[Federal Register Volume 87, Number 53 (Friday, March 18, 2022)]
[Rules and Regulations]
[Pages 15317-15323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04240]



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 Rules and Regulations
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  Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Rules 
and Regulations  

[[Page 15317]]



DEPARTMENT OF ENERGY

2 CFR Part 910

RIN 1991-AC16


Uniform Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards

AGENCY: Office of Management, U.S. Department of Energy.

ACTION: Final rule.

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

SUMMARY: The Department of Energy (DOE) publishes a final rule to make 
technical and administrative changes as a result of the Office of 
Management and Budget (OMB) revisions to its regulations on Grants and 
Agreements. The changes are required in order to align DOE's 
regulations with the revised OMB regulations and to remove reference to 
an expired statutory cost share pilot program. The final rule also 
makes technical changes to correct pre-existing numbering errors in the 
regulatory text.

DATES: This rule is effective March 18, 2022.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Bonnell, U.S. Department 
of Energy, Office of Management, 950 L'Enfant Plaza SW, Washington, DC 
20024; (202) 287-1747 or [email protected].

SUPPLEMENTARY INFORMATION:
I. Introduction
II. Discussion of Final Rule
III. Regulatory Review
IV. Approval of the Office of the Secretary

I. Introduction

    Title 2 CFR part 910 adopts OMB's guidance, which updated its 
regulations, in subparts A through F of 2 CFR part 200 as DOE's 
policies and procedures for uniform administrative requirements, cost 
principles, and audit requirement for Federal awards. DOE is amending 2 
CFR part 910 to align with the OMB's recent revisions to its 
regulations on Grants and Agreements published on August 13, 2020, at 
85 FR 49506, which became effective on November 12, 2020. DOE further 
amends its regulation at 2 CFR 910.130 to remove reference to an 
expired statutory cost share pilot program. This final rule also makes 
technical changes to correct pre-existing numbering errors in the 
regulatory text.

II. Discussion of Final Rule

    DOE amends its Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards at 2 CFR part 910 
as follows:
    1. Section 910.122, paragraph (a) is revised to change the 
reference to Non-Federal entity from 2 CFR 200.69 to 2 CFR 200.1.
    2. Section 910.128, paragraph (f)(1)(i) is revised to change the 
reference to Specific Conditions from 2 CFR 200.207 to 2 CFR 200.208; 
paragraph (f)(1)(iv) is revised to change the reference to Remedies for 
Noncompliance from 2 CFR 200.338 to 2 CFR 200.339; paragraph (f)(1)(v) 
is revised to change the reference to Federal awarding agency or pass-
through entity review from 2 CFR 200.324 to 2 CFR 200.325; and 
paragraph (f)(2)(iii) is revised to change the reference to Termination 
from 2 CFR 200.339 to 2 CFR 200.340.
    3. Section 910.130, paragraph (b)(3) is deleted to implement the 
September 27, 2020, expiration of the Cost-Share Pilot Program enacted 
by Congress at section 108 of the Department of Energy Research and 
Innovation Act, Public Law 115-246; (e) is revised to change the 
references to the terms Development and Research from 2 CFR 200.87 to 2 
CFR 200.1.
    4. Section 910.350, paragraph (a) is revised to change the 
reference to Non-Federal entity from 2 CFR 200.69 to 2 CFR 200.1.
    5. Section 910.352 is revised to change the reference to the 
General Provisions for Selected Items of Cost from 2 CFR 200.400 
through 200.475 to 2 CFR 200.420 through 2 CFR 200.476.
    6. Section 910.360, paragraph (c)(1) is revised to change the 
reference to Remedies for non-compliance from 2 CFR 200.338 to 2 CFR 
200.339; and paragraph (c)(2) is revised to change the references to 
Federal awarding agency review of risk posed by applicants from 2 CFR 
200.205 to 2 CFR 200.206 and the reference to Specific conditions from 
2 CFR 200.207 and 2 CFR 200.208.
    7. Section 910.370, paragraph (b) is revised to change the 
reference to all of the legally available remedies for non-compliance 
from 2 CFR 200.338 through 2 CFR 200.342 to 2 CFR 200.339 through 2 CFR 
200.343.
    8. Section 910.372, paragraph (a) is revised to change the 
reference to Federal awarding agency review of risk posed by applicants 
from 2 CFR 200.205 to 2 CFR 200.206 and the reference to Specific 
Conditions from 2 CFR 200.207 to 2 CFR 200.208.
    9. Appendix A to Subpart D--Patent and Data Provisions, paragraph 
(1)(a) is revised to change the reference to the definition of 
``[n]onprofit organization'' from 2 CFR 200.70 to 2 CFR 200.1.
    10. Section 910.501, paragraph (f) is revised to change the 
reference to Subrecipient and contractor determinations from 2 CFR 
200.330 to 2 CFR 200.331; and paragraph (h) is revised to change the 
reference to Requirements for pass-through entities from 2 CFR 200.331 
to 2 CFR 200.332.
    11. In section 910.502, the following redesignations are made in 
order to correct numbering errors in the initial publication of 2 CFR 
part 910 and are made in order to improve clarity and readability of 
the section. Paragraph (b) Not applicable. is deleted; paragraph (a) 
Loan and loan guarantees (loans) is redesignated as paragraph (b); The 
introductory text beginning ``Determining Federal awards expended'' is 
designated as paragraph (a); Paragraphs (d), (e), (f), (g), (h), and 
(i) are redesignated as paragraphs (e), (f), (g), (h), (i), and (j); 
and paragraph (d) See Paragraph (b) is added.
    12. Section 910.505 is revised to change the reference to Remedies 
for noncompliance from 2 CFR 200.338 to 2 CFR 200.339.
    13. Section 910.507, paragraph (a) pertaining to auditor guidance 
when a program-specific audit guide is available is revised to 
incorporate the language changes in 2 CFR 200.507. The following 
redesignations are due to numbering errors at time of initial 
publication of 2 CFR part 910 and made in order to improve clarity and 
readability of the section. Paragraphs (a)(1), (2), (3), and (4) 
pertaining to auditor requirements when a program-specific audit guide 
is not available are redesignated as paragraphs (b)(1), (2), (3), and 
(4). Paragraph (a)(5) pertaining to report submissions for program-

