[Federal Register Volume 84, Number 169 (Friday, August 30, 2019)]
[Rules and Regulations]
[Pages 45627-45641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18650]
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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. 84, No. 169 / Friday, August 30, 2019 / Rules
and Regulations
[[Page 45627]]
DEPARTMENT OF THE INTERIOR
Office of the Secretary
2 CFR Part 1402
[DOI-2018-0013; 190D0102DM, DS62400000, DLSP00000.000000, DX62401]
RIN 1090-AB19
Financial Assistance Interior Regulation
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
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SUMMARY: This final rule establishes the Financial Assistance Interior
Regulation (FAIR). The FAIR supplements the Office of Management and
Budget (OMB) Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards (Uniform Guidance), which was
adopted by the Department of the Interior (DOI or Department) on
December 19, 2014. This final rule supports the Department's goal of
improving its financial assistance program, consolidate the
Department's financial assistance regulations and policies derived from
the OMB Uniform Guidance, and streamline the implementation of OMB's
Uniform Guidance and DOI financial assistance policy.
DATES: Effective October 29, 2019. The incorporation by reference of
certain publications listed in the rule is approved by the Director of
the Federal Register as of October 29, 2019.
FOR FURTHER INFORMATION CONTACT: Mr. Kerry Neal, Director, Office of
Grants Management, Department of the Interior, 1849 C Street NW, Mail
Stop 4262 MIB, Washington, DC 20240; telephone (202) 208-3100; or email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On December 26, 2013, the Office of Management and Budget (OMB)
published its Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards (referred to as the ``Uniform
Guidance,'' 78 FR 78590). The OMB Uniform Guidance, 2 CFR part 200,
provided a government-wide framework for Federal awards management and
streamlined administrative requirements, cost principles, and audit
requirements for Federal awards including grants and cooperative
agreements.
The Uniform Guidance required Federal agencies to promulgate
regulations implementing the policies and procedures applicable to
Federal awards by December 26, 2014. On December 19, 2014, the
Department published a final rule to adopt the OMB Uniform Guidance in
full as 2 CFR part 1402, Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards (79 FR 75867).
Three days later, on December 22, 2014, DOI issued memoranda to
supplement the following provisions of the OMB Uniform Guidance: (1)
Indirect Cost Rates for Federal Financial Assistance Awards and
Agreements; (2) Conflict of Interest and Mandatory Disclosures for
Financial Assistance; (3) Financial Assistance Application and Merit
review Processes; and (4) Financial Assistance Awards for For-Profit
Entities, Foreign Public Entities, and Foreign Organizations. On
February 8, 2016, the Department published a proposed rule to establish
the FAIR and to consolidate all of the policy memoranda into a
regulation to be codified at 2 CFR part 1402 (81 FR 6462). Two comments
were received addressing, first, details of the conflicts of interest
provision and, second, the application of 2 CFR part 200, subparts E
(Cost Principles) and F (Audit Requirements), to tribal awards. These
two comments were addressed by expanding the conflict of interest
provision to be consistent with the Standards of Ethical Conduct for
Employees of the Executive Branch, 5 CFR part 2635, and by clarifying
the applicability of 2 CFR part 200, subparts E and F, to tribal awards
in this final rulemaking, respectively.
Because the RIN for the 2016 proposed rule expired and Departmental
leadership wanted to strengthen the conflict of interest provisions and
incorporate open science and land acquisition provisions, the
Department proposed the current version of its FAIR regulations as a
revision to 2 CFR part 1402 for public comment on March 21, 2019. The
Department received 55 public comments (84 FR 10439). The final rule
reflects the totality of comments considered from the Notice of
Proposed Rulemaking (NPRM) stage of the process.
II. Overview of the Final Rule
The FAIR regulations final rule: First, revises 2 CFR part 1402 to
more accurately reflect exceptions to this part; and second, adds
supplemental regulations for DOI's financial assistance program that is
codified at 2 CFR part 1402. The rule represents an administrative
simplification and does not make any substantive changes to 2 CFR part
200 policies and procedures. Thus, this rulemaking does not revisit
substantive issues resolved during the development and finalization of
the OMB Uniform Guidance which was adopted by the Department on
December 19, 2014. This rule helps ensure that financial assistance
provided by the DOI is administered in full compliance with applicable
law, regulation, policy and best practices to ensure the American
people get the most value from the money the DOI spends on financial
assistance. The sections in this final rule represent areas of the
financial assistance program where questions have been raised by
stakeholders, including auditors. As a result, DOI clarified specific
areas.
(a) Major Changes
After reviewing and considering the comments received on the NPRM,
we made several clarifications and changes in this final rule. The
final rule:
Clarifies the definition for real property.
Simplifies and clarifies language for the conflict of
interest requirements.
Clarifies mandatory disclosure limitations on unresolved
items.
Simplifies language for the merit review requirements;
removes the term ``maximum'' associated with discretionary awards.
Clarifies that Sec. 1402.207(b) conditions applies to
both nonprofit and for-profit recipients.
Deletes duplicative language for the lobbying disclosure
and certification requirements.
[[Page 45628]]
Removes the definition of data and revises Sec. 1402.315
to clarify the distinction between data and other related types of
information.
(b) Key Issues
The DOI reviewed many comments from a variety of entities, but
received the majority of the detailed comments focused on real
property, appraisals, and scientific data. These key issues are
addressed more fully in section III of this preamble, but include:
Real Property Program Impacts--Includes such things as
costs, time to complete appraisals, scarcity of Yellow Book appraisers,
and grandfathering of appraisals already in progress.
Uniform Appraisal Standards for Federal Land Acquisitions
(UASFLA or Yellow Book) Technical Issues/Requirements--Includes such
things as the applicability of UASFLA, specific technical requirements,
and assertions of inconsistent requirements for UASFLA compliance
within the DOI and externally across other government agencies.
Qualifications and Training of Appraisers--Includes such
things as uncertainty regarding qualifications of appraisers for
conducting UASFLA appraisals, qualifications for review appraisers,
appraisal review conducted by non-appraisers, and terminology used when
referring to the appraisal credentials issued by States.
Promoting Open Science--Includes the expanded definition
of data and the requirement to make data relied upon in research
available to the public and the format to provide the data.
Incorporation by Reference: The purpose of the Uniform Appraisal
Standards for Federal Land Acquisitions (Yellow Book) is to promote
fairness, uniformity, and efficiency in the appraisal of real property
in Federal acquisitions. The same goals of uniformity, efficiency, and
fair treatment of those affected by public projects underlie the
Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970 which applies to Federal acquisitions as well as many State
and local government acquisitions involving Federal funds. The Yellow
Book is available in hard copy or interactive electronic format from
The Appraisal Foundation at http://www.appraisalfoundation.org/imis/TAF/Yellow_Book.aspx or from the U.S. Department of Justice at https://www.justice.gov/file/408306/download.
(c) Section by Section Analysis
This portion of the preamble summarizes the final rule and
highlights certain aspects of the rule that may benefit from additional
explanation.
Subpart A of the final rule sets forth definitions for terms used
in this part. Terms defined in this rulemaking are ``employment,''
``financial assistance officer,'' ``foreign entity,'' ``non-Federal
entity,'' and ``real property.'' As explained in the proposed rule,
non-Federal entity is expanded to include for-profit organizations.
Several of these terms help clarify regulatory changes designed to
avoid conflicts of interest which might place a non-Federal entity, its
employees, and/or its subrecipients in a position of conflict, real or
apparent. The final rule adopts the proposed term ``real property'' to
address DOI's specific focus on interests in land. The ``data''
definition was removed based on comments received stating that the
definition was beyond the scope of typical definitions in the industry.
Subpart B sets forth general provisions including: The purpose of
the part, application, exceptions, policies and procedures that apply
to non-Federal entities, conflict of interest policies, and mandatory
disclosure requirements. DOI adopted as proposed Sec. 1402.100, which
includes establishment of financial assistance regulations designed to
ensure that financial assistance is administered in full compliance
with applicable law, regulation, policy and best practices; and to help
ensure that the American people get the most value from the money that
DOI spends on financial assistance. The adopted Sec. 1402.101 provides
that the regulation is applicable to all DOI grant-making activities
and to any non-Federal entity that applies for, receives, operates, or
expends funds from a DOI financial assistance award after the effective
date of this final rule, unless otherwise authorized by Federal
statute. Section 1402.103 adopted as proposed explains that non-Federal
entities must also follow bureau or office policies and procedures as
communicated in notices of funding opportunities and award terms and
conditions. This section also reflects the order of precedence, where
policies or procedures may conflict with existing regulations at 2 CFR
part 200; or this part. In such cases, then the regulations at 2 CFR
part 200 or this part, when final, will supersede, unless otherwise
authorized by Federal statute.
Section 1402.112 sets forth requirements related to conflicts of
interest that apply to recipients of financial assistance awards. The
final rule, adopted as proposed, applies to all non-Federal entities
and requires the full text of language proposed in paragraphs (a)
through (e) in all notice of funding opportunities and financial
assistance awards. The proposed rule was amended in order to make clear
to non-Federal entities that they must appropriately address prohibited
conflicts of interest preventing them from providing impartial,
technically sound, and objective performance under or with respect to a
Federal financial assistance agreement. Paragraph (b) Requirements was
removed to avoid any confusion that the rule was not in compliance with
statutory and regulatory law. Paragraphs (a) through (e) set forth
directions on applicability, appropriate action that must be taken to
avoid a conflict of interest, required notification, and enforcement.
Section 1402.113 provides as proposed that, in addition to the
disclosures required under 2 CFR 200.112 and 200.113, non-Federal
entities and applicants must disclose in writing any potential or
actual conflict of interest; and must also disclose any outstanding
unresolved matters with the Government Accountability Office or the
Office of Inspector General of any Federal agency when submitting a
proposal and throughout the life of the award. ``Unresolved'' matters
are now more clearly defined.
Under subpart C, the rule addresses: Merit review requirements for
competitive awards, requirements for domestic for-profit entities,
specific financial assistance award terms and conditions that apply to
domestic for-profit entities, and lobbying disclosure and certification
requirements.
Section 1402.204 sets forth merit review requirements for
competitive grants and cooperative agreements unless otherwise
prohibited by Federal statute. After reviewing the comments, DOI
removed the requirements for bureaus and offices to create review
systems that consider statutory or regulatory provisions, business
evaluation, risk assessment, and other applicable government-wide pre-
award considerations for discretionary programs that are
noncompetitive. While DOI believes review systems are important, it did
not believe the specific requirements needed to be in the regulation.
