fixed rate of eight percent of MTDC exclusive
of tuition and related fees, direct expenditures for equipment, and
subawards in excess of $25,000; and,
(iii) Negotiated indirect costs may be paid to the American
University, Beirut, and the World Health Organization.
* * * * *
(f) In addition to the procedures outlined in the appendices in
paragraph (e) of this section, any non-Federal entity that has never
received a negotiated indirect cost rate, except for those non-Federal
entities described in paragraphs (c)(1)(i) and (ii) and section
(D)(1)(b) of appendix VII to this part, may elect to charge a de
minimis rate of 10% of modified total direct costs (MTDC) which may be
used indefinitely. * * *
* * * * *
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7. Revise Sec. 75.477 to read as follows:
Sec. 75.477 Payments for failure to offer health coverage to
employees.
Any payments or assessments imposed on an employer pursuant to 26
U.S.C. 4980H as a result of the employer's failure to offer to its
full-time employees (and their dependents) the opportunity to enroll in
minimum essential coverage under an eligible employer-sponsored plan
are not allowable expenses under Federal awards from an HHS awarding
agency.
Dated: November 1, 2019.
Alex M. Azar II,
Secretary, Department of Health and Human Services.
[FR Doc. 2019-24385 Filed 11-18-19; 8:45 am]
BILLING CODE 4150-24-P