[[Page 15318]]

specific audits is redesignated as paragraph (c)(1). In this final 
rule, additional conforming changes are made to paragraphs (a)(6) and 
(7) which are redesignated as (c)(2) and (3) and paragraph (b) 
redesignated as (d).
    14. Section 910.513, paragraph (c) is revised to change the 
reference to Information contained in a Federal award from 2 CFR 
200.210 to 2 CFR 200.211; and paragraph (c)(3)(iii) is revised to 
change the reference to Cooperative audit resolution from 2 CFR 200.25 
to 2 CFR 200.1.
    15. In section 910.514, the following redesignations are made in 
order to correct numbering errors in the initial publication of 2 CFR 
part 910 and made in order to improve clarity and readability of the 
section. Paragraph (b)(1) Internal control. is redesignated as 
paragraph (c); the paragraph that begins `The compliance supplement 
provides guidance . . . .' is designated as paragraph (c)(1); Paragraph 
(3)(i) is revised to remove the period and add `; and' at the end; 
Paragraph (5) Compliance. is redesignated as paragraph (d); the 
paragraph that begins `In addition to the requirements of GAGAS, . . . 
.' is designated as paragraph (d)(1); Paragraphs (6), (7), and (8) are 
redesignated as paragraphs (d)(2), (d)(3), and (d)(4); Paragraph (c) 
``Audit follow-up.'' is redesignated as paragraph (e); and paragraph 
(f) Not applicable is added to correspond with 2 CFR 200 formatting.
    16. In section 910.515, the following redesignations are made in 
order to correct numbering errors in the initial publication of 2 CFR 
part 910 and made in order to improve clarity and readability of the 
section. Paragraph (d)(2)(i) is redesignated as paragraph (d)(3); and 
the sentence beginning `Audit findings (e.g., internal control 
findings, compliance findings, questioned costs, or fraud) . . .' is 
designated as paragraph (d)(3)(i).
    17. In section 910.519, the following redesignations are made in 
order to correct numbering errors in the initial publication of 2 CFR 
part 910 and made in order to improve clarity and readability of the 
section. Paragraph (a)(1) Current and prior audit experience. is 
redesignated as paragraph (b); the text that begins `Weaknesses in 
internal control over DOE programs . . . .' is designated as paragraph 
(b)(1); Paragraph (a)(4) Oversight exercised by DOE. is redesignated as 
paragraph (c); the text that begins `Oversight exercised by DOE could 
be used . . . .' is designated as paragraph (c)(1); paragraph (a)(5) is 
redesignated as paragraph (c)(2); paragraph (a)(6) Inherent risk of the 
Federal program. is redesignated as paragraph (d); the text that begins 
`The nature of a Federal program . . . .' is designated as paragraph 
(d)(1); and paragraphs (a)(7), (a)(8), and (a)(9) are redesignated as 
paragraphs (d)(2), (d)(3) and (d)(4).
    18. In section 910.520, the following redesignations are made in 
order to correct numbering errors in the initial publication of 2 CFR 
part 910 and made in order to improve clarity and readability of the 
section. Paragraph (a) designation is moved to the second sentence 
beginning `Compliance audits were performed on an annual . . . .'.

