45 CFR Parts 160 & 164 (CFR Annual Edition) ity must require a non-Fed- eral entity to submit reports at least annually on the status of real property in which the Federal Government re- tains an interest, unless the Federal in- terest in the real property extends 15 years or longer. In those instances where the Federal interest attached is for a period of 15 years or more, the HHS awarding agency or pass-through entity, at its option, may require the non-Federal entity to report at various multi-year frequencies (e.g., every two years or every three years, not to ex- ceed a five-year reporting period; or an HHS awarding agency or pass-through entity may require annual reporting for the first three years of a Federal award and thereafter require reporting every five years). §§ 75.344–75.350 [Reserved] SUBRECIPIENT MONITORING AND MANAGEMENT § 75.351 Subrecipient and contractor determinations. case-by-case The non-Federal entity may concur- rently receive Federal awards as a re- cipient, a subrecipient, and a con- tractor, depending on the substance of its agreements with HHS awarding agencies and pass-through entities. Therefore, a pass-through entity must make determinations whether each agreement it makes for the disburseme ng on the substance of its agreements with HHS awarding agencies and pass-through entities. Therefore, a pass-through entity must make determinations whether each agreement it makes for the disbursement of Federal program funds casts the party receiving the funds in the role of a subrecipient or a contractor. The HHS awarding agency may supply and require recipients to comply with additional guidance to support these determinations provided such guidance does not conflict with this section. (a) Subrecipients. A subaward is for the purpose of carrying out a portion of a Federal award and creates a Federal assistance relationship with the sub- recipient. See § 75.2 Subaward. Charac- teristics which support the classifica- tion of the non-Federal entity as a sub- recipient include when the non-Federal entity: (1) Determines who is eligible to re- ceive what Federal assistance; (2) Has its performance measured in relation to whether objectives of a Fed- eral program were met; (3) Has responsibility for pro- grammatic decision making; (4) Is responsible for adherence to ap- plicable Federal program requirements specified in the Federal award; and (5) In accordance with its agreement, us nsibility for pro- grammatic decision making; (4) Is responsible for adherence to ap- plicable Federal program requirements specified in the Federal award; and (5) In accordance with its agreement, uses the Federal funds to carry out a program for a public purpose specified in authorizing statute, as opposed to providing goods or services for the ben- efit of the pass-through entity. (b) Contractors. A contract is for the purpose of obtaining goods and services for the non-Federal entity’s own use and creates a procurement relationship with the contractor. See § 75.2 Contract. Characteristics indicative of a procure- ment relationship between the non- Federal entity and a contractor are when the contractor: 286 Dept. of Health and Human Services § 75.352 (1) Provides the goods and services within normal business operations; (2) Provides similar goods or services to many different purchasers; (3) Normally operates in a competi- tive environment; (4) Provides goods or services that are ancillary to the operation of the Federal program; and (5) Is not subject to compliance re- quirements of the Federal program as a result of the agreement, though similar requirements may apply for oth ncillary to the operation of the Federal program; and (5) Is not subject to compliance re- quirements of the Federal program as a result of the agreement, though similar requirements may apply for other rea- sons. (c) Use of judgment in making deter- mination. In determining whether an agreement between a pass-through en- tity and another non-Federal entity casts the latter as a subrecipient or a contractor, the substance of the rela- tionship is more important than the form of the agreement. All of the char- acteristics listed above may not be present in all cases, and the pass- through entity must use judgment in classifying each agreement as a subaward or a procurement contract. [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3016, Jan. 20, 2016] § 75.352 Requirements through entities. for pass- All pass-through entities must: (a) Ensure that every subaward is clearly identified to the subrecipient as a subaward and includes the following information at the time of the subaward and if any of these data ele- ments change, include the changes in subaward modification. subsequent When some of this information is not available, the pass-through entity must provide the best informat if any of these data ele- ments change, include the changes in subaward modification. subsequent When some of this information is not available, the pass-through entity must provide the best information available to describe the Federal award and subaward. Required information includes: (1) Federal Award Identification. (i) Subrecipient name (which must match the name associated with its unique entity identifier; (ii) Subrecipient’s unique entity identifier; (iii) Federal Award Identification Number (FAIN); (iv) Federal Award Date (see § 75.2 Federal award date) of award to the re- cipient by the HHS awarding agency; (vi) Amount of Federal Funds Obli- gated by this action by the pass- through entity to the subrecipient; (vii) Total Amount of Federal Funds Obligated to the subrecipient by the pass-through entity including the cur- rent obligation; (viii) Total Amount of the Federal Award committed to the subrecipient by the pass-through entity; (ix) Federal award project descrip- tion, as required to be responsive to the Federal Funding Accountability and Transparency Act (FFATA); (x) Name of HHS awarding agency, pass-through entity, and contract in- formation for awarding official as required to be responsive to the Federal Funding Accountability and Transparency Act (FFATA); (x) Name of HHS awarding agency, pass-through entity, and contract in- formation for awarding official of the pass-through entity; (xi) CFDA Number and Name; the pass-through entity must identify the dollar amount made available under each Federal award and the CFDA number at time of disbursement; (xii) Identification of whether the award is R&D; and (xiii) Indirect cost rate for the Fed- eral award (including if the de minimis rate is charged per § 75.414). (2) All requirements imposed by the pass-through entity on sub- recipient so that the Federal award is used in accordance with Federal stat- utes, regulations and the terms and conditions of the Federal award; the (3) Any additional requirements that the pass-through entity imposes on the subrecipient in order for the pass- through entity to meet its own respon- sibility to the HHS awarding agency including identification of any required financial and performance reports; (4) An approved federally recognized indirect cost rate negotiated between the subrecipient and the Federal Gov- ernment or, if no such rate exists, ei- ther a ra ed financial and performance reports; (4) An approved federally recognized indirect cost rate negotiated between the subrecipient and the Federal Gov- ernment or, if no such rate exists, ei- ther a rate negotiated between the pass-through entity and the sub- recipient (in compliance with this part), or a de minimis indirect cost rate as defined in § 75.414(f); (5) A requirement that the sub- recipient permit the pass-through enti- ty and auditors to have access to the subrecipient’s records and financial statements as necessary for the pass- through entity to meet the require- ments of this part; and (v) Subaward Period of Performance (6) Appropriate terms and conditions Start and End Date; concerning closeout of the subaward. 