This section also adopts as proposed, required pre-award
considerations for both discretionary competitive and noncompetitive
awards to take into account the alignment of the award's purpose,
goals, and measurement with the current DOI Government Performance and
Results Act Strategic Plan. Section 1402.204 also adopts as amended an
expectation of competition in awarding discretionary funds, unless
[[Page 45629]]
otherwise directed by Congress. After the review of comments, DOI did
remove the word ``maximum'' that described the competition requirement.
The final rule also adopts that when grants and cooperative agreements
are awarded competitively, the process will be fair and impartial, that
all applicants will be evaluated only on the criteria stated in the
announcement, and that no applicant will receive an unfair competitive
advantage. This section of the rule also sets forth direction on: The
composition of an evaluation and selection plan, completeness of
applications and proposals, timeliness, threshold screening, merit
review evaluation screening, and risk assessments.
Sections 1402.206 and 1402.207 are designed to be read together as
proposed. Section 1402.206 provides that Sec. 1402.207(a) contains
standard award terms and conditions that always apply to for-profit
entities and that terms in Sec. 1402.207(b) contain terms for
recipients including non-profits and for-profits to apply to all
subawards and contracts over the simplified acquisition threshold. The
section further lists additional administrative guidelines in existing
regulations and in proposed Sec. 1402.414 that may be applied to
domestic for-profit entities. Provision is made for particular program
offices and bureaus to develop specific administrative guidelines for
domestic for-profits. Finally, Sec. 1402.206 adopts that bureau and
office award terms and conditions must be managed in accordance with
the requirements in the existing 2 CFR 200.210.
Section 1402.207 lists specific conditions that always apply to
domestic for-profit entities and subawards. In addition to all other
applicable terms and conditions, specific financial assistance award
terms and conditions adopted in Sec. 1402.207(d) apply to foreign
entities. DOI also clarified that the provisions in Sec. 1402.207(b)
applies to both non-profit and domestic for-profit entities.
Section 1402.208 was removed after DOI's review of the comments, as
DOI agreed it was redundant with Sec. 1402.112(d) restrictions on
lobbying.
Subpart D includes regulations that set forth post Federal award
requirements.
Section 1402.315 amends requirements for availability of data that
implement Secretary's Order 3369, ``Promoting Open Science,'' dated
October 18, 2018. The requirements in this section rely on existing
regulatory provisions found at 2 CFR 200.315(d) to achieve the goals
set forth in section 4b(3) of the Secretary's Order to provide the
American people with enough information to thoughtfully and
substantively evaluate the data, methodology, and analysis used by the
Department. To accomplish these goals, the section provides that DOI
bureaus and offices shall specifically require under the terms of any
award, the ability to publicly release associated data, methodology,
factual inputs, models, analyses, technical information, reports,
conclusions, or other scientific assessments in any medium or form,
including textual, numerical, graphic, cartographic, narrative, or
audiovisual, subject to applicable laws. This provision applies to all
grants, cooperative agreements, or other similar agreements between any
Bureau, Office, or other organization of the Department and any third
party; and would not be limited to rulemaking. This section recognizes
the Department's responsibility to ensure that the benefits derived
from Federal financial assistance are generally available to the
public, subject to applicable law. DOI clarified in the final rule that
methodologies, factual inputs, models, analyses, technical information,
reports, conclusions, or other scientific assessments in any medium or
form, including textual, numerical, graphic, cartographic, narrative,
or audiovisual resulting from a financial assistance agreement should
be available to DOI for sufficient independent verification. It further
clarified the Federal Government rights to such items. It also adopts,
as proposed, the requirement that Bureaus and offices must include
these requirements in all notice of funding opportunities.
Section 1402.329 adopts the requirements for land acquired under an
award. The regulation provides that prior to land purchases, bureaus
and offices must ensure compliance with the prior written approval
requirements for land acquisition in the existing 2 CFR 200.439.
Whenever a recipient is seeking DOI approval to use award funds to
purchase an interest in real property, OMB-approved government-wide
data elements must be submitted to the responsible bureau or office.
For this provision, the Financial Assistance Officer is responsible for
ensuring compliance. Furthermore, all aspects of the purchase must be
in compliance with applicable laws and regulations relating to
purchases of land or interests in land. This section also requires that
unless a waiver valuation applies in accordance with 49 CFR 24.102(c),
land or interests in land that will be acquired under the award must
be: (a) Appraised in accordance with the Uniform Appraisal Standards
for Federal Land Acquisitions (UASFLA or the ``Yellow Book''), which is
incorporated by reference; (b) appraised by a real property appraiser
licensed or certified by the State or States in which the property is
located; and (c) that the appraisal report shall be reviewed by a
qualified review appraiser that meets qualifications established by the
DOI Appraisal and Valuation Services Office (AVSO). Requirements are
also set forth in this section for foreign land acquisition. In Sec.
1402.329, DOI sets forth direction that recipients must submit reports
on the status of the real property for all financial assistance actions
where real property, as defined in this final rule, is acquired under
the Federal award as required by 2 CFR 200.329. If the interest in real
property will be held for less than 15 years, reports must be submitted
annually; otherwise the recipient must submit the first report within
one year of the period of performance end date of the award and then,
at a minimum every five years thereafter. The rule also sets forth who
should receive the reports, the required format, the content, and
timing for such reports.
Section 1402.414 establishes DOI policy, procedures, and general
decision-making criteria for deviations from negotiated indirect cost
rates applicable to all Federal financial assistance programs awarded
and administered within DOI. The regulatory text sets forth procedures
and criteria for using an indirect cost rate other than the non-Federal
entity's negotiated rate. The goal of this section is to provide
consistent direction within the Department on negotiated indirect cost
rate deviations to ensure compliance with the Uniform Guidance.
Existing provisions of 2 CFR 200.414(c) require Federal agencies to
accept federally negotiated indirect cost rates. Federal agencies may
use a rate different from the negotiated rate for a class of awards or
a single Federal award only when required by Federal statute or
regulation, or when approved by a Federal awarding agency head or
delegatee based upon documented justification described within 2 CFR
200.414(c)(3).
For all deviations to the Federal negotiated indirect cost rate,
including statutory, regulatory, programmatic, and voluntary, the rule
provides that the basis of direct costs against which the indirect cost
rate is applied must be: The same base identified in the recipient's
negotiated indirect cost rate agreement, if the recipient has a
federally negotiated indirect cost rate agreement; or, the modified
total direct
[[Page 45630]]
cost (MTDC) base, in cases where the recipient does not have a
federally negotiated indirect cost rate agreement or, with prior
approval of the awarding bureau or office, when the recipient's
federally negotiated indirect cost rate agreement base is only a subset
of the MTDC (such as salaries and wages) and the use of the MTDC still
results in an overall reduction in the total indirect cost recovered.
Section 1402.414(d), adopted as proposed, provides that in cases
where the recipient does not have a federally negotiated indirect cost
rate agreement, the Department will not use a modified rate based upon
total direct cost or other base not identified in the federally
negotiated indirect cost rate agreement or defined within 2 CFR 200.68.
Section 1402.414(d) goes on to provide direction on indirect cost
rate deviation required by statute or regulation, indirect cost rate
reductions used as cost-share, programmatic indirect cost rate
deviation approval process, voluntary indirect cost rate reduction, and
unrecovered indirect costs.
III. Public Comments on the Proposed Rule and Responses to Comments
(a) Overview
The Department sought public comment on the proposed rule,
receiving 55 comments from over 200 individuals, non-profits, State and
local governments, and Federal entities. All public comments received
on the NPRM are available in a combined docket at docket number: DOI-
2018-0013. The Department decided to proceed to the final-rule stage
after consideration of all the comments. The Department's responses to
comments are detailed below.
(b) Responses to Public Comments on the Proposed Rule
(1) Comments Related to Executive Orders
(i) Executive Order 12866--Regulatory Planning and Review
Comment: Four commenters expressed the opinion that the rule has
significant changes for States and other grantee organizations
resulting in significant new process requirements and burdens, and
increased costs. Two commenters specifically commented that
incorporating open science and land acquisition provisions into this
regulation may violate Executive Order 12866.''
Response: The Department received a review from OMB, and the rule
was determined non-significant under E.O. 12866. The impact of this
rule has been analyzed, and it does not have an annual effect on the
economy of $100 million or more, adversely affect the economy in a
material way, or create a serious inconsistency or otherwise interfere
with another agency's actions. Accordingly, the impact of this rule
does not rise to the level of significance under the E.O. The DOI has
however made changes to the open science provisions of the proposed
rule. DOI has made no changes to the land acquisition provisions of the
proposed rule in response to these comments. The Uniform Act and its
regulations at 49 CFR part 24 apply to Federal acquisitions as well as
many State and local government acquisitions involving Federal funds
(UASFLA 0.1). As such, the UASFLA standards are no different than the
USDAP standards, they are merely tailored to meet the specific needs of
the Government. Accordingly, the land provisions are not a significant
change.
(ii) Executive Order 13132--Federalism
Comment: Three commenters raised concern over the rule being
contrary to established principles of federalism. Specifically, they
commented that the provisions related to the Yellow-book requirement
and data availability impeded full compliance with State privacy laws
related to land ownership and requiring the disclosure of what the
State determines is protected and sensitive information.
Response: The Department does not agree that the rule is contrary
to E.O. 13132 or the principles of federalism. Non-Federal entities
participate in Federal assistance programs voluntarily; and when
seeking Federal funds, they are required to meet Federal requirements
attached to the receipt and use of such funds. Section 1.15 of the
Yellow Book specifically addresses confidentiality and the appraiser's
responsibility to follow the USPAP Ethics Rule as it relates to
confidentiality and the appraiser/client relationship. State privacy
requirements remain intact. An appraisal completed to either standard
has the same confidentiality requirements. Furthermore, the requirement
in this rule to use the Yellow Book standard for all appraisals is
already the standard practice for Federal assistance programs, and is a
requirement for all direct Federal land purchases. The DOI made no
changes to the proposed rule in response to this comment.
(iii) Executive Order 13563--Improving Regulation and Regulatory Review
Comment: Three commenters raised concern over the rule not
promoting predictability, reducing uncertainty, or providing the least
burdensome tools for achieving regulatory objectives with regard to:
(1) Appraisal standards, (2) review appraiser standards, and (3) real
property reporting requirements.