III. Regulatory Review

A. Administrative Procedure Act

    DOE finds good cause to waive notice and comment on these 
regulations pursuant to 5 U.S.C. 553(b)(B) and the 30-day delay 
effective date pursuant to 5 U.S.C. 553(d). Notice and comment are 
unnecessary and contrary to the public interest because this final rule 
merely adopts recent amendments made by OMB to its rule on Grants and 
Agreements that published on August 13, 2020, at 85 FR 49506 and that 
became effective on November 12, 2020. DOE has concluded that there is 
good cause to publish this rule without prior opportunity for public 
comment because the action aligns DOE's regulations with OMB's, for 
which OMB solicited comment with (a 60-day public comment period (85 FR 
3766, Jan. 22, 2020). OMB, received over 2,500 comments from the 
public, federal agencies, and the Council of the Inspectors General on 
Integrity and Efficiency Grant Reform Workgroup, which OMB reviewed and 
addressed (85 FR 49506, Aug. 13, 2020). As part of that process, OMB 
reconvened agency representatives, including DOE, to review the 
comments and make changes to the proposed revisions as appropriate. 
This final rule aligns DOE's regulations with OMB's revised 
regulations. A delay in effective date is unnecessary and contrary to 
the public interest for these same reasons. In addition, this rule 
makes a non-discretionary change to remove a reference to an expired 
cost-share program and it makes technical changes to correct numbering 
errors. Therefore, these regulations are being published as final 
regulations and are effective March 18, 2022.

B. Executive Order 12866

    This final rule has been determined to not 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) of the Office of Management 
and Budget.

C. National Environmental Policy Act

    DOE has determined that the rule is covered under the Categorical 
Exclusion found in DOE's National Environmental Policy Act regulations 
at paragraph A5 of appendix A to subpart D, 10 CFR part 1021, which 
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. Accordingly, neither an environmental assessment nor an 
environmental impact statement is required.

D. 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. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of General Counsel's 
website: https://www.gc.doe.gov.
    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. As discussed 
previously, DOE has determined that providing notice and opportunity 
for public comment on this rule is unnecessary and contrary to the 
public interest. Therefore, no regulatory flexibility analysis has been 
prepared for this rule.

E. Paperwork Reduction Act

    This final rule imposes no new information or recordkeeping 
requirements. Accordingly, OMB clearance is not required under the 
Paperwork Reduction Act. (44 U.S.C. 3501 et seq.). The information 
collection necessary to administer DOE financial assistance under 2 CFR 
part 910 is subject to OMB approval under the Paperwork Reduction Act 
(PRA), 44 U.S.C. 3501 et seq. The information

[[Page 15319]]

collection provisions of this part were previously approved by OMB 
under OMB Control No. 1910-0400.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

F. 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 regulatory actions 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)). 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. (This policy is also available at https://energy.gov/gc/office-general-counsel.) DOE examined this rule according to UMRA and 
has determined that the rule contains neither an intergovernmental 
mandate, nor a mandate that may result in the expenditure by State, 
local, and tribal government, in the aggregate, or by the private 
sector, of $100 million or more in any year. Accordingly, no further 
assessment or analysis is required under UMRA.

G. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This rule would not have any 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.

H. Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999) 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. DOE has examined this rule and has 
determined that it would not preempt State law and would 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.

I. Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' 61 FR 4729 (February 7, 1996), imposes on 
executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b), Executive Order 12988 
specifically requires that Federal 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 guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met, or it 
is unreasonable to meet one or more of them. DOE has completed the 
required review and determined that to the extent permitted by law, 
this rule meets the relevant standards of Executive Order 12988.

J. 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 
OMB a Statement of Energy Effects for any significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that promulgated 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; and (2) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy, or (3) is 
designated by the Administrator of OIRA as a significant energy action. 
For any proposed significant energy action, the agency must give a 
detailed statement of any adverse effects on energy supply, 
distribution, or use should the proposal be implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use. This regulatory action would not 
have a significant adverse effect on the supply, distribution, or use 
of energy and is therefore not a significant regulatory action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

K. 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 
rule under the OMB and DOE guidelines and has concluded that it is 
consistent with applicable policies in those guidelines.

L. Congressional Review

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of this final rule prior to the effective date 
set forth at the outset of this document. The report will state that it 
has been determined that the rule is not a ``major rule'' as defined by 
5 U.S.C. 801(2).

