Rule2024-30636
Update and Relocation of the Department of Energy Technology Investment Agreement Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 3, 2025
Effective
January 3, 2025
Issuing agencies
Energy Department
Abstract
The Department of Energy (DOE or the Department) is issuing this interim final rule (IFR) to update, streamline, and relocate the policies, procedures, and provisions that are applicable to the award and administration of certain other transaction (OT) agreements awarded under DOE's OT authority provided in the Energy Policy Act of 2005's amendments to the Department of Energy Organization Act. DOE expects that the simplification of the implementing regulations will enable improved use OT Agreements beyond the Technology Investment Agreements (TIAs) contemplated in the original regulations. This IFR will promote more uniform application of this authority and the policies and provisions for the award and administration of it.
Full Text
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<title>Federal Register, Volume 90 Issue 2 (Friday, January 3, 2025)</title>
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[Federal Register Volume 90, Number 2 (Friday, January 3, 2025)]
[Rules and Regulations]
[Pages 189-199]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-30636]
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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. 90, No. 2 / Friday, January 3, 2025 / Rules
and Regulations
[[Page 189]]
DEPARTMENT OF ENERGY
2 CFR Part 930
10 CFR Part 603
RIN 1991-AC19
Update and Relocation of the Department of Energy Technology
Investment Agreement Regulations
AGENCY: U.S. Department of Energy.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Department of Energy (DOE or the Department) is issuing
this interim final rule (IFR) to update, streamline, and relocate the
policies, procedures, and provisions that are applicable to the award
and administration of certain other transaction (OT) agreements awarded
under DOE's OT authority provided in the Energy Policy Act of 2005's
amendments to the Department of Energy Organization Act. DOE expects
that the simplification of the implementing regulations will enable
improved use OT Agreements beyond the Technology Investment Agreements
(TIAs) contemplated in the original regulations. This IFR will promote
more uniform application of this authority and the policies and
provisions for the award and administration of it.
DATES: Effective January 3, 2025. DOE will accept comments, data, and
information regarding this IFR no later than March 4, 2025.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the
instructions in section III of this document, Public Participation, for
submitting comments. Alternatively, interested persons may submit
comments, identified by ``RIN 1991-AC19--2024 Other Transaction
Agreements'', by any of the following methods:
[ssquf] Email: <a href="/cdn-cgi/l/email-protection#3c73687d4e495059515d5755525b7c544d12585359125b534a"><span class="__cf_email__" data-cfemail="014e554073746d646c606a686f664169702f656e642f666e77">[email protected]</span></a>. Include ``RIN 1991-AC19--
2024 Other Transaction Agreements'' in the subject line of the message.
[ssquf] Postal Mail: U.S. Department of Energy, Office of
Acquisition Management, MA-611, 1000 Independence Avenue SW,
Washington, DC 20585. Include the markings ``RIN 1991-AC19 2024 Other
Transaction Agreements''. However, comments by email are encouraged.
Docket: The docket, which includes Federal Register notices,
comments, and other supporting documents/materials, is available for
review at <a href="http://www.regulations.gov">www.regulations.gov</a>. All documents in the docket are listed
in the <a href="http://www.regulations.gov">www.regulations.gov</a> index. However, some documents listed in the
index, such as those containing information that is exempt from public
disclosure, may not be publicly available.
The docket web page can be found at the <a href="http://www.regulations.gov">www.regulations.gov</a> web
page associated with RIN 1991-AC19. The docket web page contains simple
instructions on how to access all documents, including public comments,
in the docket. See section III of this document, Public Participation,
for information on how to submit comments through <a href="http://www.regulations.gov">www.regulations.gov</a>.
Please put ``RIN 1991-AC19 2024 Other Transaction Agreements'' in the
subject line when sending an email.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Bonnell, U.S. Department
of Energy, Office of Acquisition Management by email at
<a href="/cdn-cgi/l/email-protection#4b392228232a392f65292425252e27270b233a652f242e652c243d"><span class="__cf_email__" data-cfemail="62100b010a0310064c000d0c0c070e0e220a134c060d074c050d14">[email protected]</span></a> or (301) 922-7101.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Discussion
III. Section by Section Analysis
IV. Public Participation
V. Procedural Requirements
A. Executive Orders 12866, 13563 and 14094
B. Administrative Procedure Act
C. Regulatory Flexibility Act
D. Paperwork Reduction Act
E. National Environmental Policy Act of 1969 (NEPA)
F. Executive Order 13132
G. Executive Order 12988
H. Executive Order 13175
I. Unfunded Mandates Reform Act of 1995
J. Treasury and General Government Appropriations Act, 2001
K. Executive Order 13211
L. Congressional Notification
VI. Approval by the Office of the Secretary of Energy
I. Background
DOE's OT authority is provided in sections 646(a) and (g) of the
Department of Energy Organization Act (Pub L. 95-91, as amended) (42
U.S.C. 7101 et seq.). Section 646(a) (42 U.S.C. 7256(a)) is a general
authority for DOE to enter into contracts, leases, cooperative
agreements or ``other similar transactions,'' and to make payments to
public or private entities as the Secretary ``may deem to be necessary
or appropriate to carry out functions now or hereafter vested in the
Secretary.'' Section 646(g) (42 U.S.C. 7256(g)) was added to the DOE
Organization Act by the Energy Policy Act of 2005 (Pub. L. 109-58) as
an OT authority directed specifically to research, development, and
demonstration (RD&D).
The authority provided under 42 U.S.C. 7256(g) provides that the
Secretary of Energy has the same authority to enter into transactions
as the Secretary of Defense under 10 U.S.C. 2371 in carrying out RD&D
projects.\1\ This authority includes statutory limits on its use, but
also authorizes increased flexibilities not available under subsection
(a) ``General Authority'' related to intellectual property and data
protection.
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\1\ 10 U.S.C. 2371 was transferred to 10 U.S.C. 4021 in 2021
(Pub. L. 116-283, as amended by Pub. L. 117-81).
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Section 646(g)(6) of the Energy Policy Act (42 U.S.C. 7256(g)(6))
required DOE to publish guidelines for transactions under subsection
(g) not later than 90 days after the enactment of the statute. DOE
published an interim final rule (70 FR 69250) on November 15, 2005, and
a final rule on May 9, 2006 (71 FR 27158). At least in part because of
this limited statutory timeframe, the original regulations at 10 CFR
part 603 were largely modeled on the applicable DOD Technology
Investment Agreements (TIAs) and established TIAs as the mechanism for
awarding OT agreements under section 7256(g). The purposes of a TIA are
to reduce barriers that prevent some entities from participating in
DOE's RD&D programs and broaden the technology base available to meet
DOE mission requirements. However, TIAs
[[Page 190]]
are just one implementation of OTs available under 42 U.S.C. 7256(g).
OT agreements broadly, including TIAs, are more flexible than
standard procurement and financial assistance instruments. They allow
the DOE to negotiate commercial terms that would be otherwise
unavailable in a procurement or financial assistance instrument in a
manner that is more familiar to many commercial entities. Thus, unless
otherwise noted in this regulation, the laws and regulations applicable
to procurement and financial assistance instruments do not apply. This
increased flexibility is used to: (1) strengthen our nation's economic
and energy security; (2) promote scientific and technological
innovation; (3) reduce barriers to participation in RD&D programs by
nontraditional government performers and entities, including small
businesses and disadvantaged entities; (4) promote new relationships
among performers in the U.S. technology base; (5) stimulate performers
to develop and use new business practices and disseminate best
practices throughout the U.S. technology base; or (6) stimulate RD&D of
energy-related technologies, systems, and processes for use by Federal
agencies and the public.