287 § 75.353 45 CFR Subtitle A (10–1–24 Edition) (b) Evaluate each subrecipient’s risk of noncompliance with Federal stat- utes, regulations, and the terms and conditions of the subaward for purposes of determining the appropriate sub- recipient monitoring described in para- graphs (d) and (e) of this section, which may include consideration of such fac- tors as: (1) The subrecipient’s prior experi- ence with the same or similar sub- awards; (2) The results o bed in para- graphs (d) and (e) of this section, which may include consideration of such fac- tors as: (1) The subrecipient’s prior experi- ence with the same or similar sub- awards; (2) The results of previous audits in- cluding whether or not the sub- recipient receives a Single Audit in ac- cordance with subpart F, and the ex- tent to which the same or similar subaward has been audited as a major program; (3) Whether the subrecipient has new personnel or new or substantially changed systems; and (4) The extent and results of HHS awarding agency monitoring (e.g., if the subrecipient also receives Federal awards directly from a HHS awarding agency). (c) Consider specific subaward conditions upon a sub- recipient if appropriate as described in § 75.207. imposing (d) Monitor the activities of the sub- recipient as necessary to ensure that the subaward is used for authorized purposes, in compliance with Federal statutes, regulations, and the terms and conditions of the subaward; and that subaward performance goals are achieved. Pass-through entity moni- toring of the subrecipient must in- clude: (1) Reviewing financial and perform- ance reports required by the pass- through entity. ( subaward performance goals are achieved. Pass-through entity moni- toring of the subrecipient must in- clude: (1) Reviewing financial and perform- ance reports required by the pass- through entity. (2) Following-up and ensuring that the subrecipient takes timely and ap- propriate action on all deficiencies per- taining to the Federal award provided to the subrecipient from the pass- through entity detected through au- dits, on-site reviews, and other means. (3) Issuing a management decision for audit findings pertaining to the Fed- eral award provided to the subrecipient from the pass-through entity as re- quired by § 75.521. (e) Depending upon the pass-through entity’s assessment of risk posed by the subrecipient (as described in para- graph (b) of this section), the following monitoring tools may be useful for the pass-through entity to ensure proper accountability and compliance with program requirements and achieve- ment of performance goals: (1) Providing subrecipients with training and technical assistance on program-related matters; and (2) Performing on-site reviews of the subrecipient’s program operations; (3) Arranging for agreed-upon-proce- dures engagements as describe ing and technical assistance on program-related matters; and (2) Performing on-site reviews of the subrecipient’s program operations; (3) Arranging for agreed-upon-proce- dures engagements as described in § 75.425. (f) Verify that every subrecipient is audited as required by subpart F of this part when it is expected that the sub- recipient’s Federal awards expended during the respective fiscal year equaled or exceeded the threshold set forth in § 75.501. (g) Consider whether the results of the subrecipient’s audits, on-site re- views, or other monitoring indicate conditions that necessitate adjust- ments to the pass-through entity’s own records. (h) Consider taking enforcement ac- tion against noncompliant subrecipi- ents as described in § 75.371 and in pro- gram regulations. [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3016, Jan. 20, 2016] § 75.353 Fixed amount subawards. With prior written approval from the HHS awarding agency, a pass-through entity may provide subawards based on fixed amounts up to the Simplified Ac- quisition Threshold, provided that the subawards meet the requirements for fixed amount awards in § 75.201. §§ 75.354–75.360 [Reserved] RECORD RETENTION AND AC n fixed amounts up to the Simplified Ac- quisition Threshold, provided that the subawards meet the requirements for fixed amount awards in § 75.201. §§ 75.354–75.360 [Reserved] RECORD RETENTION AND ACCESS § 75.361 Retention requirements for records. Financial records, supporting docu- ments, statistical records, and all other non-Federal entity records perti- nent to a Federal award must be re- tained for a period of three years from the date of submission of the final ex- penditure report or, for Federal awards that are renewed quarterly or annu- ally, from the date of the submission of 288 Dept. of Health and Human Services § 75.364 the quarterly or annual financial re- port, respectively, as reported to the HHS awarding agency or pass-through entity in the case of a subrecipient. HHS awarding agencies and pass- through entities must not impose any other record retention requirements upon non-Federal entities. The only ex- ceptions are the following: (a) If any litigation, claim, or audit is started before the expiration of the 3-year period, the records must be re- tained until all litigation, claims, or audit findings involving the records have been resolved and final action ta audit is started before the expiration of the 3-year period, the records must be re- tained until all litigation, claims, or audit findings involving the records have been resolved and final action taken. (b) When the non-Federal entity is notified in writing by the HHS award- ing agency, cognizant agency for audit, oversight agency for audit, cognizant agency for indirect costs, or pass- through entity to extend the retention period. (c) Records for real property and equipment acquired with Federal funds must be retained for 3 years after final disposition. (d) When records are transferred to or maintained by the HHS awarding agen- cy or pass-through entity, the 3-year retention requirement is not applicable to the non-Federal entity. (e) Records for program income transactions after the period of per- formance. In some cases, recipients must report program income after the period of performance. Where there is such a requirement, the retention pe- riod for the records pertaining to the earning of the program income starts from the end of the non-Federal enti- ty’s fiscal year in which the program income is earned. (f) Indirect cost rate proposals and cost allocations plans. This he earning of the program income starts from the end of the non-Federal enti- ty’s fiscal year in which the program income is earned. (f) Indirect cost rate proposals and cost allocations plans. This paragraph applies to the following types of docu- ments and their supporting records: In- direct cost rate computations or pro- posals, cost allocation plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable (such as computer usage chargeback rates or composite fringe benefit rates). (1) If submitted for negotiation. If the proposal, plan, or other computation is required to be submitted to the Federal Government (or to the pass-through entity) to form the basis for negotia- tion of the rate, then the 3-year reten- tion period for its supporting records starts from the date of such submis- sion. (2) If not submitted for negotiation. If the proposal, plan, or other computa- tion is not required to be submitted to the Federal Government (or to the pass-through entity) for negotiation purposes, then the 3-year retention pe- riod for the proposal, plan, or computa- tion and its supporting records starts from the end of the fiscal year ( or to the pass-through entity) for negotiation purposes, then the 3-year retention pe- riod for the proposal, plan, or computa- tion and its supporting records starts from the end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computa- tion. § 75.362 Requests records. for transfer or The HHS awarding agency must re- quest transfer of certain records to its custody from the non-Federal entity when it determines that the records long-term retention value. possess However, in order to avoid duplicate recordkeeping, the HHS awarding agen- cy may make arrangements for the non-Federal entity to retain any records that are continuously needed for joint use. § 75.363 Methods for collection, trans- mission and storage of information. In accordance with the May 2013 Ex- ecutive Order on Making Open and Ma- chine readable the New Default for Government Information, the HHS awarding agency and the non-Federal entity should, whenever practicable, collect, transmit, and store Federal award-related information in open and machine readable formats rather than in closed formats or on paper. [81 FR 3017, Jan. 20, 2016] § 75.364 Access to records. (a) Records ansmit, and store Federal award-related information in open and machine readable formats rather than in closed formats or on paper. [81 FR 3017, Jan. 20, 2016] § 75.364 Access to records. (a) Records of non-Federal