Response: The rule clarifies the standard for real property
appraisals, appraiser standards, and reporting requirements under 2 CFR
1402.329. Specifically, there are two existing regulations (49 CFR
24.101(d) and 24.103(a)) that relate to appraisals for real property,
including real property under federally assisted programs. The DOI made
no changes to the proposed rule in response to these comments.
(2) Comments Related to Data
(i) Definition of Data
Comment: Two commenters raised concern over the definition of data
in the rule. Specifically, the commenters felt that the definition in
the rule is too broad, outside of the industry-standard definition of
the term, and it includes data that takes years to develop and has a
significant value to the non-Federal award recipient. The rule reserves
the right for the DOI to determine whether to make such data that is
produced with Federal funding publically available, which may cause
economic injury and competitive harm to non-Federal recipients.
Response: The Department made changes in response to these
comments, to eliminate the definition of data from this regulation, and
then to make minor conforming revisions to the text of Sec. 1402.315
to clarify the Department's requirements related to methodology,
factual inputs, models, analyses, technical information, reports,
conclusions, and other scientific assessments, which are not included
in the industry-standard definition of data. The change resolves the
issue that the definition of ``data'' in the proposed rule was beyond
the scope of the industry-standard definition of the term. The DOI did
not make substantive changes, but rather clarifying changes regarding
the Department's rights in relation to methodology, factual inputs,
models, analyses, technical information, reports, conclusions, and
other scientific assessments. The Department has a responsibility to
ensure that the benefits derived from Federal financial assistance
awards are available to the public. In order to ensure transparency and
the greatest possible use of the fruits of Federal appropriations, the
rule
[[Page 45631]]
reserves the right for the DOI to decide whether these types of outputs
resulting from a Federal award shall be publicly released. The
Department will make determinations regarding public release of data on
a case-by-case basis, and may consider input from interested parties.
The Department will not take any action in violation of statute,
including, for example, public release of information that is protected
under an exception to the Freedom of Information Act. However, the rule
ensures that the DOI reserves the right to make that determination for
all data, methodology, factual inputs, models, analyses, technical
information, reports, conclusions, valuation products, and other
scientific assessments produced under a federally-funded award.
(ii) Protected Use of Data
Comment: Thirty-five commenters requested clarification on the
specific requirements for protection and use of data under Sec.
1402.315, Availability of Data. These commenters expressed concern that
data collection might be burdensome as the FAIR does not describe what
format the data will need to be available in, whether grantees will
have to provide the raw data, and whether recipients will have to
translate data for all requesting parties. Also, commenters raised
questions about whether the grantees are legally allowed to share data
with non-intended users; for how long after the award has closed that
the recipient needs to make the data available for use; and whether the
requirement applies to already-published data or raw un-scrubbed data.
Lastly, one commenter wanted to ensure that this rule ``will not
compromise threatened, endangered, or other species of concern by
making certain information about geographic locations public''.
Response: The DOI believes that these comments raise issues that
are too specific and detailed to address in a rule. Issues related to
formatting, procedures, and specific issues like endangered species
protections are best addressed in each Notice of Funding Opportunity
for each Federal financial assistance program. As such, individual
financial assistance agreements will specify the format required for
the data, and the government will make every effort to be as
descriptive as practical in the initial Notice of Financial Assistance
Opportunities. The DOI made changes to the definition of data in the
final rule. DOI also indicated that it will make determinations
regarding public release of data on a case-by-case basis, and may
consider input from interested parties. The Department will not take
any action in violation of a statute.
(3) Comments Related to Real Property
(i) Cost of Uniform Appraisal Standards for Federal Land Acquisition
(UASFLA)
Comment: Multiple commenters expressed concern with the rule's
requirement that appraisals for land purchased under Federal assistance
awards must be conducted using the UASFLA (Yellow Book) standard due to
concern that appraisals conducted under this standard are more costly.
One commenter indicated that they allocate an average of $7,500 for the
appraisal, and various other commenters stated that they expected costs
of appraisals to increase thirty percent to fifty percent based on
conversations with appraisers in their area.
Response: Title 49 CFR 24.103(a) allows agencies to require Yellow
Book compliance, which is the appropriate appraisal standard for
acquisition of property interests by the Federal Government. The DOI
contracts hundreds of land appraisals each year in many different
States that are completed under both The Uniform Standards of
Professional Appraisal Practice (USPAP) and UASFLA standards. In the
DOI's experience, there is no significant difference in the cost of a
USPAP appraisal versus a UASFLA appraisal. Cost variability is most
often a result of the specifics of the assignment rather than the
applicable appraisal standard. The $7,500 appraisal figure in the
comments is consistent with the pricing for DOI appraisals. Fees
typically go up as the complexity increases and the period of
performance for the appraisal shortens. Additionally, there is no
discernable difference in the time taken for the appraisal, whether it
is completed under USPAP or UASFLA standards. The average time of
completion from the notice to proceed with the appraisal to the
delivery of the appraisal to the review appraiser is around sixty-five
days. The average time for appraisal review, including obtaining
revisions from the appraiser if necessary, is around forty days. These
averages are regardless of the appraisal standard applicable to the
assignment is USPAP or UASFLA. The appraisal review days include the
days that the appraiser is making necessary revisions to the appraisal
report. This length varies depending on the quality of the appraisal
report and the appraiser's schedule for revisions. In addition, the
rule currently allows for waivers in accordance with 49 CFR 24.102(c)
in instances where the total value of the land is so low that the cost
of the appraisal is not justified. The DOI made no changes to the
proposed rule in response to this comment.
(ii) Scarcity of UASFLA Appraisers
Comment: Multiple commenters expressed concern about the perceived
scarcity of UASFLA qualified appraisers.
Response: Appraisers are licensed or certified by the States to
perform appraisals, and the States establish limits to the levels of
licensure in accordance with Title XI of the Financial Institution
Reform and Recovery and Enforcement Act (FIRREA) of 1989, P.L. 101-73.
Most State licensed or certified appraisers are able to complete UASFLA
appraisals. There are no separate or additional licensure requirements
for completing UASFLA appraisals; the issue is not lack of
qualifications as stated in the comments, and scarcity can be addressed
through outreach to the appraisal community to bring awareness of the
opportunity for assignments. The DOI made no changes to the proposed
rule in response to this comment.
(iii) Grandfathering
Comment: A commenter raised a concern about the ability to
grandfather appraisals that are already in progress or that have been
completed but grants not awarded.
Response: Appraisals that have already been initiated as of the
date the final rule is published will be accepted as long as they meet
the standards required by the grant program at the time the appraisal
was initiated. However, all appraisals initiated after the date of the
final rule will need to conform to UASFLA. The DOI made no changes to
the proposed rule in response to this comment.
(iv) Perceived Burden of UASFLA Requirements
Comment: Several commenters raised general concerns about the
requirement that all appraisals for all land purchased under Federal
assistance awards conform to the UASFLA appraisal standard.
Response: All UASFLA appraisals must also conform to USPAP. USPAP
is a broad general standard that applies to all types of appraisals
conducted by State licensed or certified appraisers. This standard
includes real property appraisal, mass appraisal, personal property
appraisal, and business appraisal. The UASFLA/Yellow Book is a
supplemental standard to USPAP, meaning that it builds on the
foundation established by USPAP and is more
[[Page 45632]]
specific to direct acquisitions and federally assisted acquisitions
under the Uniform Act. Much of the UASFLA was written to conform to the
Uniform Act appraisal requirements found in 49 CFR 24.103. The Uniform
Act and its regulations at 49 CFR part 24 apply to Federal acquisitions
as well as many State and local government acquisitions involving
Federal funds (UASFLA 0.1). As such, the UASFLA standards are no
different than the USDAP standards, they are merely tailored to meet
the specific needs of the Government.
Comment: Other comments that were received requested that the DOI's
Federal assistance programs, such as the Wildlife and Sport Fish
Restoration Program (WSFR), have consistent appraisal requirements.
Response: The Department agrees, and is specifying UASFLA as the
applicable standard bringing all federally-assisted land acquisition
programs under one consistent appraisal standard. For example, for the
WSFR program, Yellow Book appraisals are required by some regions, but
other regions, for that same program, apply USPAP only. Requiring
UASFLA/Yellow Book compliance Department-wide will ensure these
programs are consistent with other programs within the Department,
including the National Park Service LWCF State Assistance Program, the
American Battlefield Protection Program, and the FWS Cooperative
Endangered Species Conservation Fund Grant Program.
Comment: Some comments mentioned the USDA Forest Legacy grant
program which also requires UASFLA appraisals.
Response: The final rule seeks to create consistent requirements
across the Department's grant programs by requiring appraisals be
conducted in compliance with the UASFLA, which is the predominant
standard for land or real property interest acquisition appraisals
within the Department. Some external agencies may have different
requirements for appraisal standards due to different missions and
objectives; however, the UASFLA is generally applicable to land
management agencies as well as other agencies that acquire or fund
acquisition of land or other real property interests. Within the
Department, the UASFLA is already the most common standard for land or
real property interest acquisition and helps ensure compliance with
UASFLA 0.1, parallel goals of ``uniformity, efficiency, and fair
treatment of those affected by public projects . . .''
Comment: One other area of comment was related to the inability of
appraisers conducting UASFLA appraisals to consider ``conservation
values'' or use comparable sales involving government agencies or
nonprofit organizations.
Response: For any appraisal that seeks to determine fair market
value, the highest and best use of the property being appraised is what
drives the value. Non-economic uses such as open space or watershed
protection are not typically recognized as the highest and best use
because there is no economic benefit returned to the property. The
major appraisal organizations, as well as the Interagency Land
Acquisition Conference (authors of the UASFLA), have concluded that
where fair market value is the value sought, the value must be based on
an economic highest and best use and that a non-economic highest and
best use is not a proper basis for the opinion of market value.
Comparable sales involving government entities or nonprofit
organizations also must be considered with extra care and analysis
because they can reflect non-market motivation or other influences such
as tax benefits to the seller. The UASFLA does not prohibit the use of
these sales, but these sales do require an additional level of scrutiny
to ensure that they are arm's length transactions and accurately
reflect open market situations.
(v) Qualifications and Training
Comment: Thirty-two comments addressed the inclusion of
qualifications for appraisers in the proposed rule.