In this IFR, DOE is removing miscellaneous references to outdated
regulations from the provisions governing the use of OT agreements. DOE
is aligning the revised provisions with the authorizing statute and
improves the clarity, structure, organization, and administrative
efficiency of the provisions to make them applicable to 42 U.S.C.
7256(g) OT agreements beyond the TIAs contemplated in the original
regulations. In conjunction with the revisions under this IFR, DOE
published a policy guide, ``Department of Energy Guide to Other
Transactions'' that includes the internal DOE processes and specific
functions and responsibilities of DOE staff from the provisions removed
from 10 CFR part 603.
II. Discussion
While some mechanisms (procurement and financial assistance) can
meet many of the Department's missions, certain programs require more
innovation for successful implementation and would benefit from the
flexibility that OT agreements can provide. To provide the efficiencies
in the award and administration of OT agreements needed to achieve
DOE's mission, there is a need to remove references to outdated
regulations, internal processes, and obsolete and unnecessarily
restrictive language from the provisions governing the use of OT
agreements. This IFR revises existing OTA regulatory provisions and
aligns them with the authorizing statute to improve the clarity,
structure, organization, and administrative efficiency and to make them
applicable to all OT agreements awarded under DOE's authority at 42
U.S.C. 7256(g), not just TIAs. DOE is removing in its entirety and
reserving 10 CFR part 603, relocating it in 2 CFR part 930, and
renaming it ``Other Transaction Agreements.'' DOE is removing the
provisions of 10 CFR part 603 that are: specific to internal DOE
processes or procedures; specific to the functions and responsibilities
of DOE staff; and unnecessarily restrictive for use in all OT
agreements.
DOE is relocating and revising the remaining provisions of 10 CFR
part 603 and adding a deviation provision to 2 CFR part 930 that,
consistent with other regulations and policies, provides DOE the
authority to deviate from the issuance or use of any policy, procedure,
solicitation provision, article, method, or practice of conducting
actions of any kind at any stage of the OT award process or
administration period that is inconsistent with the OT regulations.
III. Section by Section Analysis
The following discussion details specific revisions made in this
IFR by listing sections from current 10 CFR part 603 that were not
included in the new 2 CFR part 930, discussing entirely new additions
to 2 CFR part 930, and explaining changes to sections of the current 10
CFR part 603 that were retained in new 2 CFR part 930.
Sec. 930.115 Deviation Authority
DOE is adding a new provision at 2 CFR 930.115 that is
substantially similar to provisions already present and widely used in
other DOE regulations to address agency deviations from the
regulations. The new provision entitled ``Deviation authority'' gives
authority to the cognizant Senior Procurement Executive (SPE), as
defined by 41 U.S.C. 1702(c), for DOE or National Nuclear Security
Administration to approve the issuance or use of a policy, procedure,
provision, article, method, or practice of conducting actions of any
kind at any stage of the award process or administration period that is
inconsistent with part 930. The new language also requires a program
office seeking a deviation to submit a request to the SPE justifying
the deviation, and creates a process whereby a deviation from the
policy, procedure, provision, article, method, or practice may be
requested and approved by the cognizant DOE official.
Sections Removed
DOE is removing provisions from 10 CFR part 603 that pertain to
internal processes and procedures or that describe the function or
responsibility of DOE in its decisions to award and administer OT
agreements, including TIAs. The information provided in the following
provisions has been included in internal guidance and training
materials created for DOE personnel including DOE's Guide to Other
Transactions.
<bullet> Sec. 603.200: Contracting Officer Responsibilities
<bullet> Sec. 603.225: Benefits of Using a TIA
<bullet> Sec. 603.300: Difference Between an Expenditure-Based and a
Fixed-Support TIA
<bullet> Sec. 603.305: Use of a Fixed-Support TIA
<bullet> Sec. 603.310: Use of an Expenditure-Based TIA
<bullet> Sec. 603.315: Advantages of a Fixed-Support TIA
<bullet> Sec. 603.405: Announcement Format
<bullet> Sec. 603.410: Announcement Content
<bullet> Sec. 603.500: Pre-Award Business Evaluation
<bullet> Sec. 603.505: Program Resources
<bullet> Sec. 603.510: Recipient Qualifications
<bullet> Sec. 603.515: Qualification of a Consortium
<bullet> Sec. 603.520: Reasonableness of a Total Project Funding
<bullet> Sec. 603.540: Acceptability of Fully Depreciated Real
Property or Equipment
<bullet> Sec. 603.545: Acceptability of Costs of Prior RD&D
<bullet> Sec. 603.550: Acceptability of Intellectual Property
<bullet> Sec. 603.555: Value of Other Contributions
<bullet> Sec. 603.560: Estimate of Project Expenditures
<bullet> Sec. 603.565: Use of a Hybrid Instrument
<bullet> Sec. 603.570: Determining Milestone Payment Amounts
<bullet> Sec. 603.575: Repayment of Federal Cost Share
<bullet> Sec. 603.600: Administrative Matters
<bullet> Sec. 603.605: General Policy
<bullet> Sec. 603.610: Flow Down Requirements
<bullet> Sec. 603.630: Use Federally Approved Indirect Cost Rates for
For-Profit Firms
<bullet> Sec. 603.635: Cost Principles for Nonprofit Participants
<bullet> Sec. 603.650: Designation of Auditor for For-Profit
Participants
<bullet> Sec. 603.670: Flow Down Audit Requirements to Subrecipients
<bullet> Sec. 603.675: Reporting Use of IPA for Subawards
<bullet> Sec. 603.685: Management of Real Property and Equipment by
Nonprofit Firms
[[Page 191]]
<bullet> Sec. 603.690: Requirements for Federally-Owned Property
<bullet> Sec. 603.695: Requirements for Supplies
<bullet> Sec. 603.800: Scope
<bullet> Sec. 603.810: Method and Frequency of Payment Requests
<bullet> Sec. 603.815: Withholding Payments
<bullet> Sec. 603.820: Interest on Advance Payments
<bullet> Sec. 603.835: Program Income Requirements
<bullet> Sec. 603.850: Marking of Data
<bullet> Sec. 603.855: Protected Data
<bullet> Sec. 603.870: Marking of Documents Related to Inventions
<bullet> Sec. 603.880: Reports Requirements
<bullet> Sec. 603.885: Updated Program Plans and Budgets
<bullet> Sec. 603.890: Final Performance Report
<bullet> Sec. 603.895: Protection of Information in Programmatic
Reports
<bullet> Sec. 603.900: Receipt of Final Performance Report
<bullet> Sec. 603.910: Access to a For-Profit Participant's Records
<bullet> Sec. 603.1000: Contracting Officer's Responsibilities at Time
of Award
<bullet> Sec. 603.1005: General Responsibilities
<bullet> Sec. 603.1010: Substantive Issues
<bullet> Sec. 603.1015: Execution
<bullet> Sec. 603.1020: File Documents
<bullet> Sec. 603.1100: Contracting Officer's Post-Award
Responsibilities
<bullet> Sec. 603.1105: Advance Payments or Payable Milestones
<bullet> Sec. 603.1110: Other Payment Responsibilities
<bullet> Sec. 603.1120: Award-Specific Audits
<bullet> Sec. 603.1200-1340: Definitions and Following Terms
<bullet> Appendix A Applicable Federal Statutes, Executive Orders, and
Government-wide Regulations
<bullet> Appendix B Flow Down Requirements for Purchases of Goods and
Services
Sections Revised and Renumbered
DOE is revising the following provisions to update, clarify,
streamline, or eliminate coverage that is unclear, obsolete, or
unnecessarily duplicates the internal guidance and roles and
responsibilities of DOE staff where appropriate. The revisions do not
substantially change the existing requirements or how DOE and DOE
performers adhere to the OT regulations.