entities. The HHS awarding agency, Inspectors Gen- eral, the Comptroller General of the United States, and the pass-through entity, or any of their authorized rep- resentatives, must have the right of ac- cess to any documents, papers, or other records of the non-Federal entity which are pertinent to the Federal award, in order to make audits, exami- nations, excerpts, and transcripts. The right also includes timely and reason- able access to the non-Federal entity’s 289 § 75.365 45 CFR Subtitle A (10–1–24 Edition) personnel for the purpose of interview and discussion related to such docu- ments. (b) Only under extraordinary and rare circumstances would such access include review of the true name of vic- tims of a crime. Routine monitoring cannot be considered extraordinary and rare circumstances that would neces- sitate access to this information. When access to the true name of victims of a crime is necessary, appropriate steps to protect this sensitive information mus and rare circumstances that would neces- sitate access to this information. When access to the true name of victims of a crime is necessary, appropriate steps to protect this sensitive information must be taken by both the non-Federal enti- ty and the HHS awarding agency. Any such access, other than under a court order or subpoena pursuant to a bona fide confidential investigation, must be approved by the head of the HHS awarding agency or delegate. (c) Expiration of right of access. The rights of access in this section are not limited to the required retention pe- riod but last as long as the records are retained. HHS awarding agencies and pass-through entities must not impose any other access requirements upon non-Federal entities. § 75.365 Restrictions on public access to records. Consistent with § 75.322, HHS award- ing agencies may require recipients to permit public access to manuscripts, publications, and data produced under an award. However, no HHS awarding agency may place restrictions on the non-Federal entity that limits public access to the records of the non-Fed- eral entity pertinent to a Federal award identified in §§ 75.361 through 75.364, except for protected pers strictions on the non-Federal entity that limits public access to the records of the non-Fed- eral entity pertinent to a Federal award identified in §§ 75.361 through 75.364, except for protected personally identifiable information (PII) or when the HHS awarding agency can dem- onstrate that such records will be kept confidential and would have been ex- empted from disclosure pursuant to the Freedom of Information Act (5 U.S.C. 552) (FOIA) or controlled unclassified information pursuant to Executive Order 13556 if the records had belonged to the HHS awarding agency. The FOIA does not apply to those records that re- main under a non-Federal entity’s con- trol except as required under § 75.322. Unless required by Federal, State, local, or tribal statute, non-Federal en- tities are not required to permit public access to their records identified in §§ 75.361 through 75.364. The non-Fed- eral entity’s records provided to a Fed- eral agency generally will be subject to FOIA and applicable exemptions. [86 FR 2278, Jan. 12, 2021] §§ 75.366–75.370 [Reserved] REMEDIES FOR NONCOMPLIANCE § 75.371 Remedies for noncompliance. If a non-Federal entity fails to com- ply with Federal statutes, regu xemptions. [86 FR 2278, Jan. 12, 2021] §§ 75.366–75.370 [Reserved] REMEDIES FOR NONCOMPLIANCE § 75.371 Remedies for noncompliance. If a non-Federal entity fails to com- ply with Federal statutes, regulations, or the terms and conditions of a Fed- eral award, the HHS awarding agency or pass-through entity may impose ad- ditional conditions, as described in § 75.207. If the HHS awarding agency or pass-through entity determines that noncompliance cannot be remedied by imposing additional conditions, the HHS awarding agency or pass-through entity may take one or more of the fol- lowing actions, as appropriate in the circumstances: (a) Temporarily withhold cash pay- ments pending correction of the defi- ciency by the non-Federal entity or more severe enforcement action by the HHS awarding agency or pass-through entity. (b) Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance. (c) Wholly or partly suspend (suspen- sion of award activities) or terminate the Federal award. (d) Initiate suspension or debarment proceedings as authorized under 2 CFR part 180 and HHS awarding agency reg- ulations a y suspend (suspen- sion of award activities) or terminate the Federal award. (d) Initiate suspension or debarment proceedings as authorized under 2 CFR part 180 and HHS awarding agency reg- ulations at 2 CFR part 376 (or in the case of a pass-through entity, rec- ommend such a proceeding be initiated by a HHS awarding agency). (e) Withhold further Federal awards for the project or program. (f) Take other remedies that may be legally available. § 75.372 Termination. (a) The Federal award may be termi- nated in whole or in part as follows: (1) By the HHS awarding agency or pass-through entity, if the non-Federal entity fails to comply with the terms and conditions of the award; (2) By the HHS awarding agency or pass-through entity for cause; 290 Dept. of Health and Human Services § 75.373 (3) By the HHS awarding agency or pass-through entity with the consent of the non-Federal entity, in which case the two parties must agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated; or (4) By the non-Federal entity upon sending to the HHS awarding agency or pass-through entity written notifica- tion setting for nd, in the case of partial termination, the portion to be terminated; or (4) By the non-Federal entity upon sending to the HHS awarding agency or pass-through entity written notifica- tion setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, if the HHS awarding agency or pass- through entity determines in the case of partial termination that the reduced or modified portion of the Federal award or subaward will not accomplish the purposes for which the Federal award was made, the HHS awarding agency or pass-through entity may ter- minate the Federal award in its en- tirety. (b) When an HHS awarding agency terminates a Federal award prior to the end of the period of performance due to the non-Federal entity’s mate- rial failure to comply with the Federal award terms and conditions, the HHS awarding agency must report the ter- mination to the OMB-designated integ- rity and performance system accessible through SAM (currently FAPIIS). (1) The information required under this paragraph (b) is not to be reported to the designated integrity and per- formance system until after the non- Federal en essible through SAM (currently FAPIIS). (1) The information required under this paragraph (b) is not to be reported to the designated integrity and per- formance system until after the non- Federal entity either— (i) Has exhausted its opportunities to object or challenge the decision, see § 75.374; or (ii) Has not, within 30 calendar days after being notified of the termination, informed the HHS awarding agency that it intends to appeal the HHS awarding agency’s decision to termi- nate. (2) If an HHS awarding agency, after entering information into the des- ignated integrity and performance sys- tem about a termination, subse- quently: (i) Learns that any of the informa- tion is erroneous, the HHS awarding agency must correct the information in the system within three business days; (ii) Obtains an update to that infor- mation that could be helpful to other Federal awarding agencies, the HHS awarding agency is strongly encour- aged to amend the information in the system to incorporate the update in a timely way; (3) HHS awarding agencies shall not post any information that will be made publicly available in the non-public segment of the designated integrity and performance system t the update in a timely way; (3) HHS awarding agencies shall not post any information that will be made publicly available in the non-public segment of the designated integrity and performance system that is cov- ered by a disclosure exemption under the Freedom of Information Act. If the non-Federal entity asserts within seven calendar days to the HHS award- ing agency who posted the information, that some of the information made publicly available is covered by a dis- closure exemption under the Freedom of Information Act, the HHS awarding agency who posted