Response: The qualifications established by AVSO are included in a
draft of Part 602, Chapter 1 of the Departmental Manual that is
currently being updated by the Department. For fee appraisers preparing
valuation products (including appraisals and appraisal reviews) for
financial assistance programs within the Department, appraisers must
hold an appraisal license in the State where the property appraised is
located, commensurate with the type of property being appraised. This
requirement allows an appraiser to conduct appraisals or appraisal
reviews for financial assistance programs as long as they act within
the property type and value limits of their level of license. Title XI
of the FIRREA established these limits. The qualifications established
by AVSO are consistent with this law. The UASFLA does not prohibit the
use of comparable sales involving government entities or nonprofit
organizations, but these sales do require an additional level of
scrutiny to ensure that they are arm's length transactions and
accurately reflect open market situations because they can reflect non-
market motivation or other influences such as tax benefits to the
seller.
Comment: Other comments were received that discussed appraisers
being ``Yellow Book or UASFLA Certified'' or a specific certification
required for appraisers or review appraisers.
Response: In either case, there are no certifications specific to
either UASFLA appraisals or appraisal review. Regarding UASFLA
appraisals, any appraiser can perform UASFLA appraisals as long as they
are competent to perform the assignment and the property type and value
are within the limits of their license as established by FIRREA.
Various appraisal organizations offer training in conducting UASFLA
appraisals, and these courses are available online and in traditional
classroom settings to facilitate appraisers becoming familiar with the
standard.
For appraisal review qualifications, there are specific review
designations for appraisers offered by at least two professional
appraisal organizations--the Appraisal Institute (AI-GRS) and the
American Society of Farm Managers and Rural Appraisers (RPRA) that
conform to the Departmental Manual, Part 602, Chapter 1, requirements
requiring education and experience in appraisal review, a comprehensive
exam, and a demonstration appraisal review report.
Comment: Two comments were received that indicated that an
appraisal review designation should be required to be considered
``qualified'' for appraisals related to grant programs.
Response: Since this is not required for appraisals used for direct
acquisition by the United States, it is not realistic to require a
higher level of qualification for appraisers conducting appraisals and
appraisal reviews for financial assistance programs.
(vi) Requirements for Recipient Reporting on Real Property Purchases
Comment: Forty-two commenters raised questions regarding the public
land reporting requirements in Sec. 1402.329(d). Commenters stated
that the reporting requirement is redundant and an unnecessary burden
to the grantee, and that the SF-429A requires information that is above
and beyond the intent of 2 CFR 200.329. Other commenters focused on
current program reporting requirements, and how the requirements in
this rule would impact those current requirements in terms of reporting
deadlines, data, and forms.
Response: The intent of the rule is to standardize the process for
land requirements and data collected across all DOI Federal assistance
programs. The requirements in this rule will be
[[Page 45633]]
adopted by all DOI programs, and will replace, not add to, existing
requirements. Program specific requirements by commenters will be
replaced with one standardized process. This reporting requirement in
this rule does not expand the requirements in 2 CFR 200.329, but merely
clarifies DOI's standards for the format and deadlines of the reporting
that is already required by that section. This final rule requires
using a Standard Form that has already been established as a Government
standard, in order to conform with an existing format and to avoid the
creation of a duplicative form. The DOI made no changes to the proposed
rule in response to this comment.
(4) Comments Related to Definitions
(i) Employment
Comment: One commenter requested that DOI revise the definition of
employment in the rule, and suggested that the definition expands upon
traditional definitions of the term under the Fair Labor Standards Act
(FLSA) by including relationships such as ``contractor'' and
``partner.''
Response: This definition in the rule is intended to make clear
that the types of personal services as described therein are also
included in the definition of employment and should be reported as such
in the grant application or progress report. The DOI made no changes to
the proposed rule in response to this comment.
(ii) Non-Federal Entity
Comment: The definition of non-Federal entity in Sec. 1402.6 is an
identical definition provided in 2 CFR 200.69. We recommend this to be
removed because there is no additional value or clarification provided
here.
Response: The definition in Sec. 1402.6 slightly revises the
definition in 2 CFR 200.69 to also include for-profit entities in the
definition of non-Federal entity. As explained in the proposed rule, we
believe this is needed because 2 CFR part 200 leaves the Department
discretion for for-profit entities. Accordingly, DOI made no changes to
the proposed rule in response to this comment.
(iii) Real Property
Comment: The proposed definition in Sec. 1402.7 needs further
clarity on land and interests in land.
Response: The DOI revised the definition of real property in the
proposed rule in response to this comment. DOI clarified that real
property interests were included in the definition of real property.
(5) Comments on Other Sections
(i) Section 1402.100 Purpose
Comment: Three commenters raised concern over the stated purpose of
the proposed rule. The background information states that ``the
proposed rule represents an administrative simplification and is not
intended to make any substantive changes to 2 CFR part 200 policies and
procedures.'' However, the proposed rule implements appraisal standards
(Sec. 1402.329) and specific reporting forms (SF-429) is well beyond
what is required by 2 CFR part 200.
Response: Title 2 CFR 200.329 states that in those instances where
the Federal interest in real property attached is for a period of 15
years or more, the Federal awarding agency at its option, may require
the non-Federal entity to report at various multi-year frequencies
(e.g., every two years or every three years, not to exceed a five-year
reporting period; or a Federal awarding agency or pass-through entity
may require annual reporting for the first three years of a Federal
award and thereafter require reporting every five years). As explained
in the proposed rule, we believe this section does not expand reporting
requirements, but clarifies the specific approach that will be required
for awards made by the DOI for interests held longer than 15 years. The
DOI made no changes to the proposed rule in response to this comment.
(ii) Effective Date
Comment: One commenter requested a clarification on the effective
date of the final rule and whether it would apply retroactively to
previously issued Federal awards.
Response: The FAIR applies to all DOI new awards or award revisions
made after the effective date of the final rule. The DOI made no
changes to the proposed rule in response to this comment.
(iii) Applicability of Other Regulations and Policies
Comment: Sixteen commenters submitted questions and comments
regarding the FAIR's effect on terms and conditions for awards issued
prior to the effective date of the rule and 2 CFR part 200, and whether
the terms and conditions in DOI Federal assistance awards would be
subject to the notice and comment process.
Response: The FAIR supplements the terms and conditions in 2 CFR
part 200 in areas of particular interest for the DOI and gives more
detailed instructions on how to implement 2 CFR part 200 with regard to
each section in this final rule. Program offices may impose additional
programmatic and grants administration requirements via agency policy
statements, Notice of Funding Opportunity announcements, and terms and
conditions of award. The DOI will not apply this rule retroactively. It
will only be applied to new awards or award revisions made after the
effective date of the final rule. The DOI made no changes to the
proposed rule in response to this comment.
(iv) Conflicts of Interest (Sec. 1402.112)
Comment: Seven commenters expressed the desire for the regulatory
language to be removed or revised to remove confusion and redundancy.
Commenters stated that the requirement to disclose potential conflicts
of interest, and any outstanding unresolved matters, has the potential
for varying interpretations because subjectivity is involved.
Commenters also distinguished between State and Federal requirements.
Response: Section 1402.112 is critical to ensure that recipients of
Federal assistance awards disclose any conflicts of interest that might
impede their ability to serve the public purpose of the award. While
DOI recognizes that conflict of interest provisions are inherently
subjective, the language in this final rule supplements the language in
2 CFR part 200, and provides some additional clarifications. Section
1402.112 removed paragraph (b) to be consistent with 2 CFR 200.318(c).
This amendment also clarifies that States and local governments are
permitted to follow their own conflict of interest policies. Further,
Sec. 1402.112, as proposed, provides Review Procedures, which are not
included in 2 CFR part 200. As explained in the preamble of the
proposed rule, the DOI believes that these sections are needed to
ensure full transparency into any conflicts of interest that are held
by potential award recipients.
(v) Mandatory Disclosure (Sec. 1402.113)
Comment: Three commenters expressed the desire for clarity on
standards that would apply in making a determination and disclosure of
potential conflicts. There was concern that this section will impose a
disproportionate reporting burden on States, as States have multiple
grantors and deal with multiple Offices of Inspector Generals. Also,
the proposed rule does not state at what point an issue is determined
to be ``unresolved.'' Is it unresolved when it is questioned, or only
if it is outstanding after the
[[Page 45634]]
corrective action plan, or sometime in between?
Response: The DOI revised the language in this section to limit
those ``unresolved'' items that are to be reported as those items that
do not have an approved (by the awarding agency) corrective action plan
in place and remain open.
(vi) Merit Review (Sec. 1402.204)
Comment: Four commenters raised questions about the merit review
section, including concern over how competition requirements are
defined. Commenters were concerned over using the word ``maximum'' to
describe the type of competition. Commenters expressed the view that
the use of a subjective word like maximum lends itself to significant
differences in standards based on region/State, or even individuals,
implementing the funding opportunity and could result in unequal
opportunities nationwide. There was also a comment raised that the
programmatic investment guidance outlined by congressional mandates may
not be consistent with the current DOI Government Performance and
Results Act Strategic Plan as required in Sec. 1402.204.
Response: The Department made changes to the proposed rule in
response to this comment by removing the following language: ``It is
also important for DOI bureaus and offices to create review systems for
noncompetitively awarded discretionary . . .'' and the word
``maximum.'' that originally appeared in the proposed rule at Sec.
1402.204(a). DOI also revised Sec. 1402.204 to add ``unless otherwise
required by statute'' with respect to the current DOI Government
Performance and Results Act Strategic Plan to clarify DOI does not
intent to violate congressional mandates.
(vii) Specific Award Conditions (Sec. 1402.207(b))
Comment: One commenter requested clarification on paragraph (b) and
the inclusion of all recipients. The commenter noted that most of this
section is explicit in stating it applies for-profit entities,
paragraphs (a) and (c). Paragraph (b) does not state for-profit
entities explicitly, so does this mean this paragraph is for all
recipients, regardless of whether it is for-profit or not?
Response: Paragraph (b) applies to both nonprofit and for-profit
recipients. The DOI believed it was clear that both the for-profit and
non-profit entities were covered by this provision, but to be explicit,
introductory text was added as follows: ``The following financial
assistance award terms and conditions always apply to non-profit and
domestic for-profit entities:''
(viii) Lobbying Disclosure and Certification
Comment: One commenter suggested that the referenced section (Sec.