[[Page 15320]]

IV. Approval of the Office of the Secretary

    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 February 
10, 2022, by John R. Bashista, Director, Office of Acquisition 
Management and Senior Procurement Executive, Department of Energy and 
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 
Secretary of Energy. That document with the original signature and date 
is maintained by DOE. 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 February 24, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons set forth in the preamble, the Department of Energy 
amends part 910 of chapter IX, title 2 of the Code of Federal 
Regulations as set forth below.

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

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

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


Sec.  910.122  [Amended]

0
2. Section 910.122 is amended in paragraph (a) by removing ``Part 910'' 
and ``2 CFR 200.69'' and adding in their places ``this part'' and ``2 
CFR 200.1'', respectively.


Sec.  910.128  [Amended]

0
3. Section 910.128 is amended:
0
a. In paragraph (f)(1)(i) by removing ``2 CFR 200.207'' and adding in 
its place ``2 CFR 200.208'';
0
b. In paragraph (f)(1)(iv) by removing ``2 CFR 200.338'' and adding in 
its place ``2 CFR 200.339'';
0
c. In paragraph (f)(1)(v) by removing ``2 CFR 200.324'' and adding in 
its place ``2 CFR 200.325''; and
0
d. In paragraph (f)(2)(iii) by removing ``2 CFR 200.339 (a)(1)-(2)'' 
and adding in its place ``2 CFR 200.340(a)(1) and (2)''.


Sec.  910.130   [Amended]

0
3. Section 910.130 is amended:
0
a. In paragraph (b)(1) by adding at the end of the paragraph ``or'';
0
b. In paragraph (b)(2) by removing ``; or'' and adding in its place a 
period;
0
c. By removing paragraph (b)(3); and
0
d. In paragraph (e):
0
i. In the definition for ``Development'' by removing ``2 CFR 200.87'' 
and adding in its place ``2 CFR 200.1''; and
0
ii. In the definition for ``Research'' by removing ``2 CFR 200.87'' and 
adding in its place ``2 CFR 200.1''.


Sec.  910.350   [Amended]

0
4. Section 910.350 is amended in paragraph (a) by removing ``2 CFR 
910.122'', ``part 910'', and ``2 CFR 200.69'' and adding in their 
places ``Sec.  910.22'', ``this part'', and ``2 CFR 200.1'', 
respectively.


Sec.  910.352   [Amended]

0
5. Section 910.352 is amended by removing ``2 CFR 200.400 through 
200.475'' and adding in its place ``2 CFR 200.400 through 200.476''.


Sec.  910.360   [Amended]

0
6. Section 910.360 is amended:
0
a. In paragraph (c)(1) by removing ``2 CFR 200.338'' and adding in its 
place ``2 CFR 200.339''; and
0
b. In paragraph (c)(2) by removing ``2 CFR 200.205 and 200.207'' and 
``2 CFR 910.372'' and adding in their places ``2 CFR 200.206 and 
200.208'' and ``Sec.  910.372'', respectively.


Sec.  910.370   [Amended]

0
7. Section 910.370 is amended in paragraph (b) by removing ``2 CFR 
200.338 through 200.342'' and adding in its place ``2 CFR 200.339 
through 200.343''.


Sec.  910.372   [Amended]

0
8. Section 910.372 is amended in paragraph (a) introductory text by 
removing ``2 CFR 200.205'' and adding in its place ``2 CFR 200.206'' 
and removing ``2 CFR 200.207'' and adding in its place ``2 CFR 
200.208''.

Appendix A to Subpart D of Part 910 [Amended]

0
9. Appendix A to subpart D of part 910 is amended in section 1., 
paragraph (a), in the definition of ``Nonprofit organization'', by 
removing ``2 CFR 200.70'' and adding in its place ``2 CFR 200.1''.


Sec.  910.501   [Amended]

0
10. Section 910.501 is amended:
0
a. In paragraph (e) by removing ``Part'' and adding in its place 
``part'';
0
b. In paragraph (f) by removing ``Part'' and ``Section 2 CFR 200.330 
Subrecipient and contractor determinations'' and adding in their places 
``part'' and ``The provisions of 2 CFR 200.331, Subrecipient and 
contractor determinations,'', respectively; and
0
c. In paragraph (h) by removing ``Part'' and ``2 CFR 200.331'' and 
adding in their places ``part'' and ``2 CFR 200.332,''.

0
11. Section 910.502 is revised to read as follows:


Sec.  910.502  Basis for determining DOE awards expended.