the information must remove the posting within seven calendar days of receiving the asser- tion. Prior to reposting the releasable information, the HHS agency must re- solve the issue in accordance with the agency’s Freedom of Information Act procedures. (c) When a Federal award is termi- nated or partially terminated, both the HHS awarding agency or pass-through agency and the non-Federal entity re- main responsible for compliance with the requirements of §§ 75.381 and 75.386. [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3017, Jan. 20, 2016; 85 FR 72911, Nov. 16, 2020] § 75.373 Notification of termination re- quirement. (a) with the requirements of §§ 75.381 and 75.386. [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3017, Jan. 20, 2016; 85 FR 72911, Nov. 16, 2020] § 75.373 Notification of termination re- quirement. (a) The HHS awarding agency or pass-through entity must provide to the non-Federal entity a notice of ter- mination. (b) If the Federal award is terminated for the non-Federal entity’s material failure to comply with the Federal statutes, regulations, or terms and conditions of the Federal award, the notification must state that— (1) The termination decision will be reported to the OMB-designated integ- rity and performance system accessible through SAM (currently FAPIIS); (2) The information will be available in the OMB-designated integrity and performance system for a period of five 291 § 75.374 45 CFR Subtitle A (10–1–24 Edition) years from the date of the termination, then archived; (3) HHS awarding agencies that con- sider making a Federal award to the non-Federal entity during that five year period must consider that infor- mation in judging whether the non- Federal entity is qualified to receive the Federal award, when the Federal share of the Federal award is expected to exceed th year period must consider that infor- mation in judging whether the non- Federal entity is qualified to receive the Federal award, when the Federal share of the Federal award is expected to exceed the simplified acquisition threshold over the period of perform- ance; (4) The non-Federal entity may com- ment on any information the OMB-des- ignated integrity and performance sys- tem contains about the non-Federal en- tity for future consideration by HHS awarding agencies. The non-Federal entity may submit comments to the awardee integrity and performance portal accessible through SAM (cur- rently CPARS). (5) Federal awarding agencies will consider non-Federal entity comments when determining whether the non- Federal entity is qualified for a future Federal award. (c) Upon termination of a Federal award, the HHS awarding agency must provide the information required under FFATA to the Federal Web site estab- lished to fulfill the requirements of FFATA, and update or notify any other relevant government-wide systems or entities of any indications of poor per- formance as required by 41 U.S.C. 417b and 31 U.S.C. 3321 and implementing guidance at 2 CFR part 77 (forthcoming at time of pub ant government-wide systems or entities of any indications of poor per- formance as required by 41 U.S.C. 417b and 31 U.S.C. 3321 and implementing guidance at 2 CFR part 77 (forthcoming at time of publication). See also the re- quirements for Suspension and Debar- ment at 2 CFR part 180. [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3017, Jan. 20, 2016] § 75.374 Opportunities to object, hear- ings, and appeals. (a) Upon taking any remedy for non- compliance, the HHS awarding agency must provide the non-Federal entity an opportunity to object and provide in- formation and documentation chal- lenging the suspension or termination action, in accordance with written processes and procedures published by the HHS awarding agency. The HHS awarding agency or pass-through enti- ty must comply with any requirements for hearings, appeals or other adminis- trative proceedings to which the non- Federal entity is entitled under any statute or regulation applicable to the action involved. (b) See also: (1) 42 CFR part 50, subpart D for the Public Health Service Appeals Proce- dures, (2) 45 CFR part 16 for the Procedures of the Departmental Appeals Board, and (3) 45 CFR part 95, subpart A for t also: (1) 42 CFR part 50, subpart D for the Public Health Service Appeals Proce- dures, (2) 45 CFR part 16 for the Procedures of the Departmental Appeals Board, and (3) 45 CFR part 95, subpart A for the time limits for states to file claims. (4) 45 CFR part 95, subpart E for the dis- allocation plan cost State approvals. § 75.375 Effects of suspension and ter- mination. Costs to the non-Federal entity re- sulting from obligations incurred by the non-Federal entity during a sus- pension or after termination of a Fed- eral award or subaward are not allow- able unless the HHS awarding agency or pass-through entity expressly au- thorizes them in the notice of suspen- sion or termination or subsequently. However, costs during suspension or after termination are allowable if: (a) The costs result from obligations which were properly incurred by the non-Federal entity before the effective date of suspension or termination, are not in anticipation of it; and (b) The costs would be allowable if the Federal award was not suspended or expired normally at the end of the period of performance in which the ter- mination takes effect. §§ 75.376–75.380 [Reserved] CLOSEOUT § 75.381 Closeout. The HH the Federal award was not suspended or expired normally at the end of the period of performance in which the ter- mination takes effect. §§ 75.376–75.380 [Reserved] CLOSEOUT § 75.381 Closeout. The HHS awarding agency or pass- through entity will close-out the Fed- eral award when it determines that all applicable administrative actions and all required work of the Federal award have been completed by the non-Fed- eral entity. This section specifies the actions the non-Federal entity and HHS awarding agency or pass-through entity must take to complete this process at the end of the period of per- formance. (a) The non-Federal entity must sub- mit, no later than 90 calendar days 292 Dept. of Health and Human Services § 75.391 after the end date of the period of per- formance, all financial, performance, and other reports as required by the terms and conditions of the Federal award. The HHS awarding agency or pass-through entity may approve ex- tensions when requested by the non- Federal entity. (b) Unless the HHS awarding agency or pass-through entity authorizes an extension, a non-Federal entity must liquidate all obligations incurred under the Federal award not later than 90 calen entity. (b) Unless the HHS awarding agency or pass-through entity authorizes an extension, a non-Federal entity must liquidate all obligations incurred under the Federal award not later than 90 calendar days after the end date of the period of performance as specified in the terms and conditions of the Federal award. (c) The HHS awarding agency or pass-through entity must make prompt payments to the non-Federal entity for allowable reimbursable costs under the Federal award being closed out. (d) The non-Federal entity must promptly refund any balances of unob- ligated cash that the HHS awarding agency or pass-through entity paid in advance or paid and that are not au- thorized to be retained by the non-Fed- eral entity for use in other projects. See OMB Circular A–129 and see § 75.391 for requirements regarding unreturned amounts that become delinquent debts. (e) Consistent with the terms and conditions of the Federal award, the HHS awarding agency or pass-through entity must make a settlement for any upward or downward adjustments to the Federal share of costs after close- out reports are received. (f) The non-Federal entity must ac- count for any real and personal prop- erty acq ettlement for any upward or downward adjustments to the Federal share of costs after close- out reports are received. (f) The non-Federal entity must ac- count for any real and personal prop- erty acquired with Federal funds or re- ceived from the Federal Government in accordance with §§ 75.317 through 75.323 and 75.343. (g) The HHS awarding agency or pass-through entity should complete all closeout actions for Federal awards no later than 180 calendar days after receipt and acceptance of all required final reports. §§ 75.382–75.385 [Reserved] POST-CLOSEOUT ADJUSTMENTS AND CONTINUING RESPONSIBILITIES § 75.386 Post-closeout