1402.208) is duplicate language already proposed in Sec. 1402.112(d)
and suggested removal.
Response: The DOI made changes to the proposed rule in response to
this comment by deleting Sec. 1402.208.
(ix) Indirect Cost Rates
Comment: Four commenters raised concern over the approval process
and documentation for indirect cost rates required in Sec. 1402.414.
One commenter noted that the requirements stated in the rule have been
in effect since 2014 and have been working well.
Response: The approval of programmatic deviations to negotiated
indirect cost rates is handled on a case-by-case review and is at the
discretion of each bureau's grants program guidelines. The procedures
outlined in this rule are consistent with 2 CFR part 200, and have been
in place within DOI via policy guidance since 2014. Under this rule, a
voluntary rate reduction should be confirmed in writing with the
Financial Assistance Officer identified in the Notice of Funding
Announcement. The voluntary rate reductions should be noted in the pre-
award proposal documents submitted for review at the time of the
application. Federal agencies may use a rate different from the
negotiated rate for a class of awards or a single Federal award only
when required by Federal statute or regulation, or when approved by a
Federal awarding agency head or delegate based upon documented
justification described within 2 CFR 200.414(c)(3). Indirect cost rate
agreements are negotiated within 6 months from the time a grantee
submits a complete and acceptable proposal package. Title 2 CFR part
200 allows grantees to develop and submit their indirect cost rate
proposals 6 months after the end of their fiscal year. The DOI made no
changes to the proposed rule in response to this comment.
IV. Conclusion
DOI reviewed and considered the comments received, and determined
to adopt this final rule with the changes described and minor editorial
changes.
V. Required Determinations
1. Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides that the OMB's Office of
Information and Regulatory Affairs will review all significant rules.
The Office of Information and Regulatory Affairs has determined that
this rule is not significant. Executive Order 13563 reaffirms the
principles of E.O. 12866, calling for improvements in the nation's
regulatory system to promote predictability, to reduce uncertainty, and
to use the best, most innovative, and least burdensome tools for
achieving regulatory objectives. E.O. 13563 directs agencies to
consider regulatory approaches that reduce burdens and maintain
flexibility and freedom of choice for the public, where these
approaches are relevant, feasible, and consistent with regulatory
objectives.
2. Regulatory Flexibility Act
This final rule will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). The Department of the Interior generally
does not award grants to small businesses. The vast majority of
Interior grants are awarded to States, local governments, and not-for-
profit organizations.
3. Small Business Regulatory Enforcement Fairness Act
The final rule is not a major rule under the Small Business
Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:
(a) Does not have an annual effect on the economy of $100 million
or more. The Department of the Interior generally does not award grants
to small businesses.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. This
rule establishes regulations for DOI financial assistance. DOI
financial assistance is typically offered to States, local governments
and not-for-profit institutions. It does not affect business
relationships, employment, investment, productivity, innovations, or
the ability of U.S.-based enterprises to compete internationally.
4. Unfunded Mandates Reform Act
This rule:
(a) Does not impose an unfunded mandate on State, local, or tribal
governments or the private sector of more than $100 million per year.
[[Page 45635]]
(b) Does not have a significant or unique effect on State, local,
or tribal governments, or the private sector.
(c) This regulation clarifies the applicability of two existing
regulations--the regulatory requirement for reporting under 2 CFR
200.329--Reporting on Real Property, and the regulatory language
establishing use of the Uniform Appraisal Standards for Federal Land
Acquisitions (UASFLA or ``Yellow Book'') standard under 49 CFR 24.103--
to financial assistance actions at the Department of the Interior. This
regulation establishes a permitted standard for appraisals under 49 CFR
24.103 and specifies the required timing increments of reports under 2
CFR 200.329.
A statement containing the information required by the Unfunded
Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.
5. Takings (E.O. 12630)
Under the criteria in section 2 of E.O. 12630, this rule does not
have significant takings implications. It does not impose any
obligations on the public that would result in a taking. A takings
implication assessment is not required.
6. Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. This is because it will not
substantially and directly affect the relationship between the Federal
and State governments. Accordingly, a federalism summary impact
statement is not required.
7. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a) of this E.O. requiring that
all regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) of this E.O. requiring
that all regulations be written in clear language and contain clear
legal standards.
8. Consultation With Indian Tribes (E. O. 13175)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian tribes through a
commitment to consultation and recognition of their right to self-
governance and tribal sovereignty. DOI has evaluated this rule under
the Department's consultation policy and under the criteria in E.O.
13175 and have determined that it has no substantial direct effect on
federally recognized Indian tribes and that consultation under the
Department's tribal consultation policy is not required.
9. Paperwork Reduction Act, 44 U.S.C. 3501, et seq.
This regulation will require the use of the SF 429 to fulfill the
requirement in 2 CFR 200.329. Each Bureau will submit a request for
common form usage to the Office of Management and Budget for use of SF
429--Real Property Status Report--Cover Page, SF 429A--Real Property
Status Report--Attachment A--General Reporting, and SF 429B--Real
Property Status Report--Attachment B--Request to Acquire, Improve, or
Furnish.
10. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required. Pursuant to Department Manual 516 DM 2.3A(2), section 1.10 of
516 DM 2, Appendix 1 excludes from documentation in an environmental
assessment or impact statement ``policies, directives, regulations and
guidelines of an administrative, financial, legal, technical or
procedural nature; or the environmental effects of which are too broad,
speculative or conjectural to lend themselves to meaningful analysis
and will be subject to the NEPA process, either collectively or case-
by-case.''
11. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O. 13211; therefore, a Statement of Energy Effects is not
required.
12. Plain Language
DOI is required by section 1(b)(12) of E.O. 12866 and Section
3(b)(1)(B) of E.O. 12988 and by the Presidential Memorandum of June 1,
1998, to write all rules in plain language. This means that this rule:
(a) Is logically organized;
(b) Uses the active voice to address readers directly;
(c) Uses common, everyday words and clear language rather than
jargon;
(d) Is divided into short sections and sentences; and
(e) Uses lists and tables wherever possible.
List of Subjects in 2 CFR Part 1402
Accounting, Administrative practice and procedure, Adult education,
Aged, Agriculture, American Samoa, Bilingual education, Blind, Business
and industry, Civil rights, Colleges and universities, Communications,
Community development, Community facilities, Copyright, Credit,
Cultural exchange programs, Educational facilities, Educational
research, Education, Education of disadvantaged, Education of
individuals with disabilities, Educational study programs, Electric
power, Electric power rates, Electric utilities, Elementary and
secondary education, Energy conservation, Equal educational
opportunity, Federally affected areas, Government contracts, Grant
programs, Grant programs--agriculture, Grant programs--business, Grant
programs--communications, Grant programs--education, Grant programs--
energy, Grant programs--health, Grant programs--housing and community
development, Grant programs--social programs, Grants administration,
Guam, Home improvement, Homeless, Hospitals, Housing, Human research
subjects, Incorporation by reference, Indians, Indians--education,
Infants and children, Insurance, Intergovernmental relations,
International organizations, Inventions and patents, Loan programs,
Loan programs social programs, Loan programs--agriculture, Loan
programs--business and industry, Loan programs--communications, Loan
programs--energy, Loan programs--health, Loan programs--housing and
community development, Manpower training programs, Migrant labor,
Mortgage insurance, Nonprofit organizations, Northern Mariana Islands,
Pacific Islands Trust Territories, Privacy, Renewable energy, Reporting
and recordkeeping requirements, Rural areas, Scholarships and
fellowships, School construction, Schools, Science and technology,
Securities, Small businesses, State and local governments, Student aid,
Teachers, Telecommunications, Telephone, Urban areas, Veterans, Virgin
Islands, Vocational education, Vocational rehabilitation, Waste
treatment and disposal, Water pollution control, Water resources, Water
supply, Watersheds, Women.
For the reasons set forth in the preamble, the Department of the
Interior revises 2 CFR part 1402 to read as follows:
[[Page 45636]]
PART 1402--FINANCIAL ASSISTANCE INTERIOR REGULATION, SUPPLEMENTING
THE UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT
REQUIREMENTS FOR FEDERAL AWARDS
Subpart A--Definitions
Sec.
1402.1 Definitions.
1402.2 Employment.
1402.3 Financial Assistance Officer.
1402.4 Foreign entity.
1402.5 Non-Federal entity.
1402.6 Real property.
Subpart B--General Provisions
1402.100 Purpose.
1402.101 To whom does this part apply?
1402.102 Are there any exceptions to this part?
1402.103 What other policies or procedures must non-Federal entities
follow?
1402.104-1402.111 [Reserved]
1402.112 What are the conflict of interest policies?
1402.113 What are the mandatory disclosure requirements?
1402.114-1402.203 [Reserved]
Subpart C--Pre-Federal Award Requirements and Contents of Federal
Awards
1402.204 What are the merit review requirements for competitive
awards?
1402.205 [Reserved]
1402.206 What are the FAIR requirements for domestic for-profit
entities?
1402.207 What specific conditions apply?
1402.208-1402.299 [Reserved]
Subpart D--Post Federal Award Requirements
1402.300 What are the statutory and national policy requirements?
1402.301-1402.314 [Reserved]
1402.315 What are the requirements for the availability of data?
1402.316-1402.328 [Reserved]
1402.329 What are the requirements for land acquired under an award?
1402.330-1402.413 [Reserved]
1402.414 What are the negotiated indirect cost rate deviation
policies?
1402.415-1402.999 [Reserved]
Authority: 5 U.S.C. 301 and 2 CFR part 200.
Subpart A--Definitions
Sec. 1402.1 Definitions.
The definitions in this subpart are for terms used in this part.
For terms used in this part that are not defined, the definitions in 2
CFR part 200 apply. Different definitions may be found in Federal
statutes or regulations that apply more specifically to particular
programs or activities.
Sec. 1402.2 Employment.
Employment includes any form of non-Federal employment or business
relationship involving the provision of personal services by the
employee, whether to be undertaken at the same time as, or subsequent
to Federal employment. It includes but is not limited to personal
services as an officer, director, employee, agent, attorney,
consultant, contractor, general partner, or trustee of the other
organization.
Sec. 1402.3 Financial Assistance Officer.
Financial Assistance Officer means a person with the authority to
enter into, administer, and/or terminate financial assistance awards
(including grants and cooperative agreements); and make related
determinations and findings.
Sec. 1402.4 Foreign entity.