    (a) Determining Federal awards expended. The determination of when 
a Federal award is expended must be based on when the activity related 
to the DOE award occurs. Generally, the activity pertains to events 
that require the non-Federal entity to comply with Federal statutes, 
regulations, and the terms and conditions of DOE awards, such as: 
Expenditure/expense transactions associated with awards including 
grants, cost-reimbursement contracts under the FAR, compacts with 
Indian Tribes, cooperative agreements, and direct appropriations; the 
disbursement of funds to subrecipients; the use of loan proceeds under 
loan and loan guarantee programs; the receipt of property; the receipt 
of surplus property; the receipt or use of program income; the 
distribution or use of food commodities; the disbursement of amounts 
entitling the for-profit entity to an interest subsidy; and the period 
when insurance is in force.
    (b) Loan and loan guarantees (loans). Loan and loan guarantees 
issued by the DOE Loan Program Office corresponding to Title XVII of 
the Energy Policy Act of 2005, as amended, 42 U.S.C. 16511-16516 
(``Title XVII'') are exempt from these provisions.
    (1) Not applicable.
    (2) Not applicable.
    (3) Not applicable.
    (c) Not applicable.

[[Page 15321]]

    (d) Prior loan and loan guarantees (loans). See paragraph (b) of 
this section.
    (e) Endowment funds. The cumulative balance of DOE awards for 
endowment funds that are federally restricted are considered DOE awards 
expended in each audit period in which the funds are still restricted.
    (f) Free rent. Free rent received by itself is not considered a DOE 
award expended under this Part. However, free rent received as part of 
a DOE award to carry out a DOE program must be included in determining 
DOE awards expended and subject to audit under this part.
    (g) Valuing non-cash assistance. DOE non-cash assistance, such as 
free rent, food commodities, donated property, or donated surplus 
property, must be valued at fair market value at the time of receipt or 
the assessed value provided by DOE.
    (h) Not applicable.
    (i) Not applicable.
    (j) Not applicable.


Sec.  910.505   [Amended]

0
12. Section 910.505 is amended by removing ``Part'' and ``2 CFR 
200.338'' and adding in their places ``part'' and ``2 CFR 200.339,'', 
respectively.

0
13. Section 910.507 is revised to read as follows:


Sec.  910.507   Compliance audits.

    (a) Program-specific audit guide available. In some cases, a 
program-specific audit guide will be available to provide specific 
guidance to the auditor with respect to internal controls, compliance 
requirements, suggested audit procedures, and audit reporting 
requirements. A listing of current program-specific audit guides can be 
found on the OMB website in the compliance supplement, in part 8, 
appendix VI, Program-Specific Audit Guides, which includes a website 
where a copy of the guide can be obtained. When a current program-
specific audit guide is available, the auditor must follow generally 
accepted government auditing standards (GAGAS) and the guide when 
performing a compliance audit.
    (b) Program-specific audit guide not available. (1) When a program-
specific audit guide is not available, the auditee and auditor must 
conduct the compliance audit in accordance with GAAS and GAGAS.
    (2) If audited financial statements are available, for-profit 
recipients should submit audited financial statements to DOE as a part 
of the compliance audit. (If the recipient is a subsidiary for which 
separate financial statements are not available, the recipient may 
submit the financial statements of the consolidated group.)
    (3) The auditor must:
    (i) Not applicable;
    (ii) Obtain an understanding of internal controls and perform tests 
of internal controls over the DOE program consistent with the 
requirements of Sec.  910.514 Scope of audit;
    (iii) Perform procedures to determine whether the auditee has 
complied with Federal statutes, regulations, and the terms and 
conditions of DOE awards that could have a direct and material effect 
on the DOE program consistent with the requirements of Sec.  910.514 
Scope of audit;
    (iv) Follow up on prior audit findings, perform procedures to 
assess the reasonableness of the summary schedule of prior audit 
findings prepared by the auditee in accordance with the requirements of 
Sec.  910.511 Audit findings follow-up, and report, as a current year 
audit finding, when the auditor concludes that the summary schedule of 
prior audit findings materially misrepresents the status of any prior 
audit finding; and
    (v) Report any audit findings consistent with the requirements of 
Sec.  910.516 Audit findings.
    (4) The auditor's report(s) may be in the form of either combined 
or separate reports and may be organized differently from the manner 
presented in this section. The auditor's report(s) must state that the 
audit was conducted in accordance with this part and include the 
following:
    (i) An opinion (or disclaimer of opinion) as to whether the 
financial statement(s) (if available) of the DOE program is presented 
fairly in all material respects in accordance with the stated 
accounting policies;
    (ii) A report on internal control related to the DOE program, which 
must describe the scope of testing of internal control and the results 
of the tests;
    (iii) A report on compliance which includes an opinion (or 
disclaimer of opinion) as to whether the auditee complied with laws, 
regulations, and the terms and conditions of DOE awards which could 
have a direct and material effect on the DOE program; and
    (iv) A schedule of findings and questioned costs for the DOE 
program that includes a summary of the auditor's results relative to 
the DOE program in a format consistent with Sec.  910.515 Audit 
reporting, paragraph (d)(1) and findings and questioned costs 
consistent with the requirements of Sec.  910.515 Audit reporting, 
paragraph (d)(3).
    (c) Report submission for program-specific audits. (1) The audit 
must be completed and the reporting required by paragraph (c)(2) or (3) 
of this section submitted within the earlier of 30 calendar days after 
receipt of the auditor's report(s), or nine months after the end of the 
audit period, unless a different period is specified in a program-
specific audit guide. Unless restricted by Federal law or regulation, 
the auditee must make report copies available for public inspection. 
Auditees and auditors must ensure that their respective parts of the 
reporting package do not include protected personally identifiable 
information.
    (2) When a program-specific audit guide is available, the 
compliance audits must be submitted (along with audited financial 
statements if audited financial statements are available), to the 
appropriate DOE Contracting Officer as well as to the DOE Office of the 
Chief Financial Officer.
    (3) When a program-specific audit guide is not available, the 
reporting package for a program-specific audit must consist of, a 
summary schedule of prior audit findings, and a corrective action plan 
as described in paragraph (b)(2) of this section, and the auditor's 
report(s) described in paragraph (b)(4) of this section. The compliance 
audit must be submitted (along with audited financial statements if 
audited financial statements are available), to the appropriate DOE 
Contracting Officer as well as to the DOE Office of the Chief Financial 
Officer.
    (d) Other sections of this part may apply. Compliance audits are 
subject to:
    (1) Section 910.500 Purpose through Sec.  910.503 Relation to other 
audit requirements, paragraph (d);
    (2) Section 910.504 Frequency of audits through Sec.  910.506 Audit 
costs;
    (3) Section 910.508 Auditee responsibilities and Sec.  910.509 
Auditor selection;
    (4) Section 910.511 Audit findings follow-up;
    (5) Section 910.512 Report submission, paragraphs (e) through (h);
    (6) Section 910.513 Responsibilities;
    (7) Section 910.516 Audit findings and Sec.  910.517 Audit 
documentation;
    (8) Section 910.521 Management decision; and
    (9) Other referenced provisions of this part unless contrary to the 
provisions of this section, a program-specific audit guide, or program 
statutes and regulations.


