[Federal Register Volume 85, Number 199 (Wednesday, October 14, 2020)]
[Rules and Regulations]
[Pages 64943-64945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20091]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  Federal Register / Vol. 85, No. 199 / Wednesday, October 14, 2020 / 
Rules and Regulations  

[[Page 64943]]



DEPARTMENT OF ENERGY

2 CFR Part 910

RIN 1991-AC15


Financial Assistance Regulations--Deviation Authority

AGENCY: Office of Acquisition Management, Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is adopting the interim final 
rule published on June 1, 2020 as final, without change. This final 
rule amends DOE's Financial Assistance Regulations to authorize 
deviations, when necessary to achieve program objectives; necessary to 
conserve public funds; otherwise essential to the public interest; or 
necessary to achieve equity.

DATES: This rulemaking is effective on October 14, 2020.

FOR FURTHER INFORMATION CONTACT: Mr. John Harris, U.S. Department of 
Energy, Office of Acquisition Management, at (202) 287-1471 or by email 
at [email protected].

SUPPLEMENTARY INFORMATION:
I. Background and Summary of the Final Rule
II. Procedural Requirements:
    A. Review Under Executive Orders 12866 and 13563
    B. Review Under Executive Orders 13771 and 13777
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 12988
    G. Review Under Executive Order 13132
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under the Treasury and General Government 
Appropriations Act, 1999
    J. Review Under Executive Order 13211
    K. Review Under the Treasury and General Government 
Appropriations Act, 2001
    L. Review Under the Administrative Procedure Act
    M. Congressional Notification
    N. Approval by the Office of the Secretary of Energy

I. Background and Summary of the Final Rule

    This final rule amends DOE's Financial Assistance Regulations at 2 
CFR part 910, to add deviation authority to provide the Director for 
the Office of Acquisition Management, for DOE actions, and the Deputy 
Associate Administrator for the Office of Acquisition and Project 
Management for the National Nuclear Security Administration (NNSA), for 
NNSA actions, or designee the authority to authorize deviations, when 
(1) necessary to achieve program objectives; (2) necessary to conserve 
public funds; (3) otherwise essential to the public interest; or (4) 
necessary to achieve equity.
    The Department of Energy (DOE) published an interim final rule 
making the same amendments finalized in this final rule, and provided 
an opportunity for public comment, on June 1, 2020, 85 FR 32977. DOE 
received no public comments on the interim final rule. In this final 
rule, DOE adopts the interim final rule as final, without change.
    This final rule reinstates deviation authority in 2 CFR part 910 to 
give DOE the authority to deviate from its financial assistance 
regulations. This deviation authority was originally in 10 CFR 600.4 
but was not carried over in 2 CFR part 910 when DOE amended its 
Financial Assistance Regulations by adopting the Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements for Federal 
Awards as provided in OMB Guidance in 2 CFR part 200. 79 FR 75867, 
76024 (Dec. 19, 2014). In addition to adopting these requirements in 
its regulations, DOE amended its regulations to supplement the OMB 
Guidance. DOE did not, however, include in its supplementary amendments 
authority for the Department to deviate or approve exceptions to its 
regulations in 2 CFR part 910.
    Previous to the adoption and addition of the regulations above, DOE 
had the authority to deviate from its financial assistance regulations. 
See 10 CFR 600.4(c)(2)(i) and (ii). This final rule reinstates 
deviation authority that was originally in 10 CFR 600.4 to give DOE/
NNSA authority to approve a deviation when the conditions above have 
been met and as authorized by the designated officials.

II. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    This regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993). 
Accordingly, this action was not subject to review under that Executive 
order by the Office of Information and Regulatory Affairs (OIRA) in the 
Office of Management and Budget (OMB).

B. Review Under Executive Orders 13771 and 13777

    On January 30, 2017, the President issued Executive Order 13771, 
``Reducing Regulation and Controlling Regulatory Costs.'' That order 
stated that the policy of the executive branch is to be prudent and 
financially responsible in the expenditure of funds, from both public 
and private sources. The order stated that it is essential to manage 
the costs associated with the governmental imposition of private 
expenditures required to comply with Federal regulations.
    Additionally, on February 24, 2017, the President issued Executive 
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The order 
required the head of each agency to designate an agency official as its 
Regulatory Reform Officer (RRO). Each RRO oversees the implementation 
of regulatory reform initiatives and policies to ensure that agencies 
effectively carry out regulatory reforms, consistent with applicable 
law. Further, E.O. 13777 requires the establishment of a regulatory 
task force at each agency. The regulatory task force is required to 
make recommendations to the agency head regarding the repeal, 
replacement, or modification of existing regulations, consistent with 
applicable law. At a minimum, each regulatory reform task force must 
attempt to identify regulations that:
    (i) Eliminate jobs, or inhibit job creation;
    (ii) Are outdated, unnecessary, or ineffective;
    (iii) Impose costs that exceed benefits;
    (iv) Create a serious inconsistency or otherwise interfere with 
regulatory reform initiatives and policies;

[[Page 64944]]

    (v) Are inconsistent with the requirements of the Information 
Quality Act, or the guidance issued pursuant to that Act, particularly 
those regulations that rely in whole or in part on data, information, 
or methods that are not publicly available or that are insufficiently 
transparent to meet the standard for reproducibility; or
    (vi) Derive from or implement Executive orders or other 
Presidential directives that have been subsequently rescinded or 
substantially modified.
    DOE concludes that this final rule is consistent with the 
directives set forth in these Executive orders. This final rule 
reinstates DOE's authority under 2 CFR part 910 to deviate from its 
financial assistance regulations under specified circumstances as was 
originally provided under 10 CFR 600.4.