adjustments and continuing responsibilities. (a) The closeout of a Federal award does not affect any of the following: (1) The right of the HHS awarding agency or pass-through entity to dis- allow costs and recover funds on the basis of a later audit or other review. The HHS awarding agency or pass- through entity must make any cost disallowance determination and notify the non-Federal entity within the record retention period. (2) The obligation of the non-Federal entity to return any funds due as a re- sult of later refunds, corrections, or other transactions i ify the non-Federal entity within the record retention period. (2) The obligation of the non-Federal entity to return any funds due as a re- sult of later refunds, corrections, or other transactions including final indi- rect cost rate adjustments. (3) Audit requirements in subpart F of this part. (4) Property management and dis- §§ 75.317 requirements in position through 75.323. (5) Records retention as required in §§ 75.361 through 75.365. (b) After closeout of the Federal award, a relationship created under the Federal award may be modified or ended in whole or in part with the con- sent of the HHS awarding agency or pass-through entity and the non-Fed- eral entity, provided the responsibil- ities of the non-Federal entity referred to in paragraph (a) of this section, in- cluding those for property management as applicable, are considered and provi- sions made for continuing responsibil- ities of the non-Federal entity, as ap- propriate. §§ 75.387–75.390 [Reserved] COLLECTION OF AMOUNTS DUE § 75.391 Collection of amounts due. (a) Any funds paid to the non-Federal entity in excess of the amount to which the non-Federal entity is finally determined to be entitled under the terms o UNTS DUE § 75.391 Collection of amounts due. (a) Any funds paid to the non-Federal entity in excess of the amount to which the non-Federal entity is finally determined to be entitled under the terms of the Federal award constitute a debt to the Federal Government. If not paid within 90 calendar days after demand, the HHS awarding agency may reduce the debt by: 293 § 75.400 45 CFR Subtitle A (10–1–24 Edition) (1) Making an administrative offset against other requests for reimburse- ments; (2) Withholding advance payments otherwise due to the non-Federal enti- ty; or (3) Other action permitted by Federal statute. (b) Except where otherwise provided by statutes or regulations, the HHS awarding agency will charge interest on an overdue debt in accordance with the Federal Claims Collection Stand- ards (31 CFR parts 900 through 999). The date from which interest is computed is not extended by litigation or the fil- ing of any form of appeal. (See also HHS Claims Collection regulations at 45 CFR part 30.) Subpart E—Cost Principles GENERAL PROVISIONS § 75.400 Policy guide. The application of these cost prin- ciples is based on the fundamental premises that: (a) The non-Federal entity is re CFR part 30.) Subpart E—Cost Principles GENERAL PROVISIONS § 75.400 Policy guide. The application of these cost prin- ciples is based on the fundamental premises that: (a) The non-Federal entity is respon- sible for the efficient and effective ad- ministration of the Federal award through the application of sound man- agement practices. (b) The non-Federal entity assumes responsibility for administering Fed- eral funds in a manner consistent with underlying agreements, program objec- tives, and the terms and conditions of the Federal award. (c) The non-Federal entity, in rec- ognition of its own unique combination of staff, facilities, and experience, has the primary responsibility for employ- ing whatever form of sound organiza- tion and management techniques may be necessary in order to assure proper and efficient administration of the Federal-award. (d) The application of these cost prin- ciples should require no significant changes in the internal accounting policies and practices of the non-Fed- eral entity. However, the accounting practices of the non-Federal entity must be consistent with these cost principles and support the accumula- tion of costs as required by the prin- of the non-Fed- eral entity. However, the accounting practices of the non-Federal entity must be consistent with these cost principles and support the accumula- tion of costs as required by the prin- ciples, and must provide for adequate documentation charged to the Federal award. support to costs (e) In reviewing, negotiating and ap- proving cost allocation plans or indi- rect cost proposals, the cognizant agen- cy for indirect costs should generally assure that the non-Federal entity is applying these cost accounting prin- ciples on a consistent basis during their review and negotiation of indirect cost proposals. Where wide variations exist in the treatment of a given cost item by the non-Federal entity, the reasonableness and equity of such treatments should be fully considered. See § 75.2 Indirect (facilities & administra- tive (F&A)) costs. (f) For non-Federal entities that edu- cate and engage students in research, the dual role of students as both train- ees and employees (including pre- and post-doctoral staff) contributing to the completion of Federal awards for re- search must be recognized in the appli- cation of these principles. (g) The non-Federal entity may not earn uding pre- and post-doctoral staff) contributing to the completion of Federal awards for re- search must be recognized in the appli- cation of these principles. (g) The non-Federal entity may not earn or keep any profit resulting from Federal financial assistance, unless ex- plicitly authorized by the terms and conditions of the Federal award. See also § 75.307. § 75.401 Application. (a) General. These principles must be used in determining the allowable costs of work performed by the non-Federal entity under Federal awards. These principles also must be used by the non-Federal entity as a guide in the pricing of fixed-price contracts and subcontracts where costs are used in determining the appropriate price. The principles do not apply to: (1) Arrangements under which Fed- eral financing is in the form of loans, scholarships, fellowships, traineeships, or other fixed amounts based on such items as education allowance or pub- lished tuition rates and fees. (2) For IHEs, capitation awards, which are awards based on case counts or number of beneficiaries according to the terms and conditions of the Federal award. (3) Fixed amount awards. See also §§ 75.2 Fixed amount awards and 75.20 ds, which are awards based on case counts or number of beneficiaries according to the terms and conditions of the Federal award. (3) Fixed amount awards. See also §§ 75.2 Fixed amount awards and 75.201. (4) Federal awards to hospitals (see appendix IX to part 75). 294 Dept. of Health and Human Services § 75.404 (5) Other awards under which the non-Federal entity is not required to account to the Federal Government for actual costs incurred. (b) Federal Contract. Where a Federal contract awarded to a non-Federal en- tity is subject to the Cost Accounting Standards (CAS), it incorporates the applicable CAS clauses, Standards, and CAS administration requirements per the 48 CFR Chapter 99 and 48 CFR part 30 (FAR part 30). CAS applies directly to the CAS-covered contract and the Cost Accounting Standards at 48 CFR parts 9904 or 9905 takes precedence over the cost principles in this subpart E with respect to the allocation of costs. When a contract with a non-Federal entity is subject to full CAS coverage, the allowability of certain costs under the cost principles will be affected by the allocation provisions of the Cost Accounting Standards (e.g., CAS 414–48 CFR 9904.414, and CAS 417–4 l CAS coverage, the allowability of certain costs under the cost principles will be affected by the allocation provisions of the Cost Accounting Standards (e.g., CAS 414–48 CFR 9904.414, and CAS 417–48 CFR 9904.417), apply rather the allowability provisions of § 75.449. In complying with those requirements, the non-Federal entity’s application of cost accounting practices for estimating, accumu- lating, and reporting costs for other Federal awards and other cost objec- tives under the CAS-covered contract still must be consistent with its cost accounting practices for the CAS-cov- ered contracts. In all cases, only one set of accounting records needs to be maintained for the allocation of costs by the non-Federal