Sec.  910.513   [Amended]

0
14. Section 910.513 is amended:
0
a. In paragraph (c) introductory text by removing ``2 CFR 200.210'' and 
adding in its place ``2 CFR 200.211''; and

[[Page 15322]]

0
b. In paragraph (c)(3)(iii) by removing ``2 CFR 200.25'' and adding in 
its place ``2 CFR 200.1,''.

0
15. Section 910.514 is revised to read as follows:


Sec.  910.514  Scope of audit.

    (a) General. The audit must be conducted in accordance with GAGAS. 
The audit must cover the entire operations of the auditee, or, at the 
option of the auditee, such audit must include a series of audits that 
cover departments, agencies, and other organizational units that 
expended or otherwise administered DOE awards during such audit period, 
provided that each such audit must encompass the schedule of 
expenditures of DOE awards for each such department, agency, and other 
organizational unit, which must be considered to be a for-profit 
entity. The financial statements (if available) and schedule of 
expenditures of DOE awards must be for the same audit period.
    (b) Financial statements. If financial statements are available, 
the auditor must determine whether the schedule of expenditures of DOE 
awards is stated fairly in all material respects in relation to the 
auditee's financial statements as a whole.
    (c) Internal control. (1) The compliance supplement provides 
guidance on internal controls over Federal programs based upon the 
guidance in Standards for Internal Control in the Federal Government 
issued by the Comptroller General of the United States and the Internal 
Control--Integrated Framework, issued by the Committee of Sponsoring 
Organizations of the Treadway Commission (COSO).
    (2) In addition to the requirements of GAGAS the auditor must 
perform procedures to obtain an understanding of internal control over 
DOE programs sufficient to plan the audit to support a low assessed 
level of control risk of noncompliance for major programs.
    (3) Except as provided in paragraph (c)(4) of this section, the 
auditor must:
    (i) Plan the testing of internal control over compliance to support 
a low assessed level of control risk for the assertions relevant to the 
compliance requirements; and
    (ii) Perform testing of internal control as planned in paragraph 
(c)(3)(i) of this section.
    (4) When internal control over some or all of the compliance 
requirements are likely to be ineffective in preventing or detecting 
noncompliance, the planning and performing of testing described in 
paragraph (c)(3) of this section are not required for those compliance 
requirements. However, the auditor must report a significant deficiency 
or material weakness in accordance with Sec.  910.516 Audit findings, 
assess the related control risk at the maximum, and consider whether 
additional compliance tests are required because of ineffective 
internal control.
    (d) Compliance. (1) In addition to the requirements of GAGAS, the 
auditor must determine whether the auditee has complied with Federal 
statutes, regulations, and the terms and conditions of Federal awards 
that may have a direct and material effect.
    (2) The principal compliance requirements applicable to most 
Federal programs and the compliance requirements of the largest Federal 
programs are included in the compliance supplement.
    (3) For the compliance requirements related to Federal programs 
contained in the compliance supplement, an audit of these compliance 
requirements will meet the requirements of this part. Where there have 
been changes to the compliance requirements and the changes are not 
reflected in the compliance supplement, the auditor must determine the 
current compliance requirements and modify the audit procedures 
accordingly. For those Federal programs not covered in the compliance 
supplement, the auditor should follow the compliance supplement's 
guidance for programs not included in the supplement.
    (4) The compliance testing must include tests of transactions and 
such other auditing procedures necessary to provide the auditor 
sufficient appropriate audit evidence to support an opinion on 
compliance.
    (e) Audit follow-up. The auditor must follow-up on prior audit 
findings, perform procedures to assess the reasonableness of the 
summary schedule of prior audit findings prepared by the auditee in 
accordance with Sec.  910.511 Audit findings follow-up paragraph (b), 
and report, as a current year audit finding, when the auditor concludes 
that the summary schedule of prior audit findings materially 
misrepresents the status of any prior audit finding. The auditor must 
perform audit follow-up procedures.
    (f) Not applicable.