<bullet> Sec. 603.100 Purpose has been revised and renumbered to
Sec. 930.100 Purpose.
<bullet> Sec. 603.105 Description has been revised and renumbered
to Sec. 930.400 Use of Technology Investment Agreements (TIAs).
<bullet> Sec. 603.110 Use of TIAs has been revised and renumbered
to Sec. 930.400 Use of Technology Investment Agreements (TIAs).
<bullet> Sec. 603.115 Approval Requirements has been revised and
renumbered to Sec. 930.110 Approval Requirements.
<bullet> Sec. 603.120 Contracting Officer Warrant Requirements has
been revised and included in Sec. 930.110 Approval Requirements.
<bullet> Sec. 603.125 Applicability of Other Parts of the DOE
Assistance Regulations has been revised and renumbered to Sec. 930.120
Nonprocurement debarment and suspension.
<bullet> Sec. 603.205 Nature of the Project has been revised and
renumbered to Sec. 930.105 Other transaction (OT) agreements.
<bullet> Sec. 603.210 Recipients has been revised and renumbered
to Sec. 930.405 TIA awardees.
<bullet> Sec. 603.215 Recipient's Commitment and Cost Sharing has
been revised and renumbered to Sec. 930. 125 Cost Sharing.
<bullet> Sec. 603.220 Government Participation has been revised
and renumbered to Sec. 930.415 Government Participation.
<bullet> Sec. 603.230 Fee or Profit has been revised and
renumbered to Sec. 930. 130 Fee or Profit.
<bullet> Sec. 603.400 Competitive Procedures has been revised and
renumbered to Sec. 930.135 Competition.
<bullet> Sec. 603.415 Cost Sharing has been revised and included
in Sec. 930.125 Cost Sharing.
<bullet> Sec. 603.420 Disclosure of Information has been revised
and renumbered to Sec. 930.140 Disclosure of Information.
<bullet> Sec. 603.525 Value & Reasonableness of the Recipient's
Cost Sharing Contribution has been revised and included in Sec.
930.125 Cost Sharing.
<bullet> Sec. 603.530 Acceptable Cost Sharing has been revised and
included in Sec. 930.125 Cost Sharing.
<bullet> Sec. 603.535 Value of Proposed Real Property or Equipment
has been revised and renumbered to Sec. 930.220 Real property and
equipment.
<bullet> Sec. 603.615 Financial Management Standards for For-
Profit Firms has been revised and renumbered to Sec. 930.205 Financial
Management Standards.
<bullet> Sec. 603.620 Financial Management Standards for Nonprofit
Participants has been revised and renumbered to Sec. 930.205 Financial
Management Standards.
<bullet> Sec. 603.625 Cost Principles or Standards Applicable to
For-Profit Firms has been revised and renumbered to Sec. 930.210 Cost
Principles and Standards.
<bullet> Sec. 603.640 Audits of For-Profit Firms has been revised
and included in Sec. 930.215 Audit requirements.
<bullet> Sec. 603.645 Periodic Audits and Award-Specific Audits of
For-Profit Participants has been revised and included in Sec. 930.215
Audit requirements.
<bullet> Sec. 603.655 Frequency of Periodic Audits of For-Profit
Participants has been revised and included in Sec. 930.215 Audit
requirements.
<bullet> Sec. 603.660 Other Audit Requirements has been revised
and included in Sec. 930.215 Audit requirements.
<bullet> Sec. 603.665 Periodic Audits of Nonprofit Participants
has been revised and included in Sec. 930.215 Audit requirements.
<bullet> Sec. 603.680 Purchase of real property and equipment by
for-profit firms has been revised and included in Sec. 930.410.
<bullet> Sec. 603.700 Standards for Purchasing Systems of For-
Profit Firms and Sec. 603.705 Standards for Purchasing Systems of
Nonprofit Organizations have been revised and included in Sec. 930.225
Purchasing system standards.
<bullet> Sec. 603.805 Payment Methods has been revised and
renumbered to Sec. 930.300 Payment Methods.
<bullet> Sec. 603.825 Government Approval of Change in Plans has
been revised and renumbered to Sec. 930.305 Government Approval of
Change in Plans.
<bullet> Sec. 603.830 Pre-Award Costs has been revised and
renumbered to Sec. 930.310 Pre-Award Costs.
<bullet> Sec. 603.840 Data and Intellectual Property Rights has
been revised and renumbered to Sec. 930.315 Negotiating Data and
Patent Rights.
<bullet> Sec. 603.845 Data Rights Requirements has been revised
and renumbered to Sec. 930.320 Data Rights.
<bullet> Sec. 603.860 Rights to Inventions has been revised and
renumbered to Sec. 930.325 Rights in Inventions.
<bullet> Sec. 603.865 March-In Rights has been revised and
included in Sec. 930.325 Rights in Inventions.
<bullet> Sec. 603.875 Foreign Access to Technology and U.S.
Competitiveness Provisions has been revised and renumbered to Sec.
930.330 Research Technology and Security and U.S. Competitiveness
Provisions.
<bullet> Sec. 603.905 Record Retention Requirements has been
revised and renumbered to Sec. 930.335: Record Retention Requirements.
<bullet> Sec. 603.915 Access to a Nonprofit Participant's Records
has been revised and renumbered to Sec. 930.340: Access to Records.
<bullet> Sec. 603.920 Termination and Enforcement Requirements has
been revised and renumbered to Sec. 930.345 Noncompliance and
Termination Requirements.
[[Page 192]]
<bullet> Sec. 603.1115 Single Audits has been revised and included
in Sec. 930.215 Audit requirements.
IV. Public Participation
DOE will accept comments, data, and information regarding this IFR
on or before the date provided in the DATES section at the beginning of
this IFR. Interested parties may submit comments, data, and other
information using any of the methods described in the ADDRESSES section
at the beginning of this document.
Submitting comments via <a href="http://www.regulations.gov">www.regulations.gov</a>. The
<a href="http://www.regulations.gov">www.regulations.gov</a> web page will require you to provide your name and
contact information. Your contact information will not be publicly
viewable except for your first and last names, organization name (if
any), and submitter representative name (if any). If your comment is
not processed properly because of technical difficulties, DOE will use
this information to contact you. If DOE cannot read your comment due to
technical difficulties and cannot contact you for clarification, DOE
may not be able to consider your comment.
However, your contact information will be publicly viewable if you
include it in the comment itself or in any documents attached to your
comment. Any information that you do not want to be publicly viewable
should not be included in your comment, nor in any document attached to
your comment. Otherwise, persons viewing comments will see only first
and last names, organization names, correspondence containing comments,
and any documents submitted with the comments.
Do not submit to <a href="http://www.regulations.gov">www.regulations.gov</a> information the disclosure of
which is restricted by statute, such as trade secrets and commercial or
financial information (hereinafter referred to as Confidential Business
Information (``CBI'')). Comments submitted through <a href="http://www.regulations.gov">www.regulations.gov</a>
cannot be claimed as CBI. Comments received through the website will
waive any CBI claims for the information submitted. For information on
submitting CBI, see the Confidential Business Information section
below.
DOE processes submissions made through <a href="http://www.regulations.gov">www.regulations.gov</a> before
posting. Normally, comments will be posted within a few days of being
submitted. However, if large volumes of comments are being processed
simultaneously, your comment may not be viewable for up to several
weeks. Please keep the comment tracking number that <a href="http://www.regulations.gov">www.regulations.gov</a>
provides after you have successfully uploaded your comment.