entity. (c) Exemptions. Some nonprofit orga- nizations, because of their size and na- ture of operations, can be considered to be similar to for-profit entities for pur- pose of applicability of cost principles. Such nonprofit organizations must op- erate under Federal cost principles ap- plicable to for-profit entities located at 48 CFR 31.2. A listing of these organiza- tions is contained in appendix VIII to part 75. Other organizations, as ap- proved by the cognizant ag inciples ap- plicable to for-profit entities located at 48 CFR 31.2. A listing of these organiza- tions is contained in appendix VIII to part 75. Other organizations, as ap- proved by the cognizant agency for in- direct costs, may be added from time to time. BASIC CONSIDERATIONS § 75.402 Composition of costs. Total cost. The total cost of a Federal award is the sum of the allowable di- rect and allocable indirect costs less any applicable credits. § 75.403 Factors affecting allowability of costs. Except where otherwise authorized by statute, costs must meet the fol- lowing general criteria in order to be allowable under Federal awards: (a) Be necessary and reasonable for the performance of the Federal award and be allocable thereto under these principles. (b) Conform to any limitations or ex- clusions set forth in these principles or in the Federal award as to types or amount of cost items. (c) Be consistent with policies and procedures that apply uniformly to both federally-financed and other ac- tivities of the non-Federal entity. (d) Be accorded consistent treatment. A cost may not be assigned to a Fed- eral award as a direct cost if any other cost incurred for the same purpose nd other ac- tivities of the non-Federal entity. (d) Be accorded consistent treatment. A cost may not be assigned to a Fed- eral award as a direct cost if any other cost incurred for the same purpose in like circumstances has been allocated to the Federal award as an indirect cost. (e) Be determined in accordance with generally accepted accounting prin- ciples (GAAP), except, for state and local governments and Indian tribes only, as otherwise provided for in this part. (f) Not be included as a cost or used to meet cost sharing or matching re- quirements of any other federally-fi- nanced program in either the current or a prior period. See also § 75.306(b). (g) Be adequately documented. See also §§ 75.300 through 75.309. § 75.404 Reasonable costs. A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances pre- vailing at the time the decision was made to incur the cost. The question of reasonableness is particularly impor- tant when the non-Federal entity is predominantly federally-funded. In de- termining reasonableness of a given cost, consideration must be given to: (a) Whether the cost is of a t particularly impor- tant when the non-Federal entity is predominantly federally-funded. In de- termining reasonableness of a given cost, consideration must be given to: (a) Whether the cost is of a type gen- erally recognized as ordinary and nec- essary for the operation of the non- 295 § 75.405 45 CFR Subtitle A (10–1–24 Edition) Federal entity or the proper and effi- cient performance of the Federal award. practices; (b) The restraints or requirements imposed by such factors as: Sound busi- ness bar- gaining; Federal, state, local, tribal, and other laws and regulations; and terms and conditions of the Federal award. arm’s-length (c) Market prices for comparable goods or services for the geographic area. (d) Whether the individuals con- cerned acted with prudence in the cir- cumstances considering their respon- sibilities to the non-Federal entity, its employees, where applicable its stu- dents or membership, the public at large, and the Federal Government. (e) Whether the non-Federal entity significantly deviates from its estab- lished practices and policies regarding the incurrence of costs, which may unjustifiably increase the Federal award’s cost. § 75.405 Allocable costs. ( al entity significantly deviates from its estab- lished practices and policies regarding the incurrence of costs, which may unjustifiably increase the Federal award’s cost. § 75.405 Allocable costs. (a) A cost is allocable to a particular Federal award or other cost objective if the goods or services involved are chargeable or assignable to that Fed- eral award or cost objective in accord- ance with relative benefits received. This standard is met if the cost: (1) Is incurred specifically for the Federal award; (2) Benefits both the Federal award and other work of the non-Federal en- tity and can be distributed in propor- tions that may be approximated using reasonable methods; and (3) Is necessary to the overall oper- ation of the non-Federal entity and is assignable in part to the Federal award in accordance with the principles in this subpart. (b) All activities which benefit from the non-Federal entity’s indirect (F&A) cost, including unallowable activities and donated services by the non-Fed- eral entity or third parties, will receive an appropriate allocation of indirect costs. (c) Any cost allocable to a particular Federal award under the principles pro- vided for in this pa the non-Fed- eral entity or third parties, will receive an appropriate allocation of indirect costs. (c) Any cost allocable to a particular Federal award under the principles pro- vided for in this part may not be charged to other Federal awards to overcome fund deficiencies, to avoid re- strictions imposed by Federal statutes, regulations, or terms and conditions of the Federal awards, or for other rea- sons. However, this prohibition would not preclude the non-Federal entity from shifting costs that are allowable under two or more Federal awards in accordance with existing Federal stat- utes, regulations, or the terms and con- ditions of the Federal awards. (d) Direct cost allocation principles. If a cost benefits two or more projects or activities in proportions that can be determined without undue effort or cost, the cost must be allocated to the projects based on the proportional ben- efit. If a cost benefits two or more projects or activities in proportions that cannot be determined because of the interrelationship of the work in- volved, then, notwithstanding para- graph (c) of this section, the costs may be allocated or transferred to bene- fitted projects on any reasonable ned because of the interrelationship of the work in- volved, then, notwithstanding para- graph (c) of this section, the costs may be allocated or transferred to bene- fitted projects on any reasonable docu- mented basis. Where the purchase of equipment or other capital asset is spe- cifically authorized under a Federal award, the costs are assignable to the Federal award regardless of the use that may be made of the equipment or other capital asset involved when no longer needed for the purpose for which it was originally required. See also §§ 75.317 through 75.323 and 75.439. (e) If the contract is subject to CAS, costs must be allocated to the contract pursuant to the Cost Accounting Standards. To the extent that CAS is applicable, the allocation of costs in accordance with CAS takes precedence over the allocation provisions in this part. § 75.406 Applicable credits. (a) Applicable credits refer to those receipts or reduction-of-expenditure- type transactions that offset or reduce expense items allocable to the Federal award as direct or indirect (F&A) costs. Examples of such transactions are: Purchase discounts, rebates or allow- ances, recoveries or indemnities on losses, insur pense items allocable to the Federal award as direct or indirect (F&A) costs. Examples of such transactions are: Purchase discounts, rebates or allow- ances, recoveries or indemnities on losses, insurance refunds or rebates, and adjustments of overpayments or erroneous charges. To the extent that such credits accruing to or received by the non-Federal entity relate to allow- able costs, they must be credited to the 296 Dept. of Health and Human Services § 75.408 Federal award either as a cost reduc- tion or cash refund, as appropriate. (b) In some instances, the amounts received from the Federal Government to finance activities or service oper- ations of the non-Federal entity should be treated as applicable credits. Spe- cifically, the concept of netting such credit items (including any amounts used to meet cost sharing or matching requirements) must be recognized in determining the