Foreign entity means both ``foreign public entity'' and ``foreign
organization,'' as defined in 2 CFR 200.46 and 200.47.
Sec. 1402.5 Non-Federal entity.
Non-Federal entity means a State, local government, Indian tribe,
institution of higher education (IHE), for-profit entity, or nonprofit
organization that carries out a Federal award as a recipient or
subrecipient.
Sec. 1402.6 Real property.
Real property has the same meaning as set forth in 2 CFR 200.85,
except that the definition in this section also applies to legal
ownership interests in land such as easements.
Subpart B--General Provisions
Sec. 1402.100 Purpose.
(a) The Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards set forth in 2 CFR part 200 apply
to the Department of the Interior. This part adopts, as the Department
of the Interior (DOI) policies and procedures, the Office of Management
and Budget's (OMB) Uniform Administrative Requirements, Cost
Principles, and Audit Requirements set forth in 2 CFR part 200. The
Uniform Guidance applies in full except as stated in this part.
(b) This part establishes DOI financial assistance regulations that
implement or supplement the OMB's Uniform Guidance. It is designed to
ensure that financial assistance is administered in full compliance
with applicable law, regulation, policy, and best practices to ensure
the American people get the most value from the funds DOI awards on
financial assistance. For supplemental guidance, DOI has adopted
section numbering that corresponds to related OMB guidance in 2 CFR
part 200.
(c) This part extends 2 CFR part 200, subparts A through E,
policies and procedures to foreign public entities and foreign
organizations as allowed by 2 CFR 200.101, except as indicated
throughout this part.
Sec. 1402.101 To whom does this part apply?
(a) This part applies to all DOI grant-making activities and to any
non-Federal entity that applies for, receives, operates, or expends
funds from a DOI Federal award after October 29, 2019, unless otherwise
authorized by Federal statute.
(b) This part applies to foreign entity applicants and recipients,
except where the DOI office or bureau determines that the application
of this part would be inconsistent with the international obligations
of the United States or the statutes or regulations of a foreign
government (see Sec. 1402.102).
(1) Foreign entities are subject to the definitions and
requirements in 2 CFR part 200, subparts A through E, and as
supplemented by this part. In addition to the general requirements in 2
CFR part 200, foreign entities must follow the special considerations
and requirements for different classes of recipients in subparts A
through E as follows, unless otherwise instructed in this part:
(i) Foreign public entities are to follow those for States, with
the exception of the State payment procedures in 2 CFR 200.305(a).
Foreign public entities must follow the payment procedures for non-
Federal entities other than States;
(ii) Foreign nonprofit organizations are to follow those for
nonprofits; and
(iii) Foreign higher education institutions are to follow those for
Institutions of Higher Education (IHEs).
(2) [Reserved]
Sec. 1402.102 Are there any exceptions to this part?
(a) Awards made in accordance with the Indian Self-Determination
and Education Assistance Act (Pub. L. 93-638, 88 Stat. 2204), as
amended, are governed by 25 CFR parts 900 and 1000, and by 2 CFR part
200, subparts E and F.
(b) Exceptions for individual foreign entities to the requirements
in this part may be authorized by the Director, Office of Grants
Management. Such exceptions must be made in accordance with written
bureau or office policy and procedures.
(1) Foreign entities must request any exception to a requirement
established in this part in writing. Such requests must be submitted to
the funding bureau or office by an authorized
[[Page 45637]]
official of the foreign entity, and must provide sufficient pertinent
background information, including:
(i) Identification of the requirement under this part that is
inconsistent with an in-country statute or regulation to which the
foreign entity is subject;
(ii) A complete description of the in-country statute or
regulation, including a description of how it prohibits or otherwise
limits the foreign entity's ability to comply with the identified
requirement under this part; and
(iii) Identification of the entity's name, DOI award(s) affected,
and point of contact for the request.
(2) The Director, Office of Grants Management may approve
exceptions for individual foreign entities to the requirements of this
part only when it has been determined that the requirement to be waived
is inconsistent with either the international obligations of the United
States or the statutes or regulations of a foreign government. Bureaus
and offices will communicate exception request decisions to the
requesting entity in writing.
(3) Submissions by public international organization submissions of
any assurances, certifications or representations required for and
related to a Federal award do not constitute a waiver of immunities
provided under the International Organizations Immunities Act (22
U.S.C. 288-288f).
(4) Foreign entities are not subject to the following requirements
in 2 CFR part 200:
(i) Foreign entities may be subject to other applicable
international or in-country alternatives to generally accepted
accounting principles (GAAP), such as the International Financial
Reporting Standards (IFRS). See 2 CFR 200.403, Factors affecting
allowability of costs;
(ii) 2 CFR 200.321, Contracting with small and minority businesses,
women's business enterprises, and labor surplus area firms; and
(iii) Section 6002 of the Solid Waste Disposal Act. See 2 CFR
200.322, Procurement of recovered materials.
Sec. 1402.103 What other policies or procedures must non-Federal
entities follow?
Non-Federal entities must follow bureau or office policies and
procedures as communicated in notices of funding opportunity (NOFOs)
and award terms and conditions. In the event such policies or
procedures conflict with 2 CFR part 200 or this part, 2 CFR part 200 or
this part will supersede, unless otherwise authorized by Federal
statute.
Sec. Sec. 1402.104-1402.111 [Reserved]
Sec. 1402.112 What are the conflict of interest policies?
This section shall apply to all non-Federal entities. NOFOs and
financial assistance awards must include the full text of the conflict
of interest provisions in paragraphs (a) through (e) of this section.
(a) Applicability. (1) This section intends to ensure that non-
Federal entities and their employees take appropriate steps to avoid
conflicts of interest in their responsibilities under or with respect
to Federal financial assistance agreements.
(2) In the procurement of supplies, equipment, construction, and
services by recipients and by subrecipients, the conflict of interest
provisions in 2 CFR 200.318 apply.
(b) Notification. (1) Non-Federal entities, including applicants
for financial assistance awards, must disclose in writing any conflict
of interest to the DOI awarding agency or pass-through entity in
accordance with 2 CFR 200.112.
(2) Recipients must establish internal controls that include, at a
minimum, procedures to identify, disclose, and mitigate or eliminate
identified conflicts of interest. The recipient is responsible for
notifying the Financial Assistance Officer in writing of any conflicts
of interest that may arise during the life of the award, including
those that have been reported by subrecipients.
(c) Restrictions on lobbying. Non-Federal entities are strictly
prohibited from using funds under a grant or cooperative agreement for
lobbying activities and must provide the required certifications and
disclosures pursuant to 43 CFR part 18 and 31 U.S.C. 1352.
(d) Review procedures. The Financial Assistance Officer will
examine each conflict of interest disclosure on the basis of its
particular facts and the nature of the proposed grant or cooperative
agreement, and will determine whether a significant potential conflict
exists and, if it does, develop an appropriate means for resolving it.
(e) Enforcement. Failure to resolve conflicts of interest in a
manner that satisfies the government may be cause for termination of
the award. Failure to make required disclosures may result in any of
the remedies described in 2 CFR 200.338, Remedies for noncompliance,
including suspension or debarment (see also 2 CFR part 180).
Sec. 1402.113 What are the mandatory disclosure requirements?
In addition to the disclosures required under 2 CFR 200.112 and
200.113, non-Federal entities, including applicants for all Federal
awards, must disclose in writing any potential or actual conflict of
interest to the DOI awarding agency or pass-through entity. Non-Federal
entities and applicants must also disclose any outstanding unresolved
matters with the Government Accountability Office or an Office of
Inspector General when submitting a proposal and through the life of
the award as needed. Unresolved items are those items that do not have
an approved (by the awarding agency) corrective action plan in place
and remain open.
Sec. Sec. 1402.114-1402.203 [Reserved]
Subpart C--Pre-Federal Award Requirements and Contents of Federal
Awards
Sec. 1402.204 What are the merit review requirements for competitive
awards?
The requirements in this section apply to competitive grants and
cooperative agreements unless otherwise authorized by Federal statute.
Merit review procedures must be described or incorporated by reference
in NOFOs (see 2 CFR part 200, appendix I, and 2 CFR 200.203). Pre-award
considerations for both discretionary competitive and noncompetitive
awards shall take into account the alignment of the award's purpose,
goals, and measurement with the current DOI Government Performance and
Results Act Strategic Plan including, the mission statement, vision,
values, goals, objectives, strategies, and performance metrics therein,
unless otherwise prohibited by statute.
(a) Competition in grant and cooperative agreement awards.
Competition is expected in awarding discretionary funds, unless
otherwise directed by Congress. When grants and cooperative agreements
are awarded competitively, DOI requires that the competitive process be
fair and impartial, that all applicants be evaluated only on the
criteria stated in the announcement, and that no applicant receive an
unfair competitive advantage. All competitive funding announcements,
and all modifications/amendments to those announcements, must be posted
on Grants.gov (www.grants.gov).
(b) Independent objective evaluation of financial assistance
applications and proposals. Bureaus and offices must conduct reviews of
applications submitted in response to the announcement and for
selecting applicants for award following established merit review
procedures. Bureaus and offices must conduct
[[Page 45638]]
comprehensive, impartial, and objective review of applications based on
the criteria contained in the announcement by individuals who have no
conflicts of interest with respect to the competing proposal/
applications or applicants. Bureaus and offices must ensure reviewers
are qualified, applications are scored on the basis of announced
criteria, consideration is given to the level of applicant risk and
past performance, applications are ranked, and funding determinations
are made.
(c) Evaluation and Selection Plan for notice of funding
opportunities. Bureaus and offices must develop an Evaluation and
Selection Plan in concert with the notice of funding opportunity to
ensure consistency, and to outline and document the selection process.
The Evaluation and Selection Plan should be finalized prior to the
release of the notice of funding opportunity. An Evaluation and
Selection Plan is comprised of five basic elements:
(1) Merit review factors and sub-factors;
(2) A rating system (e.g., adjectival, color coding, numerical, or
ordinal);
(3) Evaluation standards or descriptions that explain the basis for
assignment of the various rating system grades/scores;
(4) Program policy factors; and
(5) The basis for selection.