Submitting comments via email or postal mail. Comments and
documents submitted via email or postal mail also will be posted to
<a href="http://www.regulations.gov">www.regulations.gov</a>. If you do not want your personal contact
information to be publicly viewable, do not include it in your comment
or any accompanying documents. Instead, provide your contact
information in a cover letter. Include your first and last names, email
address, telephone number, and optional mailing address. The cover
letter will not be publicly viewable as long as it does not include any
comments.
Include contact information each time you submit comments, data,
documents, and other information to DOE. If you submit via postal mail,
please provide all items on a CD, if feasible, in which case it is not
necessary to submit printed copies. No telefacsimiles (faxes) will be
accepted.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are written in English, and that are free of any defects or viruses.
Documents should not contain special characters or any form of
encryption and, if possible, they should carry the electronic signature
of the author.
Confidential Business Information. Pursuant to 10 CFR 1004.11, any
person submitting information that he or she believes to be
confidential and exempt by law from public disclosure should submit via
email or postal mail two well-marked copies: One copy of the document
marked ``confidential'' including all the information believed to be
confidential, and one copy of the document marked ``non-confidential''
that deletes the information believed to be confidential. Submit these
documents via email or on a CD, if feasible. DOE will make its own
determination about the confidential status of the information and will
treat it according to its determination. It is DOE's policy that all
comments, including any personal information provided in the comments,
may be included in the public docket, without change and as received,
except for information deemed to be exempt from public disclosure.
V. Procedural Requirements
A. Executive Orders 12866, 13563, and 14094
Executive Order (E.O.) 12866, ``Regulatory Planning and Review,''
58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by E.O.
13563, ``Improving Regulation and Regulatory Review,'' 76 FR 3821 (Jan.
21, 2011) and amended by E.O. 14094, ``Modernizing Regulatory Review,''
88 FR 21879 (April 11, 2023), requires agencies, to the extent
permitted by law, to (1) propose or adopt a regulation only upon a
reasoned determination that its benefits justify its costs (recognizing
that some benefits and costs are difficult to quantify); (2) tailor
regulations to impose the least burden on society, consistent with
obtaining regulatory objectives, taking into account, among other
things, and to the extent practicable, the costs of cumulative
regulations; (3) select, in choosing among alternative regulatory
approaches, those approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity); (4) to the extent
feasible, specify performance objectives, rather than specifying the
behavior or manner of compliance that regulated entities must adopt;
and (5) identify and assess available alternatives to direct
regulation, including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or providing
information upon which choices can be made by the public.
DOE emphasizes as well that Executive Order 13563 requires agencies
to use the best available techniques to quantify anticipated present
and future benefits and costs as accurately as possible. In its
guidance, the Office of Information and Regulatory Affairs (OIRA) has
emphasized that such techniques may include identifying changing future
compliance costs that might result from technological innovation or
anticipated behavioral changes. For the reasons stated in the preamble,
this regulatory action is consistent with these principles.
Section 6(a) of E.O. 12866 also requires agencies to submit
``significant regulatory actions''' to OIRA for review. OIRA has
determined that this regulatory action does not constitute a
``significant regulatory action'' under Executive Order 12866.
Accordingly, this action is not subject to review under that Executive
Order by OIRA.
Consistent with Executive Orders 12866, 13563 and 14094, DOE issues
this IFR only on a reasoned determination that the benefits of the rule
justify its costs, and, in choosing among alternative regulatory
approaches, DOE has selected those approaches that maximize net
benefits.
[[Page 193]]
In this IFR, DOE made a broad but largely procedural revision of its
other transaction regulation to update and streamline the policies,
procedures, and provisions that are currently applicable to its other
transaction agreements.
The IFR updates, clarifies, or eliminates coverage that is unclear,
obsolete, or unnecessarily duplicates the internal guidance and roles
and responsibilities of Federal staff; streamlines the coverage's
policies and performer procedures where appropriate; and adds a new
provision in order to provide the standard departmental deviation
authority provision language. The IFR includes several minor provision
revisions, none of which are substantial and in total will have
negligible impact on DOE's operations, its performers, or the economy.
The revisions do not in any specific case, or in total, substantially
change the existing requirements under the existing OT regulations or
how DOE and DOE performers adhere to the OT regulations. The IFR does
not generate any additional costs.
Finally, the IFR results in benefits to the public. Because the OT
regulation has not had a comprehensive update in years, it contains
outdated and duplicative content. Additionally, it has citations to
outdated regulations and contains sections that are more appropriate
for internal procedures and policies. The IFR streamlines the OT
regulations, make it easier to read, and reflects current practice and
requirements.
B. Administrative Procedure Act
The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,
generally requires public notice and an opportunity for comment before
a rule becomes effective. Section 553(b) of the APA, however, exempts
from the APA's notice and comment procedures rulemakings that involve
``rules of agency organization, procedure, or practice.'' This
exemption is applicable for rules that are primarily directed toward
improving the efficient and effective operations of an agency. Mendoza
v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014) (internal citations and
quotations omitted). As a rulemaking relating to policies, procedures,
and provisions that are applicable to the award and administration of
certain OT agreements awarded under DOE's OT authority, DOE has
determined that this rulemaking is procedural and satisfies the
exemption. Therefore, notice of proposed rulemaking (and comment
thereon) is not required for the removal and reservation of 10 CFR part
603 and issuance of new 2 CFR part 930 in this IFR.
Although this interim final rule is effective immediately, comments
are solicited from interested members of the public on all aspects of
the interim final rule. The Department intends to issue a final rule
following receipt and review of comments in response to the interim
final rule.
C. 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. As discussed
previously, DOE has determined that prior notice and opportunity for
public comment is unnecessary under the APA. 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 interim final rule. See 5 U.S.C. 601(2), 603(a).
D. Paperwork Reduction Act of 1995
This regulatory action does not impose any additional reporting or
recordkeeping requirements subject to approval under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
E. National Environmental Policy Act of 1969
DOE has analyzed this final rule in accordance with NEPA and DOE's
NEPA implementing regulations (10 CFR part 1021). DOE has determined
that this final rule is covered under the categorical exclusion located
at 10 CFR part 1021, subpart D, appendix A, Categorical Exclusion A5
because this final rule revises existing regulations at 10 CFR part
603. The changes update and clarify OT regulations. DOE has considered
whether this action would result in extraordinary circumstances that
would warrant preparation of an Environmental Assessment or EIS and has
determined that no such extraordinary circumstances exist. Therefore,
DOE has determined that this rulemaking does not require an
Environmental Assessment or an EIS.
F. 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 the IFR and has
determined that it does not preempt State law and does not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
G. 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; (3) provide a clear legal standard
for affected conduct rather than a general standard; and (4) 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 sections 3(a) and 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 IFR meets the relevant standards of Executive
Order 12988.
H. Executive Order 13175
Under Executive Order 13175, ``Consultation and Coordination with
Indian Tribal Governments,'' 65 FR 67249 (Nov. 6, 2000), DOE may not
issue a discretionary rule that has Tribal implications or that imposes
substantial direct compliance costs on Indian Tribal governments. DOE
has determined that this IFR will not have such effects and has
concluded that Executive Order 13175 does not apply to this IFR.
[[Page 194]]
I. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires Federal agencies to examine closely the impacts of regulatory
actions on State, local, Tribal governments. Subsection 101(5) of title
I of that law defines a Federal intergovernmental mandate to include a
regulation that would impose upon State, local, or Tribal governments
an enforceable duty, except a condition of Federal assistance or a duty
arising from participating in a voluntary Federal program. Title II of
that law requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments, in the
aggregate, or the private sector, other than to the extent such actions
merely incorporate requirements specifically set forth in a statute.