rates or amounts to be charged to the Federal award. (See §§ 75.436 and 75.468, for areas of poten- tial application in the matter of Fed- eral financing of activities.) § 75.407 Prior written approval (prior approval). (a) Under any given Federal award, the reasonableness and allocability of certain i l application in the matter of Fed- eral financing of activities.) § 75.407 Prior written approval (prior approval). (a) Under any given Federal award, the reasonableness and allocability of certain items of costs may be difficult to determine. In order to avoid subse- quent disallowance or dispute based on unreasonableness or non-allocability, the non-Federal entity may seek the prior written approval of the cognizant agency for indirect costs or the HHS awarding agency in advance of the in- currence of special or unusual costs. Prior written approval should include the timeframe or scope of the agree- ment. The absence of prior written ap- proval on any element of cost will not, in itself, affect the reasonableness or allocability of that element, unless prior approval is specifically required for allowability as described under cer- tain circumstances in the following sections of this part: (1) § 75.201 Use of grant agreements (including fixed amount awards), coop- erative agreements, and contracts, paragraph (b)(5); (2) § 75.306 Cost sharing or matching; (3) § 75.307 Program income; (4) § 75.308 Revision of budget and pro- gram plans; (5) § 75.309 Period of performance and avai s, and contracts, paragraph (b)(5); (2) § 75.306 Cost sharing or matching; (3) § 75.307 Program income; (4) § 75.308 Revision of budget and pro- gram plans; (5) § 75.309 Period of performance and availability of funds; (6) § 75.318 Real property; (7) § 75.320 Equipment; (8) § 75.353 Fixed amount subawards; (9) § 75.413 Direct costs, paragraph (c); (10) § 75.430 Compensation—personal services, paragraph (h); (11) benefits; § 75.431 Compensation—fringe (12) § 75.438 Entertainment costs; (13) § 75.439 Equipment and other cap- ital expenditures; (14) § 75.440 Exchange rates; (15) § 75.441 Fines, penalties, damages and other settlements; (16) § 75.442 Fund raising and invest- ment management costs; (17) § 75.445 Goods or services for per- sonal use; (18) § 75.447 Insurance and indem- nification; (19) § 75.454 Memberships, subscrip- tions, and professional activity costs, paragraph (c); (20) § 75.455 Organization costs; (21) § 75.456 Participant support costs; (22) § 75.458 Pre-award costs; (23) § 75.462 Rearrangement and recon- version costs; (24) § 75.467 Selling and marketing costs; (25) § 75.470 Taxes (including Value Added Tax) paragraph (c); and (26) § 75.474 Travel costs. (b) A re (23) § 75.462 Rearrangement and recon- version costs; (24) § 75.467 Selling and marketing costs; (25) § 75.470 Taxes (including Value Added Tax) paragraph (c); and (26) § 75.474 Travel costs. (b) A request by a subrecipient for prior approval will be addressed in writing to the recipient. The recipient will promptly review such request and shall approve or disapprove the request in writing. A recipient will not approve any budget or project revision which is inconsistent with the purpose or terms and conditions of the Federal-award to the recipient. If the revision, requested by the subrecipient would result in a change to the recipient’s approved project which requires Federal prior approval, the recipient will obtain the HHS awarding agency’s approval before approving the subrecipient’s request. (c) For cost-reimbursement contracts under the FAR, the recipient shall ob- tain prior written approval in accord- ance with FAR 52.244–2. § 75.408 Limitation on allowance of costs. The Federal award may be subject to statutory requirements that limit the allowability of costs. When the max- imum amount allowable under a limi- tation is less than the total amount de- termined in accordanc al award may be subject to statutory requirements that limit the allowability of costs. When the max- imum amount allowable under a limi- tation is less than the total amount de- termined in accordance with the prin- ciples in this part, the amount not re- coverable under the Federal award may not be charged to the Federal award. 297 § 75.409 45 CFR Subtitle A (10–1–24 Edition) § 75.409 Special considerations. In addition to the basic consider- ations regarding the allowability of costs highlighted in this subtitle, other subtitles in this part describe special considerations and requirements appli- cable to states, local governments, In- dian tribes, and IHEs. In addition, cer- tain provisions among the items of cost in this subpart are only applicable to certain types of non-Federal entities, as specified in the following sections: (a) Direct and Indirect (F&A) Costs (§§ 75.412 through 75.415); (b) Special Considerations for States, Local Governments and Indian Tribes (§§ 75.416 and 75.417); and (c) Special Considerations for Insti- tutions of Higher Education (§§ 75.418 and 75.419). [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3017, Jan. 20, 2016] § 75.410 Collection costs. 75.417); and (c) Special Considerations for Insti- tutions of Higher Education (§§ 75.418 and 75.419). [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3017, Jan. 20, 2016] § 75.410 Collection costs. of unallowable Payments made for costs determined to be unallowable by either the HHS awarding agency, cognizant agency for indirect costs, or pass-through entity, either as direct or indirect costs, must be refunded (including interest) to the Federal Government in accordance with instructions from the Federal agency that determined the costs are unallowable unless Federal statute or regulation directs otherwise. See also subpart D of this part, §§ 75.300 through 75.309. § 75.411 Adjustment of previously ne- gotiated indirect (F&A) cost rates containing unallowable costs. (a) Negotiated indirect (F&A) cost rates based on a proposal later found to have included costs that: (1) Are unallowable as specified by Federal statutes, regulations or the terms and conditions of a Federal award; or (2) Are unallowable because they are not allocable to the Federal award(s), must be adjusted, or a refund must be made, in accordance with the require- ments of this section. These adjust- ments or ref 2) Are unallowable because they are not allocable to the Federal award(s), must be adjusted, or a refund must be made, in accordance with the require- ments of this section. These adjust- ments or refunds are designed to cor- rect the proposals used to establish the rates and do not constitute a reopening of the rate negotiation. The adjust- ments or refunds will be made regard- less of the type of rate negotiated (pre- determined, fixed, or provi- sional). final, (b) For rates covering a future fiscal year of the non-Federal entity, the un- allowable costs will be removed from the indirect (F&A) cost pools and the rates appropriately adjusted. (c) For rates covering a past period, the Federal share of the unallowable costs will be computed for each year involved and a cash refund (including interest chargeable in accordance with applicable regulations) will be made to the Federal Government. If cash re- funds are made for past periods covered by provisional or fixed rates, appro- priate adjustments will be made when the rates are finalized to avoid dupli- cate recovery of the unallowable costs by the Federal Government. (d) For rates covering the current pe- riod, either a rate ad te adjustments will be made when the rates are finalized to avoid dupli- cate recovery of the unallowable costs by the Federal Government. (d) For rates covering the current pe- riod, either a rate adjustment or a re- fund, as described in paragraphs (b) and (c) of this section, must be required by the cognizant agency for indirect costs. The choice of method must be at the discretion of the cognizant agency for indirect costs, based on its judgment as to which method would be most prac- tical. (e) The amount or proportion of unal- lowable costs included in each year’s rate will be assumed to be the same as the amount or proportion of unallow- able costs included in the base year proposal used to establish the rate. DIRECT AND INDIRECT (F&A) COSTS § 75.412 Classification of costs. There is no universal rule for classifying certain costs as either di- rect or indirect (F&A) under every ac- counting system. A cost may be direct with respect to some specific service or function, but indirect with respect to the Federal award or other final cost objective. Therefore, it is essential that each item of cost incurred for the same purpose be treated consistently in like circumstances eithe ect with respect to the Federal award or other final cost objective. Therefore, it is essential that each item of cost incurred for the same purpose be treated consistently in like circumstances either as a direct or an indirect (F&A) cost in order to avoid possible double-charging of Fed- eral awards. Guidelines for determining direct and indirect (F&A) costs charged to Federal awards are provided in this subpart. 