(d) Basic review standards. Bureaus and offices must initially
screen applications/proposals to ensure that they meet the standards in
paragraphs (e) through (g) of this section before they are subjected to
a detailed evaluation utilizing a merit review process specified in
paragraph (h) of this section. The review system should include three
phases: Initial Screening, Threshold Screening, and a Merit Review
Evaluation Screening. Bureaus and offices may remove an application
from funding consideration if it does not pass the basic eligibility
screening per paragraphs (e) through (g) of this section.
(e) Completeness. Bureaus and offices may return applications/
proposals that are incomplete or otherwise fail to meet the
requirements of the Grants.gov announcement to the applicant to be
corrected, modified, or supplemented, or may reject the application/
proposal outright. Until the application/proposal meets the substantive
requirements of the announcement and this part, it shall not be given
detailed evaluation. Bureaus and offices may use discretion to
determine the length of time for applicants to resolve application
deficiencies.
(f) Timeliness. Bureaus and offices must consider the timeliness of
the application submission. Applications that are submitted beyond the
announced deadline date must be removed from the review process.
(g) Threshold Screening. Bureaus and offices are responsible for
screening applications and proposals for the adequacy of the budget and
compliance with statutory and other requirements. The SF-424 and budget
information (SF-424A, SF-424C, or OMB-approved alternate budget data
collection) must be reviewed according to Department of the Interior
policy.
(h) Merit Review Evaluation Screening. This is the final review
stage where the technical merit of the application/proposal is
reviewed. In the absence of a program rule or statutory requirement,
program officials shall develop criteria that include all aspects of
technical merit. Bureaus and offices shall develop criteria that are
conceptually independent of each other, but all-encompassing when taken
together. While criteria will vary, the basic criteria shall focus
reviewers' attention on the project's underlying merit (i.e.,
significance, approach, and feasibility). The criteria shall focus not
only on the technical details of the proposed project but also on the
broader importance or potential impact of the project. The criteria
shall be easily understood.
(i) Risk assessments. Bureaus and offices must also consider risk
thresholds during application/proposal review process. Elements to be
considered may include organization; single audit submissions, past
performance; availability of necessary resources, equipment, or
facilities; financial strength and management capabilities; and
procurement procedures; or procedures for selecting and monitoring
subrecipients or sub-vendors, if applicable. For all non-Federal
entities that receive an award, the Financial Assistance Officer must
document the risk analysis.
(j) Requirements for proposal evaluators. Upon receipt of a
Memorandum of Appointment, each proposal evaluator and advisor must
sign and return a Conflict of Interest Certificate to the Financial
Assistance Officer. If an actual or potential conflict of interest
exists, the appointee may not evaluate or provide advice on a potential
applicant's proposal until the conflict has been resolved or mitigated.
Further, each proposal evaluator or advisor must agree to comply with
any notice or limitation placed on the application. Upon completion of
the review, the proposal evaluator or advisor shall return or destroy
all copies of the application and accompanying proposals (or abstracts)
to DOI; and unless authorized by the Financial Assistance Officer or
agency designee, the reviewer shall not contact the non-Federal entity
concerning any aspect of the application.
Sec. 1402.205 [Reserved]
Sec. 1402.206 What are the FAIR requirements for domestic for-profit
entities?
(a) Requirements for domestic for-profit entities. (1) Section
1402.207(a) contains standard award terms and conditions that always
apply to for-profit entities and Sec. 1402.207(b) contains terms that
apply to sub-awards or contracts with for-profit entities over the
simplified acquisition threshold. Bureaus and offices must incorporate
into awards to domestic for-profit organizations the award terms and
conditions that always apply, either directly or by reference.
(2) Bureaus and offices may apply the administrative guidelines in
subparts A through D of 2 CFR part 200, the cost principles at 48 CFR
part 31, subpart 31.2, and the procedures for negotiating indirect
costs (detailed in Sec. 1402.414) to domestic for-profit entities.
(3) Depending on the nature of a particular program, offices and
bureaus may additionally develop program-specific administrative
guidelines for domestic for-profits based on the requirements in 2 CFR
part 200, subparts A through D, but may not apply more restrictive
requirements than the requirements in 2 CFR part 200, subparts A
through D, unless approved by OMB through a request to the Director,
Office of Grants Management.
(b) Requirements for award terms and conditions. Bureau and office
award terms and conditions must be managed in accordance with the
requirements in 2 CFR 200.210, Information contained in a Federal
award.
Sec. 1402.207 What specific conditions apply?
(a) The following financial assistance award terms and conditions
always apply to domestic for-profit entities:
(1) 2 CFR part 25, Universal Identifier and System for Award
Management.
(2) 2 CFR part 170, Reporting Subawards and Executive Compensation
Information.
(3) 2 CFR part 175, Award Term for Trafficking in Persons.
(4) 2 CFR part 1400, government-wide debarment and suspension (non-
procurement).
(5) 2 CFR part 1401, Requirements for Drug-Free Workplace
(Financial Assistance).
[[Page 45639]]
(6) 43 CFR part 18, New Restrictions on Lobbying. Submission of an
application also represents the applicant's certification of the
statements in 43 CFR part 18, appendix A, Certification Regarding
Lobbying.
(7) 41 U.S.C. 4712, Whistleblower Protection for Contractor and
Grantee Employees. The requirement in this paragraph (a)(7) applies to
all awards issued after July 1, 2013.
(8) 41 U.S.C. 6306, Prohibition on Members of Congress Making
Contracts with the Federal Government. No member of or delegate to the
United States Congress or Resident Commissioner shall be admitted to
any share or part of this award, or to any benefit that may arise
therefrom; this paragraph (a)(8) shall not be construed to extend to an
award made to a corporation for the public's general benefit.
(9) Executive Order 13513, Federal Leadership on Reducing Text
Messaging while Driving. Recipients are encouraged to adopt and enforce
policies that ban text messaging while driving, including conducting
initiatives of the type described in section 3(a) of the Executive
Order.
(b) The following financial assistance award terms and conditions
always apply to non-profit and domestic for-profit entities. The
recipient shall insert the following clause in all subawards and
contracts related to the prime award that are over the simplified
acquisition threshold, as defined in the Federal Acquisition
Regulation:
All awards and related subawards and contracts over the
Simplified Acquisition Threshold, and all employees working on
applicable awards and related subawards and contracts, are subject
to the whistleblower rights and remedies in accordance with the
pilot program on award recipient employee whistleblower protections
established at 41 U.S.C. 4712 by section 828 of the National Defense
Authorization Act for Fiscal Year 2013 (Pub. L. 112-239).
Recipients, their subrecipients and contractors that are awarded
contracts over the Simplified Acquisition Threshold related to an
applicable award, shall inform their employees, in writing, in the
predominant language of the workforce, of the employee whistleblower
rights and protections under 41 U.S.C. 4712.
(c) The following award terms and conditions apply to for-profit
recipients as specified in 2 CFR 200.101:
(1) Administrative requirements: 2 CFR part 200, subparts A through
D.
(2) Cost principles: 48 CFR part 31, subpart 31.2, Contracts with
Commercial Organizations.
(3) Indirect cost rate negotiations. For information on indirect
cost rate negotiations, contact the Interior Business Center (IBC)
Indirect Cost Services Division by telephone at (916) 566-7111 or by
email at [email protected]. Visit the IBC Indirect Cost Services Division
website at http://www.doi.gov/ibc/services/Indirect_Cost_Services/index.cfm for more information.
Sec. Sec. 1402.208-1402.399 [Reserved]
Subpart D--Post Federal Award Requirements
Sec. 1402.300 What are the statutory and national policy
requirements?
(a) DOI bureaus and offices will communicate to the non-Federal
entity all relevant public policy requirements, including those in
general appropriations provisions, and incorporate them either directly
or by reference in the terms and conditions of the Federal award.
(b) The non-Federal entity is responsible for complying with all
requirements of the Federal award. For all Federal awards, this
includes the provisions of Federal Funding Accountability and
Transparency Act (FFATA), which includes requirements on executive
compensation, and also requirements implementing the FFATA for the non-
Federal entity at 2 CFR part 25, financial assistance use of universal
identifier and system for award management, and 2 CFR part 170,
Reporting Subaward and Executive Compensation Information. See also
statutory requirements for whistleblower protections at 10 U.S.C. 2409,
41 U.S.C. 4712, and 10 U.S.C. 2324, 41 U.S.C. 4304 and 4310.
(c) Recipients conducting work outside the United States are
responsible for coordinating with appropriate United States and foreign
government authorities as necessary to make sure all required licenses,
permits, or approvals are obtained before undertaking project
activities. DOI does not assume responsibility for recipient compliance
with the laws, regulations, policies, or procedures of the foreign
country in which the work is conducted.
(d) As required in 54 U.S.C. 307101, World Heritage Convention,
prior to the approval of any undertaking outside the United States that
may directly and adversely affect a property that is on the World
Heritage List or on the applicable country's equivalent of the National
Register of Historic Places, the DOI bureau or office having direct or
indirect jurisdiction over the undertaking shall take into account the
effect of the undertaking on the property for purposes of avoiding or
mitigating any adverse effect.
(e) Foreign entities are responsible for complying with all
requirements of the Federal award. For awards to foreign entities, this
includes:
(1) 2 CFR part 25, Universal Identifier and System for Award
Management, unless the entity meets one or more qualifying conditions
and is exempted by the awarding bureau or office as provided for in 2
CFR part 25;
(2) 2 CFR part 170, Reporting Subaward and Executive Compensation
Information;
(3) 2 CFR part 175, Award Term for Trafficking in Persons. This
term is required in awards to foreign private entities. The term is
also required in awards to foreign public entities, if funding could be
provided under the award to a foreign private entity as a subrecipient;
(4) 2 CFR part 1400, Nonprocurement Debarment and Suspension.
Awards to foreign organizations are covered transactions under the DOI
nonprocurement debarment and suspension program. Awards to foreign
public entities are not covered transactions;
(5) 43 CFR part 18, New Restrictions on Lobbying. Foreign entities
shall file the 43 CFR part 18, appendix A, certification, and a
disclosure form, if required, with each application for Federal
assistance. See also 31 U.S.C. 1352, Limitation on use of appropriated
funds to influence certain Federal contracting and financial
transactions; and
(6) Public Law 113-235 (128 Stat. 2391, Dec. 16, 2014). Federal
award recipients are prohibited from requiring employees or contractors
seeking to report fraud, waste, or abuse to sign internal
confidentiality agreements or statements prohibiting or otherwise
restricting such employees or contractors from lawfully reporting such
waste, fraud, or abuse to a designated investigative or law enforcement
representative of a Federal department or agency authorized to receive
such information.
