[Federal Register Volume 80, Number 171 (Thursday, September 3, 2015)]
[Rules and Regulations]
[Pages 53235-53240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21693]



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

[[Page 53235]]



DEPARTMENT OF ENERGY

2 CFR Part 910

RIN 1991-AC02


Administrative Requirements for Grants and Cooperative Agreements

AGENCY: Department of Energy.

ACTION: Final rule.

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

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

DATES: Effective: October 5, 2015.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents

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

I. Summary

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

III. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

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

[[Page 53236]]

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

B. Review Under Executive Order 12988

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

C. Review Under the Regulatory Flexibility Act

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

D. Review Under the Paperwork Reduction Act

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

E. Review Under the National Environmental Policy Act

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

F. Review Under Executive Order 13132

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

G. Review Under the Unfunded Mandates Reform Act of 1995

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

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

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

I. Review Under Executive Order 13211

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

[[Page 53237]]

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

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

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

K. Review Under Executive Order 13609

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

L. Approval by the Office of the Secretary of Energy

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

M. Congressional Notification

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

List of Subjects in 2 CFR Part 910

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

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

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

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

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

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


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


Sec.  910.360  Real property and equipment.

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

[[Page 53238]]

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

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


Sec.  910.364  Reporting on utilization of subject inventions.

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

[[Page 53239]]

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

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


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

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

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


Sec.  910.368  Change of control.

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

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


Sec.  910.370  Novation of financial assistance agreements.

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

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


Sec.  910.372  Special award conditions.

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

[[Page 53240]]

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

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