Section 202 of the title requires a Federal agency to perform a
detailed assessment of the anticipated costs and benefits of any rule
that includes a Federal mandate which may result in costs to State,
local, or Tribal governments, or the private sector, of $100 million or
more in any one year (adjusted annually for inflation). 2 U.S.C.
1532(a) and (b). Section 204 of that title requires each agency that
proposed a rule containing a significant Federal intergovernmental
mandate to develop an effective process for obtaining meaningful and
timely input from elected officers of State, local, and Tribal
governments. 2 U.S.C. 1534. This IFR amends the TIA regulations to
provide the guidance and procedures to awarding and administering Other
Transaction agreements. The IFR does not result in the expenditure by
State, local, and Tribal governments, in aggregate, or by the private
sector of $100 million or more in any one year. Accordingly, no
assessment or analysis is required under the Unfunded Mandates Reform
Act of 1995.
J. Treasury and General Government Appropriations Act, 2001
The Treasury and General Government Appropriations Act, 2001, 44
U.S.C. 3516 note, provides for Federal agencies to review most
disseminations of information to the public under implementing
guidelines established by each agency pursuant to general guidelines
issued by OMB. OMB's guidelines were published at 67 FR 8452 (February
22, 2002), and DOE's guidelines were published at 67 FR 62446 (October
7, 2002).
DOE has reviewed the IFR under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those
guidelines.
K. 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
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 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 IFR does not have a significant adverse effect on the supply,
distribution, or use of energy and is therefore not a significant
energy action. Accordingly, DOE has not prepared a Statement of Energy
Effects.
L. Congressional Notification
As required by 5 U.S.C. 801, DOE will submit to Congress a report
regarding the issuance of this interim final rule prior to the
effective date set forth at the outset of this interim final rule. The
report will state that it has been determined that this interim final
rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).
IV. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this Interim
final rule; request for comments.
List of Subjects
2 CFR Part 930
Accounting, Administrative practice and procedure, Federal
financial assistance, Grant programs, Reporting and recordkeeping
requirements, Technology investments.
10 CFR Part 603
Accounting, Administrative practice and procedure, Federal
financial assistance, Grant programs, Reporting and recordkeeping
requirements, Technology investments.
Signing Authority
This document of the Department of Energy was signed on December
16, 2024, by William J. Quigley, Deputy Associate Administrator,
Partnership and Acquisition Services, National Nuclear Security
Administration, pursuant to delegated authority from the Administrator,
National Nuclear Security Administration, and Berta L. Schreiber,
Director, Office of Acquisition Management, 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 December 18, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE amends 2 CFR chapter IX
and 10 CFR chapter II as follows:
Title 2
0
1. Part 930 is added to read as follows:
PART 930--OTHER TRANSACTION AGREEMENTS
Subpart A--General
Sec.
930.100 Purpose.
930.105 Other transaction (OT) agreements.
930.110 Approval requirements.
930.115 Deviation authority.
930.120 Nonprocurement debarment and suspension.
930.125 Cost sharing.
930.130 Fee or profit.
930.135 Competition.
930.140 Disclosure of information.
Subpart B--Pre-Award Business Evaluation
930.200 Scope.
930.205 Financial management standards.
930.210 Cost principles and standards.
930.215 Audit requirements.
930.220 Real property and equipment.
930.225 Purchasing systems standards.
Subpart C--Award Terms Related to Other Administrative Matters
930.300 Payment methods.
930.305 Government approval of changes in plans.
930.310 Pre-award costs.
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930.315 Negotiating data and patent rights.
930.320 Data rights.
930.325 Rights in inventions.
930.330 Research and technology security and U.S. manufacturing and
competitive requirements.
930.335 Record retention requirements.
930.340 Access to records.
930.345 Noncompliance and termination requirements.
Subpart D--Appropriate Use of Technology Investment Agreements
930.400 Use of Technology Investment Agreements (TIAs).
930.405 TIA awardees.
930.410 Purchase of real property and equipment by for-profit firms.
930.415 Government participation.
Authority: 42 U.S.C. 7256(g).
Subpart A--General
Sec. 930.100 Purpose.
This part establishes uniform policies for the award and
administration of other transaction agreements for research,
development, and demonstration projects awarded under the Department of
Energy's ``Additional Authorities'' at section 646(g) of the Department
of Energy Organization Act, Public Law 95-91, as amended (42 U.S.C.
7256(g)).
Sec. 930.105 Other transaction (OT) agreements.
For purposes of this part, An other transaction (OT) agreement
means any agreement, including technology investment agreement (TIA)
between the Department of Energy and/or the National Nuclear Security
Administration and a non-Federal entity for the principal purpose of
carrying out an research, development, and demonstration project for
which the use of a Federal procurement contract, grant, or cooperative
agreement is not feasible or appropriate. The OT agreement must comply
with the regulations set forth in this part. Additional requirements
for TIAs are set forth in subpart D of this part.
Sec. 930.110 Approval requirements.
(a)(1) An officer of the Department of Energy (DOE) who has been
appointed by the President with the advice and consent of the Senate
and who has been delegated the authority from the Secretary must
approve the use of other transaction (OT) authority and may perform
other functions of the Secretary as set forth under 42 U.S.C. 7256(g).
This delegated authority may not be redelegated.
(2) In addition, the cognizant Senior Procurement Executive (SPE),
as defined by 41 U.S.C. 1702(c), (or designee) must concur on the award
of any OT agreement.
(3) The Agreements Officer (AO) is the cognizant warranted DOE or
National Nuclear Security Administration official authorized to execute
and administer OT agreements.
(b) Deviation from the requirements in paragraph (a) of this
section is not permitted.
Sec. 930.115 Deviation authority.
(a) Deviation. A deviation from this part is defined as the
issuance or use of a policy, procedure, solicitation provision,
article, method, or practice of conducting actions of any kind at any
stage of the award process or administration period that is
inconsistent with this part. Deviations may affect one or more than one
other transaction (OT) agreements.
(b) Request for deviation. Requests for deviation(s) shall be
submitted by the Agreements Officer, meaning the cognizant warranted
Department of Energy or National Nuclear Security Administration
official authorized to execute and administer OT agreements, to the
cognizant Senior Procurement Executive, as defined by 41 U.S.C.
1702(c), for approval. Requests shall cite the specific section from
which it is desired to deviate, shall set forth the nature of the
proposed deviation(s), and shall give the reasons for the action
requested.
Sec. 930.120 Nonprocurement debarment and suspension.
The Nonprocurement debarment and suspension requirements in 2 CFR
part 180, as adopted and supplemented by 2 CFR part 901, are applicable
to all other transaction agreements.
Sec. 930.125 Cost sharing.
(a) Cost share is required as follows:
(1) In accordance with 42 U.S.C. 7256(g)(1), to the maximum extent
practicable, the awardee must provide at least half of the costs of the
project;
(2) In accordance with cost share requirements in section 988 of
Energy Policy Act of 2005 (EPAct 2005), Public Law 109-58, as amended
(42 U.S.C. 16352), for funded research, development, demonstration, or
commercial application activities; and
(3) In accordance with any other applicable statutory cost share
requirements.