0
16. Section 910.515 is revised to read as follows:


Sec.  910.515  Audit reporting.

    The auditor's report(s) may be in the form of either combined or 
separate reports and may be organized differently from the manner 
presented in this section. The auditor's report(s) must state that the 
audit was conducted in accordance with this part and include the 
following:
    (a) An opinion (or disclaimer of opinion) as to whether the 
financial statements (if available) are presented fairly in all 
material respects in accordance with generally accepted accounting 
principles and an opinion (or disclaimer of opinion) as to whether the 
schedule of expenditures of DOE awards is fairly stated in all material 
respects in relation to the financial statements (if available) as a 
whole.
    (b) A report on internal control over financial reporting and 
compliance with Federal statutes, regulations, and the terms and 
conditions of the DOE award, noncompliance with which could have a 
material effect on the financial statements. This report must describe 
the scope of testing of internal control and compliance and the results 
of the tests, and, where applicable, it will refer to the separate 
schedule of findings and questioned costs described in paragraph (d) of 
this section.
    (c) A report on compliance and report and internal control over 
compliance. This report must describe the scope of testing of internal 
control over compliance, include an opinion or modified opinion as to 
whether the auditee complied with Federal statutes, regulations, and 
the terms and conditions of DOE awards which could have a direct and 
material effect and refer to the separate schedule of findings and 
questioned costs described in paragraph (d) of this section.
    (d) A schedule of findings and questioned costs which must include 
the following three components:
    (1) A summary of the auditor's results, which must include:
    (i) The type of report the auditor issued (if applicable) on 
whether the financial statements (if available) audited were prepared 
in accordance with GAAP (i.e., unmodified opinion, qualified opinion, 
adverse opinion, or disclaimer of opinion);
    (ii) Where applicable, a statement about whether significant 
deficiencies or material weaknesses in internal control were disclosed 
by the audit of the financial statements (if available);
    (iii) A statement (if applicable) as to whether the audit disclosed 
any noncompliance that is material to the financial statements (if 
available) of the auditee;
    (iv) Where applicable, a statement about whether significant 
deficiencies or material weaknesses in internal control over major 
programs were disclosed by the audit;
    (v) The type of report the auditor issued on compliance (i.e., 
unmodified

[[Page 15323]]

opinion, qualified opinion, adverse opinion, or disclaimer of opinion);
    (vi) A statement as to whether the audit disclosed any audit 
findings that the auditor is required to report under Sec.  910.516 
Audit findings, paragraph (a);
    (vii) Not applicable.
    (viii) Not applicable.
    (ix) Not applicable.
    (2) Findings relating to the financial Statements (if available) 
which are required to be reported in accordance with GAGAS.
    (3) Findings and questioned costs for DOE awards which must include 
audit findings as defined in Sec.  910.516 Audit findings, paragraph 
(a).
    (i) Audit findings (e.g., internal control findings, compliance 
findings, questioned costs, or fraud) that relate to the same issue 
should be presented as a single audit finding.
    (ii) Audit findings that relate to both the financial statements 
(if available) and DOE awards, as reported under paragraphs (d)(2) and 
(3) of this section, respectively, should be reported in both sections 
of the schedule. However, the reporting in one section of the schedule 
may be in summary form with a reference to a detailed reporting in the 
other section of the schedule.
    (e) Nothing in this part precludes combining of the audit reporting 
required by this section with the reporting required by Sec.  910.512 
Report submission, paragraph (b), when allowed by GAGAS.