C. Review Under Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. Because a 
notice of proposed rulemaking is not required for this action pursuant 
to 5 U.S.C. 553, or any other law, no regulatory flexibility analysis 
has been prepared for this final rule.

D. Review Under the Paperwork Reduction Act

    This final rule imposes no new information collection requirements 
under the Paperwork Reduction Act of 1995 (44 U.S.C. Ch. 3506; 5 CFR 
part 1320 Appendix A.1) (PRA). DOE's associated information collection 
has been approved under OMB Control No. 1910-4100.

E. Review Under the National Environmental Policy Act

    DOE has determined that this final rule is covered under the 
Categorical Exclusion found in DOE's National Environmental Policy Act 
(42 U.S.C. 4321 et seq.)(NEPA) at paragraphs A5 and A6 of Appendix A to 
Subpart D, 10 CFR part 1021. Categorical exclusion A5 applies to a 
rulemaking that amends an existing rule or regulation and that does not 
change the environmental effect of the rule or regulation being 
amended. Categorical exclusion A6 applies to rulemakings that are 
strictly procedural. Accordingly, neither an environmental assessment 
nor an environmental impact statement is required.

F. Review Under Executive Order 12988

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

G. Review Under Executive Order 13132

    Executive Order 13132, (64 FR 43255, August 4, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. The Executive Order requires agencies to 
have an accountability process to ensure meaningful and timely input by 
state and local officials in the development of regulatory policies 
that have federalism implications.
    On March 14, 2000, DOE published a statement of policy describing 
the intergovernmental consultation process it will follow in the 
development of such regulations (65 FR 13735). DOE has examined this 
final rule and has determined that it does not preempt State law and 
does not have a substantial direct effect on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. No further action is required by Executive Order 13132.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). 
For a regulatory action likely to result in a rule that may cause the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year 
(adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and Tribal governments on a ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. 62 FR 12820. DOE's policy statement is also available at 
http://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf. UMRA 
sections 202 and 205 do not apply to this action because they apply 
only to rules for which a general notice of proposed rulemaking is 
published. Nevertheless, DOE has determined that this final rule does 
not contain a Federal intergovernmental mandate, nor is it expected to 
require expenditures of $100 million or more in any one year by the 
private sector.

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

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Public Law 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any rulemaking or policy that may 
affect family well-being. This rulemaking will

[[Page 64945]]

have no impact on the autonomy or integrity of the family as an 
institution. Accordingly, DOE has concluded that it is not necessary to 
prepare a Family Policymaking Assessment.

J. Review Under Executive Order 13211

    Executive Order 13211, Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use, (66 FR 28355, 
May 22, 2001), requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), of the Office of 
Management and Budget (OMB), a Statement of Energy Effects for any 
proposed significant energy action. A ``significant energy action'' is 
defined as any action by an agency that promulgates or is expected to 
lead to promulgation of a final rule, and that: (1) Is a significant 
regulatory action under Executive Order 12866, or any successor order, 
(2) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution and use. 
This final rule is not a significant energy action. Accordingly, DOE 
has not prepared a Statement of Energy Effects.

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

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

L. Review Under the Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b), the Administrative Procedure 
Act, DOE generally publishes a proposed rule and solicits public 
comment on it before issuing the rule in final. DOE also generally 
provides at least a 30-day delay in effective date for final rules 
pursuant to 5 U.S.C. 553(d). This rulemaking, as a matter relating to 
grants, is exempt from the requirement to publish a notice of proposed 
rulemaking under 5 U.S.C. 553(a)(2).
    DOE, however, published this rule as an interim final rule on June 
1, 2020 and allowed for public comments sixty (60) days after date of 
publication in the Federal Register. DOE received no comments in 
response to its publication of the interim final rule. DOE is waiving 
the 30-day delay in effective date pursuant to 5 U.S.C. 553(a)(2).

M. Congressional Notification

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

N. Approval by the Office of the Secretary of Energy

    The Secretary of Energy has approved publication of this final 
rule.

List of Subjects in 2 CFR Part 910

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

Signing Authority

    This document of the Department of Energy was signed on August 28, 
2020, by S. Keith Hamilton, Deputy Associate Administrator for 
Acquisition and Project Management and Senior Procurement Executive, 
National Nuclear Security Administration, pursuant to delegated 
authority from the Administrator, National Nuclear Security 
Administration, and John R. Bashista, Director, Office of Acquisition 
Management and Senior Procurement Executive, Department of Energy, 
pursuant to delegated authority from the Secretary of Energy. These 
documents with the original signature and date are maintained by DOE/
NNSA. For administrative purposes only, and in compliance with 
requirements of the Office of the Federal Register, the undersigned DOE 
Federal Register Liaison Officer has been authorized to sign and submit 
the document in electronic format for publication, as an official 
document of the Department of Energy. This administrative process in no 
way alters the legal effect of this document upon publication in the 
Federal Register.

    Signed in Washington, DC, on September 8, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
    Accordingly, the interim rule amending Chapter 9 of Title 2 of the 
Code of Federal Regulations which was published at 85 FR 32977 on June 
1, 2020, is adopted as final without change.

[FR Doc. 2020-20091 Filed 10-13-20; 8:45 am]
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