(b) All awardee cost share or contributions, including cash and
third-party in-kind contributions, must meet all of the following
criteria:
(1) Are verifiable from the awardee's records;
(2) Are not included as contributions for any other Federal award;
(3) Are necessary and reasonable for accomplishment of the award or
project objectives;
(4) Are allowable under the appropriate cost principles;
(5) Are not paid or provided by the Federal Government under
another Federal award (Federal funds or property), except where the
Federal statute authorizing a program specifically provides that
Federal funds or property made available for such program can be
applied to cost sharing requirements of other Federal programs or
awards;
(6) Are not revenues or royalties from the prospective operation of
an activity beyond the time considered in the award;
(7) Are not proceeds from the prospective sale of an asset of an
activity;
(8) Are valued:
(i) In accordance with the appropriate cost principles;
(ii) Using the usual accounting policies of the awardee; and
(iii) Not to exceed the fair market value (of donated property,
equipment, or other capital assets) or the fair rental charge (of
leased land, space, or equipment);
(9) Are provided for in the budget approved by Department of Energy
(DOE); and
(10) Conform to other provisions of this part, as applicable.
(c) DOE may reduce or eliminate the cost share requirement imposed
by 42 U.S.C. 7256(g)(1) where the Agreements Officer (AO), meaning the
cognizant warranted DOE or National Nuclear Security Administration
official authorized to execute and administer other transaction
agreements, determines the cost sharing is impracticable in a given
case, unless there is a statutory requirement for cost sharing that
applies to the particular award. When section 988 of EPAct 2005 applies
to an award, the AO must obtain the required approval of the
elimination or reduction of the required cost share in accordance with
the section 988 of EPAct 2005.
Sec. 930.130 Fee or profit.
The Agreements Officer, meaning the cognizant warranted Department
of Energy or National Nuclear Security Administration official
authorized to execute and administer other transaction (OT) agreements,
may not issue an OT agreement if any awardee, subawardees or
participant is to receive fee or profit for the research, development,
and demonstration (RD&D) efforts. This requirement extends to all
awardees and performers
[[Page 196]]
funded under the project, including any subawards for substantive
program performance, but it does not preclude participants' or
subawardees' payment of reasonable fee or profit when making purchases
from suppliers of goods (e.g., supplies and equipment) or services
needed to carry out the RD&D.
Sec. 930.135 Competition.
(a) Department of Energy (DOE) awards other transaction (OT)
agreements using non-procurement, non-Federal financial assistance
competitive processes in a merit-based selection process:
(1) In every case where required by statute; and
(2) To the maximum extent feasible, in all other cases. If it is
not feasible to use competitive process, the reason for not using a
competitive process must be documented by the Agreements Officer (AO),
meaning the cognizant warranted DOE or National Nuclear Security
Administration official authorized to execute and administer OT
agreements.
(b) The AO must document any restrictions on awardee eligibility.
Sec. 930.140 Disclosure of information.
(a) For all other transaction (OT) agreements, trade secrets and
commercial or financial information that would be protected from
disclosure requirements of the Freedom of Information Act (FOIA)
(codified at 5 U.S.C. 552) if obtained from a person other than a
Federal agency:
(1) For a period of five years after the date on which the
information is developed; or
(2) For up to thirty years after the date on which the information
is developed, if the Secretary or delegee of the Secretary determines
that the nature of the technology under the transaction, including
nuclear technology, could reasonably require an extended period of
protection from disclosure to reach commercialization.
(b) As provided in 42 U.S.C. 7256(g)(1) incorporating certain
provisions of 10 U.S.C. 4021, disclosure is not required, and may not
be compelled, under FOIA during that period if:
(1) A proposer submits the information in a competitive or
noncompetitive process that could result in the award of an OT
agreement; and
(2) The type of information is among the following types that are
exempt:
(i) Proposals, proposal abstracts, and supporting documents; and
(ii) Business plans and technical information submitted on a
confidential basis.
(c) If proposers desire to protect business plans and technical
information for five years from FOIA disclosure requirements, they must
mark them with a legend identifying them as documents submitted on a
confidential basis. After the five-year period, information may be
protected for longer periods if it meets any of the criteria in 5
U.S.C. 552(b) (as implemented by the DOE in 10 CFR part 1004) for
exemption from FOIA disclosure requirements.
Subpart B--Pre-Award Business Evaluation
Sec. 930.200 Scope.
This subpart addresses administrative matters that do not impose
organization-wide requirements on an awardee's business (financial
management, property management, or purchasing) systems. An
organization does not have to redesign its business systems to
accommodate variations in these requirements. Agreements may differ in
the requirements that they specify based on the awardee and the
specific circumstances of the research, development, and demonstration
project.
Sec. 930.205 Financial management standards.
(a) Any awardees that currently perform under other expenditure-
based Federal procurement contracts or assistance awards are subject to
the same standards for financial management systems that apply to those
other Federal awards.
(b) Any awardees that do not currently perform under expenditure-
based Federal procurement contracts or assistance awards should be
allowed to use their existing financial management system as long as
the system, at a minimum, effectively controls all project funds,
including Federal funds and any required cost share. The system must
have complete, accurate, and current records that document the sources
of funds and the purposes for which they are disbursed. Awardees also
must have procedures for ensuring that project funds are used only for
purposes permitted by the agreement.
Sec. 930.210 Cost principles and standards.
(a) For-profit awardees. The cost principles in 48 CFR part 31 will
generally apply to for-profit awardees.
(b) Other than For-profit awardees. The cost principles in 2 CFR
part 200 will generally apply to states, local governments, Indian
Tribes, institutes of higher education and other nonprofit entities.
(c) Cost standards. The Agreements Officer, meaning the cognizant
warranted Department of Energy (DOE) or National Nuclear Security
Administration official authorized to execute and administer other
transaction agreements, may establish alternative standards in the
agreement as long as that alternative provides, as a minimum, that:
(1) Federal funds and funds counted as awardees' cost sharing will
be used only for costs that a reasonable and prudent person would incur
in carrying out the research, development, and demonstration (RD&D)
project contemplated by the agreement.
(2) Costs must be allocated to DOE and other projects in accordance
with the relative benefits the projects receive.
(3) Costs allocated to DOE projects must be given consistent
treatment with costs allocated to the participants' other RD&D
activities (e.g., activities supported by the participants themselves
or by non-Federal sponsors).
(4) The standards must also state that the Federal funds and funds
counted as participants' cost sharing will be used only for costs that
are consistent with the purposes stated in the governing Congressional
authorizations and appropriations.
Sec. 930.215 Audit requirements.
(a) For-profit awardees. If an expenditure-based other transaction
(OT) agreement provides for audits of a for-profit participant, the
Agreements Officer, meaning the cognizant warranted Department of
Energy or National Nuclear Security Administration official authorized
to execute and administer OT agreements, also must specify:
(1) Whether the Defense Contract Auditing Agency or an Independent
Public Accountant will perform the required audits.
(2) What the audits are to cover.
(3) Who will pay for the audits.
(4) The auditing standards that the auditor will use.
(5) The available remedies for noncompliance.
(6) Where the auditor is to send audit reports.
(7) The retention period for the auditor's working papers.
(8) Who will have access to the auditor's working papers.
(b) Other than For-profit awardees. Expenditure-based OT agreements
are subject to the Single Audit Act (31 U.S.C. 7501-7507). State, local
government, Indian Tribes, institutes of higher education, and
nonprofit participants are subject to the requirements under that Act.
Additional
[[Page 197]]
information may be found at 2 CFR part 200, subpart F.
Sec. 930.220 Real property and equipment.
(a) The participant must include the cost of the real property or
equipment as part of the proposed cost of the project. The Agreements
Officer (AO), meaning the cognizant warranted Department of Energy
(DOE) or National Nuclear Security Administration official authorized
to execute and administer other transaction (OT) agreements, must
approve the use of project funds (Federal or cost share) to purchase
real property or equipment. The AO should specify the use, management,
vesting of title, and disposition requirements in the award.
(b) The AO may include an alternative property provision where DOE
is authorized to grant title to property or equipment acquired under an
OT agreement when determined such a grant is appropriate.