Sec. Sec. 1402.301-1402.314 [Reserved]
Sec. 1402.315 What are the requirements for availability of data?
(a) All data, methodology, factual inputs, models, analyses,
technical information, reports, conclusions, valuation products or
other scientific assessments in any medium or form, including textual,
numerical, graphic, cartographic, narrative, or audiovisual, resulting
from a financial assistance agreement is available for use by the
Department of the Interior, including being available in a manner that
is sufficient for independent verification.
[[Page 45640]]
(b) The Federal Government has the right to:
(1) Obtain, reproduce, publish, or otherwise use the data,
methodology, factual inputs, models, analyses, technical information,
reports, conclusions, or other scientific assessments, produced under a
Federal award; and
(2) Authorize others to receive, reproduce, publish, or otherwise
use such data, methodology, factual inputs, models, analyses, technical
information, reports, conclusions, or other scientific assessments, for
Federal purposes, including to allow for meaningful third-party
evaluation.
(c) Bureaus and offices of the Department of the Interior must
include the language in paragraphs (a) and (b) of this section in full
text in all NOFOs and financial assistance agreements.
Sec. Sec. 1402.316-1402.328 [Reserved]
Sec. 1402.329 What are the requirements for land acquired under an
award?
(a) Approval prior to land purchases. Bureaus and offices must
ensure compliance with the prior written approval requirements for land
acquisition in 2 CFR 200.439. Whenever a recipient is seeking DOI's
approval to use award funds to purchase an interest in real property,
the OMB-approved governmentwide data elements for collection of real
property reporting information, as of October 29, 2019, SF-429-B,
Request to Acquire, Improve, or Furnish, or approved alternate
standardized data collection, must be submitted to the bureau or
office. The Financial Assistance Officer is responsible for ensuring
that this requirement is met. All aspects of the purchase must be in
compliance with applicable laws and regulations relating to purchases
of land or interests in land.
(b) Appraisal requirements for land purchases. (1) Unless a waiver
valuation applies in accordance with 49 CFR 24.102(c), land or
interests in land that will be acquired under the award must be
appraised in accordance with the Uniform Appraisal Standards for
Federal Land Acquisitions, (UASFLA or the ``Yellow Book''), developed
and promulgated by the Interagency Land Acquisition Conference, 1155
15th Street NW, Suite 1111, Washington, DC 20005, by a real property
appraiser licensed or certified by the State or States in which the
property is located. The appraisal report shall be reviewed by a
qualified review appraiser that meets qualifications established by the
DOI Appraisal and Valuation Services Office (AVSO), which is
responsible for appraisal and valuation services and policy across the
Department. Bureaus and offices shall ensure that funds are not
disbursed for purchases of land or interests in land without an
appraisal accompanied by a written appraisal review report that
complies with standards approved by AVSO. Where appraisals are required
to support federally assisted land acquisitions, AVSO has oversight
responsibilities for these appraisals, including those purchased
through financial assistance actions in the various grant programs
within the Department. AVSO will coordinate with grant programs to
conduct periodic internal control review of appraisal and appraisal
review reports prepared in conjunction with grant applications for land
acquisition.
(2) The Director of the Federal Register approves the material
referenced in this section for incorporation by reference into this
section in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may
inspect a copy at the Appraisal and Valuation Services Office within
the Department of the Interior located at 1849 C St. NW, Washington, DC
20240, (202) 208-3466, or at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, email [email protected] or go to
www.archives.gov/federal-register/cfr/ibr-locations.html.
(i) Interagency Land Acquisition Conference, 1155 15th Street NW,
Suite 1111, Washington, DC 20005.
(A) Uniform Appraisal Standards for Federal Land Acquisitions,
Sixth Edition, 2016.
(B) You may obtain a print copy or interactive electronic version
from The Appraisal Foundation at https://www.appraisalfoundation.org/iMIS/itemDetail?iProductCode=351&Category=PUB or a read-only version
from the U.S. Department of Justice at https://www.justice.gov/file/408306/download.
(ii) [Reserved]
(c) Foreign land acquisition. Land to be acquired under an award
that is located outside the United States must be appraised by an
independent real property appraiser licensed or certified in the
country in which the property is located in accordance with any in-
country appraisal standards, if they exist, or with International
Valuation Standards, when such appraisals are available and financially
feasible. Otherwise, the non-Federal entity must use the most widely
accepted business practice for property valuation in the country where
the property is located and provide to the awarding DOI bureau or
office a detailed explanation of the methodology used to determine
value.
(d) Requirements for recipient reporting on real property
purchases. (1) For all financial assistance actions where real property
is acquired under the Federal award, the recipient must submit reports
on the status of the real property. Bureaus and offices must ensure
recipients receive written notification of those reporting
requirements, including reporting frequency/schedule, report content
requirements, and submission instructions, at the time of award.
(2) If the interest in the land will be held for less than 15
years, reports must be submitted annually. If the interest in the land
will be held for 15 years or more, then the recipient must submit the
first report within one year of the period of performance end date of
the award and then, at a minimum, every five years thereafter.
(3) The reports must be submitted to the Financial Assistance
Officer within the period of performance of the award. After the end of
the period of performance, reports must be submitted to a designated
individual. Each bureau must have a process in place to designate
specific individuals to receive, and review and accept the report.
(4) Recipients must use the OMB-approved governmentwide data
elements for collection of real property reporting information, as of
October 29, 2019, the Real Property Status Report Standard Form (SF)
429-A, General Reporting, to report status of land or interests in land
under Federal financial assistance awards. Bureaus or offices may
request to use an equivalent reporting format. The Director, Office of
Grants Management must approve alternate equivalent formats.
(5) Reports must include, at a minimum, sufficient information to
demonstrate that all conditions imposed on the land use are being met,
and a signed certification to that fact by the recipient of the
financial assistance award.
(6) The Financial Assistance Officer must indicate the reporting
schedule, including due dates, in the award document. The schedule must
conform with the frequency required in paragraph (d)(2) of this
section. For awards issued prior to October 29, 2019, the recipient
must contact the program to establish due dates for reports going
forward. If there is already a reporting schedule in place, then the
recipient and the program shall ensure that the schedule is updated to
conform with this part prior to the due date of the next scheduled
report.
[[Page 45641]]
Sec. Sec. 1402.330-1402.413 [Reserved]
Sec. 1402.414 What are the negotiated indirect cost rate deviation
policies?
(a) This section establishes DOI policies, procedures, and decision
making criteria for using an indirect cost rate that differs from the
non-Federal entity's negotiated rate or approved rate for DOI awards.
These are established in accordance with 2 CFR 200.414(c)(3) or (f).
(b) DOI accepts indirect cost rates that have been reduced or
removed voluntarily by the proposed recipient of the award, on an
award-specific basis.
(c) For all deviations to the Federal negotiated indirect cost
rate, including statutory, regulatory, programmatic, and voluntary, the
basis of direct costs against which the indirect cost rate is applied
must be:
(1) The same base identified in the recipient's negotiated indirect
cost rate agreement, if the recipient has a federally negotiated
indirect cost rate agreement; or
(2) The Modified Total Direct Cost (MTDC) base, in cases where the
recipient does not have a federally negotiated indirect cost rate
agreement or, with prior approval of the awarding bureau or office,
when the recipient's federally negotiated indirect cost rate agreement
base is only a subset of the MTDC (such as salaries and wages) and the
use of the MTDC still results in an overall reduction in the total
indirect cost recovered. MTDC is the base defined by 2 CFR 200.68,
Modified Total Direct Cost (MTDC).
(d) In cases where the recipient does not have a federally
negotiated indirect cost rate agreement, DOI will not use a modified
rate based upon total direct cost or other base not identified in the
federally negotiated indirect cost rate agreement or defined within 2
CFR 200.68.
(1) Indirect cost rate deviation required by statute or regulation.
In accordance with 2 CFR 200.414(c)(1), a Federal agency must use a
rate other than the Federal negotiated rate where required by Federal
statute or regulation. For such instances within DOI, the official
award file must document the specific statute or regulation that
required the deviation.
(2) Indirect cost rate reductions used as cost-share. Instances
where the recipient elects to use a rate lower than the federally
negotiated indirect cost rate, and uses the balance of the unrecovered
indirect costs to meet a cost-share or matching requirement required by
the program and/or statute, are not considered a deviation from 2 CFR
200.414(c), as the federally negotiated indirect cost rate is being
applied under the agreement in order to meet the terms and conditions
of the award.
(3) Programmatic indirect cost rate deviation approval process.
Bureaus and offices with DOI approved deviations in place prior to
October 29, 2019 are not required to resubmit those for reconsideration
following the procedures in this paragraph (d)(3). The following
requirements apply for review, approval, and posting of programmatic
indirect cost rate waivers:
(i) Program qualifications. Programs that have instituted a
program-wide requirement and governance process for deviations from
federally negotiated indirect cost rates may qualify for a programmatic
deviation approval.
(ii) Deviation requests. Deviation requests must be submitted by
the responsible senior program manager to the DOI Office of Grants
Management. The request for deviation approval must include a
description of the program, and the governance process for negotiating
and/or communicating to recipients the indirect cost rate requirements
under the program. The program must make its governance documentation,
rate deviations, and other program information publicly available.
(iii) Approvals. Programmatic deviations must be approved, in
writing, by the Director, Office of Grants Management. Approved
deviations will be made publicly available.
(4) Voluntary indirect cost rate reduction. On any single award, an
applicant and/or proposed recipient may elect to reduce or eliminate
the indirect cost rate applied to costs under that award. The election
must be voluntary and cannot be required by the awarding official,
NOFO, program, or other non-statutory or non-regulatory requirements.
For these award-specific and voluntary reductions, DOI can accept the
lower rate provided the notice of award clearly documents the
recipient's voluntary election. Once DOI has accepted the lower rate,
that rate will apply for the duration of the award.
(5) Unrecovered indirect costs. In accordance with 2 CFR 200.405,
indirect costs not recovered due to deviations to the federally
negotiated rate are not allowable for recovery via any other means.
Sec. Sec. 1402.415-1402.499 [Reserved]
Scott J. Cameron,
Principal Deputy Assistant Secretary for Policy Management and Budget.
[FR Doc. 2019-18650 Filed 8-29-19; 8:45 am]
BILLING CODE 4334-63-P