0
17. Section 910.519 is revised to read as follows:


Sec.  910.519  Criteria for Federal program risk.

    (a) General. The auditor's determination should be based on an 
overall evaluation of the risk of noncompliance occurring that could be 
material to the DOE program. The auditor must consider criteria, such 
as described in paragraphs (b), (c), and (d) of this section, to 
identify risk in Federal programs. Also, as part of the risk analysis, 
the auditor may wish to discuss a particular DOE program with auditee 
management and DOE.
    (b) Current and prior audit experience. (1) Weaknesses in internal 
control over DOE programs would indicate higher risk. Consideration 
should be given to the control environment over DOE programs and such 
factors as the expectation of management's adherence to Federal 
statutes, regulations, and the terms and conditions of DOE awards and 
the competence and experience of personnel who administer the DOE 
programs.
    (i) A DOE program administered under multiple internal control 
structures may have higher risk. The auditor must consider whether 
weaknesses are isolated in a single operating unit (e.g., one college 
campus) or pervasive throughout the entity.
    (ii) When significant parts of a DOE program are passed through to 
subrecipients, a weak system for monitoring subrecipients would 
indicate higher risk.
    (2) Prior audit findings would indicate higher risk, particularly 
when the situations identified in the audit findings could have a 
significant impact on a DOE program or have not been corrected.
    (3) DOE programs not recently audited as major programs may be of 
higher risk than Federal programs recently audited as major programs 
without audit findings.
    (c) Oversight exercised by DOE. (1) Oversight exercised by DOE 
could be used to assess risk. For example, recent monitoring or other 
reviews performed by an oversight entity that disclosed no significant 
problems would indicate lower risk, whereas monitoring that disclosed 
significant problems would indicate higher risk.
    (2) Federal agencies, with the concurrence of OMB, may identify 
Federal programs that are higher risk. OMB will provide this 
identification in the compliance supplement.
    (d) Inherent risk of the Federal program. (1) The nature of a 
Federal program may indicate risk. Consideration should be given to the 
complexity of the program and the extent to which the Federal program 
contracts for goods and services. For example, Federal programs that 
disburse funds through third party contracts or have eligibility 
criteria may be of higher risk. Federal programs primarily involving 
staff payroll costs may have high risk for noncompliance with 
requirements of 2 CFR 200.430 Compensation--personal services, but 
otherwise be at low risk.
    (2) The phase of a Federal program in its life cycle at the Federal 
agency may indicate risk. For example, a new Federal program with new 
or interim regulations may have higher risk than an established program 
with time-tested regulations. Also, significant changes in Federal 
programs, statutes, regulations, or the terms and conditions of Federal 
awards may increase risk.
    (3) The phase of a Federal program in its life cycle at the auditee 
may indicate risk. For example, during the first and last years that an 
auditee participates in a Federal program, the risk may be higher due 
to start-up or closeout of program activities and staff.
    (4) Programs with larger Federal awards expended would be of higher 
risk than programs with substantially smaller Federal awards expended.

0
18. Section 910.520 is revised to read as follows:


Sec.  910.520  Criteria for a low-risk auditee.

    An auditee that meets all of the following conditions for each of 
the preceding two audit periods may qualify as a low-risk auditee and 
be eligible for reduced audit coverage.
    (a) Compliance audits were performed on an annual basis in 
accordance with the provisions of this Subpart, including submitting 
the data collection form to DOE within the timeframe specified in Sec.  
910.512 Report submission. A for-profit entity that has biennial audits 
does not qualify as a low-risk auditee.
    (b) The auditor's opinion on whether the financial statements (if 
available) were prepared in accordance with GAAP, or a basis of 
accounting required by state law, and the auditor's in relation to 
opinion on the schedule of expenditures of DOE awards were unmodified.
    (c) There were no deficiencies in internal control which were 
identified as material weaknesses under the requirements of GAGAS.
    (d) The auditor did not report a substantial doubt about the 
auditee's ability to continue as a going concern.
    (e) None of the DOE programs had audit findings from any of the 
following in either of the preceding two audit periods:
    (1) Internal control deficiencies that were identified as material 
weaknesses in the auditor's report on internal control as required 
under Sec.  910.515 Audit reporting, paragraph (c);
    (2) Not applicable.
    (3) Not applicable.

[FR Doc. 2022-04240 Filed 3-17-22; 8:45 am]
BILLING CODE 6450-01-P