Sec. 930.225 Purchasing systems standards.
(a) Any awardees that currently perform under other expenditure-
based Federal procurement contracts or assistance awards are subject to
the same standards for purchasing systems that apply to those other
Federal awards.
(b) Any awardees that do not currently perform under expenditure-
based Federal procurement contracts or assistance awards should be
allowed to use its existing purchasing system as long as the system, at
a minimum, is able to flow down the applicable requirements in Federal
statutes, Executive orders, or Governmentwide regulations.
Subpart C--Award Terms Related to Other Administrative Matters
Sec. 930.300 Payment methods.
Available payment methods include:
(a) Reimbursement. Under this method, participants request
reimbursement for costs incurred during a particular time period. The
Department of Energy (DOE) reimburses the participant by electronic
funds transfer after approval of the request by the Agreements Officer,
meaning the cognizant warranted DOE or National Nuclear Security
Administration official authorized to execute and administer other
transaction agreements, or designee. This payment method is used for
expenditure-based awards.
(b) Advance payments. Under this method, participants request
advance payment based upon projections of the cash needs for the
project, or for large purchases. Predetermined payment schedules may be
used when the timing of the participant's needs to disburse funds can
be predicted in advance with sufficient accuracy to ensure the funds
are used in accordance with project objectives and schedules.
(c) Payments based on payable milestones. Under this method
payments made according to a schedule established for the award that is
based on accomplishment of predetermined, well-defined, observable, and
verifiable measures of technical progress, outcomes, or other payable
milestones. A fixed-support award must use this payment method;
however, this does not preclude the use of an initial advance payment
if there is no alternative to meeting immediate cash needs. Payments
based on payable milestones is the preferred method of payment for an
expenditure-based award if well-defined outcomes can be identified.
Sec. 930.305 Government approval of changes in plans.
Department of Energy must approve any changes in project plans that
may result in a need for additional Federal funding to be provided to
the other transaction agreement.
Sec. 930.310 Pre-award costs.
Pre-award costs may be reimbursed only with the specific approval
of the Agreements Officer (AO), meaning the cognizant warranted
Department of Energy (DOE) or National Nuclear Security Administration
official authorized to execute and administer other transaction
agreements. All pre-award costs are incurred at the applicant's and/or
awardee's risk. DOE is not obligated to reimburse the costs if, for any
reason, the applicant does not receive an award, the award is less than
anticipated and inadequate to cover the costs, or the AO did not
provide prior approval for the reimbursement of the pre-award costs.
Sec. 930.315 Negotiating data and patent rights.
The Agreements Officer, meaning the cognizant warranted Department
of Energy (DOE) or National Nuclear Security Administration official
authorized to execute and administer other transaction agreements, must
confer with program officials and assigned intellectual property
counsel to develop an overall strategy for intellectual property taking
into account inventions and data that may result from the project and
future needs the Government may have for rights in them. The strategy
should address program mission requirements and any special
circumstances that would support modification of standard intellectual
property provisions, and should include considerations such as the
extent of the awardee's contribution to the development of the
technology; expected Government or commercial use of the technology;
the need to provide equitable treatment among consortium or team
members; and the need for DOE to engage non-traditional Government
contractors with unique capabilities.
Sec. 930.320 Data rights.
(a) For provisions regarding data rights for any awardee entity
type, the data rights requirements at 2 CFR 910.362(d), Rights in data-
general rule, normally apply when the Government is to be provided with
unlimited rights in data and should be used as a starting point for
such other transaction (OT) agreements. Here, the ``Rights in Data--
General'' provision in appendix A to subpart D of 10 CFR part 910
typically applies. However, if the awardee is to receive special data
protection, the data requirements at 2 CFR 910.362(e), Rights in data--
programs covered under special protected data statutes normally apply
and should be used as a starting point for such OT agreements. Here,
the ``Rights in Data--Programs Covered Under Special Protected Data
Statutes'' provision in appendix A to subpart D of 10 CFR part 910
typically applies. Consistent with 42 U.S.C. 7256(g)(5), data
protection can be provided typically for a period of up to 5 years but
may be extended up to a total of 30 years in particular circumstances.
(b) However, while maintaining compliance with 42 U.S.C. 7256(g),
the Agreements Officer, meaning the cognizant warranted Department of
Energy (DOE) or National Nuclear Security Administration official
authorized to execute and administer OT agreements, may negotiate data
rights requirements that vary from those listed above. Use of or
modifications to the standard rights in data provisions must be
approved by cognizant DOE intellectual property counsel.
Sec. 930.325 Rights in inventions.
(a) When negotiating rights in inventions, the Agreements Officer
(AO), meaning the cognizant warranted Department of Energy (DOE) or
National Nuclear Security Administration official authorized to execute
and administer other transaction (OT) agreements, should negotiate
terms that represent an appropriate balance between the Government's
interests and the awardee's interests. Bayh-Dole (35 U.S.C. 200-212)
patent rights provisions
[[Page 198]]
implemented via 37 CFR 401.14 as modified by the DOE (see e.g., U.S.
Competitiveness provision and Department of Energy Determination of
Exceptional Circumstances Under the Bayh-Dole Act to Further Promote
Domestic Manufacture of DOE Science and Energy Technologies) should be
used as a starting point for all awardee entity types. However, the AO
may negotiate rights that vary from those in modified 37 CFR 401.14.
For example, Bayh-Dole March-in-Rights found in modified 37 CFR 401.14
and concerning actions that the Government may take to obtain the right
to use subject inventions if the awardee fails to take effective steps
to achieve practical application of the subject inventions within a
reasonable time, may be modified or removed entirely. Use of or
modifications to the standard rights provisions must be approved by
cognizant DOE intellectual property counsel.
(b) For subawards, the OT should typically indicate that sub-
awardees will get title to inventions they make but alternative terms
could be included such as those specifying that sub-awardees' invention
rights are to be negotiated between awardee and sub-awardee or some
other disposition of invention rights.
Sec. 930.330 Research and technology security and U.S. manufacturing
and competitiveness requirements.
(a) Foreign access to technology. Consistent with the objective of
enhancing national security and United States competitiveness by
increasing the public's reliance on United States commercial
technology, the Agreements Officer, meaning the cognizant warranted
Department of Energy (DOE) or National Nuclear Security Administration
official authorized to execute and administer other transaction (OT)
agreements, must include provisions in an OT agreement that addresses
foreign access to technology developed under the OT agreement.
Provisions must be included in an OT that provide, at a minimum, that
any transfer of the technology must be consistent with the U.S. export
control laws, regulations and the Department of Commerce Export
Regulation at Chapter VII, Subchapter C, Title 15 of the CFR (15 CFR
parts 730-774), as applicable.
(b) DOE research and technology security policies. All DOE research
and technology security policies apply to OTs unless the activities
being funded are outside the scope of the policies or otherwise
exempted from the policies.
(c) U.S. manufacturing and competitiveness. Notice should be
included in the OT indicating that products embodying any invention or
produced through the use of any invention are subject to the U.S.
Competitiveness terms outlined in modified 37 CFR 401.14. These terms
may not be modified or waived without approval from cognizant DOE
intellectual property counsel.
Sec. 930.335 Record retention requirements.
(a) Awardees must keep records related to the agreement for a
period of three years after submission of the final financial status
report for an expenditure-based award or final program performance
report for a fixed-support award, with the following exceptions:
(1) The awardees must keep records longer than three years after
submission of the final financial status report if the records relate
to an audit, claim, or dispute that begins but does not reach its
conclusion within the 3-year period. In that case, the awardees must
keep the records until the matter is resolved and final action taken.
(2) Records for any real property or equipment acquired with
project funds under the agreement must be kept for three years after
final disposition.
(b) [Reserved]
Sec. 930.340 Access to records.
(a) The Department of Energy (DOE), through the Agreements Officer
(AO), meaning the cognizant warranted DOE or National Nuclear Security
Administration official authorized to execute and administer other
transaction agreements, has an unfettered right of timely access to any
documents, papers, or other records of the awardee which are pertinent
to the Federal award, in order to inspect and make copies, audits,
examinations, excerpts, and/or transcripts. The right also includes
timely and reasonable access to the awardee's personnel for the purpose
of interview and discussion related to such documents. The exercise of
this authority is at the discretion of the AO.
(b) Inspectors General and the Comptroller General of the United
States may have independent legal authority to access to records or
personnel related to the Federal award. Consistent with the independent
legal authority, recipients should follow the laws and regulations
applicable to requests for access to records or personnel from
Inspectors General and the Comptroller General of the United States.
Sec. 930.345 Noncompliance and termination requirements.
(a) Noncompliance. If an awardee materially fails to comply with
the articles or terms and conditions of an agreement, whether stated in
a Federal statute, regulation, assurance, application, plan, or the
notice of award, the Agreements Officer (AO), meaning the cognizant
warranted Department of Energy (DOE) or National Nuclear Security
Administration official authorized to execute and administer other
transaction (OT) agreements, may take one or more of the following
actions, as appropriate:
(1) Temporarily withhold cash payments pending correction of the
deficiency by the awardee or more severe enforcement action by the AO.
(2) Disallow or deny both the use of funds and any applicable cost
share for all or part of the cost of the activity or action not in
compliance.
(3) Wholly or partly suspend or terminate the current award.
(4) Withhold further awards for the project or program.
(5) Apply other remedies that may be legally available.
(b) Termination. The OT agreement must include an article that
indicates that the Government may terminate the agreement in whole or
in part if the awardee materially fails to comply with the articles or
terms and conditions of an agreement, whether stated in a Federal
statute, regulation, assurance, application, plan, or the notice of
award fails to comply with the articles and requirements of the award.
An agreement may include an article providing for the termination of
the agreement, in whole or in part, by mutual agreement or as
negotiated by the parties. In the case of proposed partial termination
of the agreement, if the remaining portion of the award will not
accomplish the purposes for which the agreement was made, the award may
be terminated in its entirety.
(1) Unless otherwise negotiated, for terminations of an
expenditure-based award, DOE's maximum liability is the lesser of:
(i) DOE's share of allowable costs incurred up to the date of
termination, or
(ii) The amount of DOE funds obligated to the award.
(2) Unless otherwise negotiated, for terminations of a fixed-
support based award, DOE shall pay the awardee for the last fully
completed milestone.
(3) Notwithstanding paragraphs (b)(1) and (2) of this section, if
the awardee initiates termination and the award includes milestone
payments, the Government has no obligation to pay the
[[Page 199]]
awardee beyond the last completed and paid milestone.
(c) Right to appeal. (1) The awardee has the right to appeal to the
cognizant Senior Procurement Executive (SPE), as defined by 41 U.S.C.
1702(c), to review only the following actions:
(i) A DOE determination that the awardee has failed to comply with
the applicable requirements of the award;
(ii) Termination of an award, in whole or in part, by DOE;
(iii) The application by DOE of an indirect cost rate; and
(iv) DOE disallowance of costs.
(2) In reviewing appeals authorized under paragraph (c)(1) of this
section, the SPE is bound by the applicable law, statutes, and rules,
including the requirements of this part, and by the articles or terms
and conditions of the award.
(3) The decision of the SPE shall be the final decision of DOE.
Subpart D--Appropriate Use of Technology Investment Agreements
Sec. 930.400 Use of Technology Investment Agreements (TIAs).
For purposes of this part, a Technology Investment Agreements (TIA)
is a special type of other transaction (OT) agreement that is an
assistance instrument used to increase involvement of a for-profit
entity or segment of a for-profit entity (e.g., a division or other
business unit) that does a substantial portion of its business in the
commercial marketplace in Department of Energy's (DOE) research,
development, and demonstration (RD&D) programs. A TIA requires
substantial Federal involvement in the technical or management aspects
of the project. The goal for using a TIA is to broaden the technology
base available to meet DOE mission requirements and foster within the
technology base new relationships and practices to advance the national
economic and energy security of the United States, to promote
scientific and technological innovation in support of that mission, and
to ensure the environmental cleanup of the national nuclear weapons
complex. A TIA therefore is designed to reduce barriers to
participation in RD&D programs by for-profit entities that deal
primarily in the commercial marketplace. A TIA allows Agreements
Officers (AO), meaning the cognizant warranted DOE or National Nuclear
Security Administration official authorized to execute and administer
OT agreements, to tailor Government requirements and lower or remove
barriers if it can be done with proper stewardship of Federal funds. A
TIA may also promote new relationships among performers in the
technology base. Collaborations among for-profit entities that deal
primarily in the commercial marketplace, firms that regularly perform
on the DOE RD&D programs and nonprofit organizations can enhance
overall quality and productivity.
Sec. 930.405 TIA awardees.
(a) A Technology Investment Agreements (TIA) may be awarded to a
single entity or multiple entities (e.g., a teaming arrangement) in
prime award-subaward relationships.
(b) A TIA requires one or more for-profit entities, not acting in
their capacity as the contractor operating a Federally Funded Research
and Development Center (FFRDC), to be involved either in the:
(1) Performance of the research, development, and demonstration
(RD&D) project; or
(2) The commercial application of the results of the RD&D project.
(c)(1) In those cases where there is only a non-profit awardee or a
consortium of non-profit entities or non-profit entities and FFRDC
contractors (as sub-awardees), if and as authorized, the awardees must
have at least a tentative agreement with a specific for-profit entity
or entities that plan on being involved in the commercial application
of the results.
(2) In consultation with legal counsel, the Agreements Officer,
meaning the cognizant warranted Department of Energy or National
Nuclear Security Administration official authorized to execute and
administer OT agreements, must review the agreement between the parties
to ensure that the for-profit entity is committed to being involved in
the commercial application of the results.
Sec. 930.410 Purchase of real property and equipment by for-profit
firms.
Federal funds provided under another transaction (OT) agreement to
for-profit entities must not be used to purchase real property or
equipment. If the OT agreement requires the purchase of real property
or equipment, the for-profit entity must use its own funds that are
separate from the research, development, and demonstration project. The
Agreements Officer, meaning the cognizant warranted Department of
Energy or National Nuclear Security Administration official authorized
to execute and administer OT agreements, should allow the for-profit
participant to charge to an expenditure-based award or include in the
cost estimate for fixed-support award, only depreciation or use charges
for the real property or equipment. Note that the for-profit must
charge depreciation consistently with its usual accounting practices
and policies. Many for-profits treat depreciation as an indirect cost.
Any for-profit that usually charges depreciation indirectly for a
particular type of property must not charge depreciation for that
property as a direct cost to the OT agreement.
Sec. 930.415 Government participation.
A Technology Investment Agreements is used to carry out cooperative
relationships between the Federal Government and the awardee(s) which
require substantial involvement of the Government in the technical and/
or management aspects of the research, development, and demonstration
(RD&D) project.
Title 10
PART 603--[REMOVED AND RESERVED]
0
2. Under the authority of 42 U.S.C. 7101 et seq.; 31 U.S.C. 6301-6308;
50 U.S.C. 2401 et seq., part 603 is removed and reserved.
[FR Doc. 2024-30636 Filed 1-2-25; 8:45 am]
BILLING CODE 6450-01-P
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</html>Indexed from Federal Register on January 3, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.