298 Dept. of Health and Human Services § 75.414 § 75.413 Direct costs. (a) General. Direct costs are those costs that can be identified specifically with a particular final cost objective, such as a Federal award, or other inter- nally or externally funded activity, or that can be directly assigned to such activities relatively easily with a high degree of accuracy. Costs incurred for the same purpose in like circumstances must be treated consistently as either direct or indirect (F&A) costs. See also § 75.405. (b) Application to Federal awards. Identification with the Federal award rather than the nature of the goods and services involved is the determining factor in distinguishing direct from in- direct (F&A) costs of Federal awards. Typical costs charged directly to a al award rather than the nature of the goods and services involved is the determining factor in distinguishing direct from in- direct (F&A) costs of Federal awards. Typical costs charged directly to a Federal award are the compensation of employees who work on that award, their related fringe benefit costs, the costs of materials and other items of expense incurred for the Federal award. If directly related to a specific award, certain costs that otherwise would be treated as indirect costs may also in- clude extraordinary utility consump- tion, the cost of materials supplied from stock or services rendered by spe- cialized facilities or other institutional service operations. (c) The salaries of administrative and clerical staff should normally be treat- ed as indirect (F&A) costs. Direct charging of these costs may be appro- priate only if all of the following condi- tions are met: (1) Administrative or clerical serv- ices are integral to a project or activ- ity; (2) Individuals involved can be spe- cifically identified with the project or activity; (3) Such costs are explicitly included in the budget or have the prior written approval of the Federal awarding agen- cy; and (4) Th lved can be spe- cifically identified with the project or activity; (3) Such costs are explicitly included in the budget or have the prior written approval of the Federal awarding agen- cy; and (4) The costs are not also recovered as indirect costs. (d) Minor items. Any direct cost of minor amount may be treated as an in- direct (F&A) cost for reasons of practi- cality where such accounting treat- ment for that item of cost is consist- ently applied to all Federal and non- Federal cost objectives. (e) The costs of certain activities are not allowable as charges to Federal awards. However, even though these costs are unallowable for purposes of computing charges to Federal awards, they nonetheless must be treated as di- rect costs for purposes of determining indirect (F&A) cost rates and be allo- cated their equitable share of the non- Federal entity’s indirect costs if they represent activities which: (1) Include the salaries of personnel, (2) Occupy space, and (3) Benefit from the non-Federal enti- ty’s indirect (F&A) costs. (f) For nonprofit organizations, the costs of activities performed by the non-Federal entity primarily as a serv- ice to members, clients, or the general publ -Federal enti- ty’s indirect (F&A) costs. (f) For nonprofit organizations, the costs of activities performed by the non-Federal entity primarily as a serv- ice to members, clients, or the general public when significant and necessary to the non-Federal entity’s mission must be treated as direct costs whether or not allowable, and be allocated an equitable share of indirect (F&A) costs. Some examples of these types of activi- ties include: (1) Maintenance of membership rolls, subscriptions, publications, and related functions. See also § 75.454. (2) Providing services and informa- tion to members, legislative or admin- istrative bodies, or the public. See also §§ 75.454 and 75.450. (3) Promotion, lobbying, and other forms of public relations. See also §§ 75.421 and 75.450. (4) Conferences except those held to conduct the general administration of the non-Federal entity. See also § 75.432. (5) Maintenance, protection, and in- vestment of special funds not used in operation of the non-Federal entity. See also § 75.442. (6) Administration of group benefits on behalf of members or clients, in- cluding life and hospital insurance, an- nuity or retirement plans, and finan- cial aid. See a eral entity. See also § 75.442. (6) Administration of group benefits on behalf of members or clients, in- cluding life and hospital insurance, an- nuity or retirement plans, and finan- cial aid. See also § 75.431. § 75.414 Indirect (F&A) costs. (a) Facilities and Administration Classi- fication. For major IHEs and major nonprofit organizations, indirect (F&A) costs must be classified within two broad categories: ‘‘Facilities’’ and ‘‘Administration.’’ ‘‘Facilities’’ is de- fined as depreciation on buildings, equipment and capital improvement, 299 § 75.414 45 CFR Subtitle A (10–1–24 Edition) interest on debt associated with cer- tain buildings, equipment and capital improvements, and operations and maintenance expenses. ‘‘Administra- tion’’ is defined as general administra- tion and general expenses such as the director’s office, accounting, personnel and all other types of expenditures not listed specifically under one of the sub- categories of ‘‘Facilities’’ (including cross allocations from other pools, where applicable). For nonprofit orga- nizations, library expenses are included in the ‘‘Administration’’ category; for institutions of higher education, they are included in the ‘ s from other pools, where applicable). For nonprofit orga- nizations, library expenses are included in the ‘‘Administration’’ category; for institutions of higher education, they are included in the ‘‘Facilities’’ cat- egory. Major IHEs are defined as those required to use the Standard Format for Submission as noted in appendix III to part 75.C. 11. Major nonprofit organi- zations are those which receive more than $10 million dollars in direct Fed- eral funding. (b) Diversity of nonprofit organizations. Because of the diverse characteristics and accounting practices of nonprofit organizations, it is not possible to specify the types of cost which may be classified as indirect (F&A) cost in all situations. Identification with a Fed- eral award rather than the nature of the goods and services involved is the determining factor in distinguishing direct from indirect (F&A) costs of Federal awards. However, typical ex- amples of indirect (F&A) cost for many nonprofit organizations may include depreciation on buildings and equip- ment, the costs of operating and main- taining facilities, and general adminis- tration and general expenses, such as the salaries and expenses of executive off de depreciation on buildings and equip- ment, the costs of operating and main- taining facilities, and general adminis- tration and general expenses, such as the salaries and expenses of executive officers, personnel administration, and accounting. (c) Federal Agency Acceptance of Nego- tiated Indirect Cost Rates. (See also § 75.306.) (1) The negotiated rates must be ac- cepted by all Federal awarding agen- cies. An HHS awarding agency may use a rate different from the negotiated rate for a class of Federal awards or a single Federal award only when re- quired by Federal statute or regula- tion, or when approved by a Federal awarding agency head or delegate based on documented justification as described in paragraph (c)(3) of this section. (i) Indirect costs on Federal awards for training are limited to a fixed rate of eight percent of MTDC exclusive of tuition and related fees, direct expendi- tures for equipment, and subawards in excess of $25,000; (ii) Indirect costs on Federal awards to foreign organizations and foreign public entities performed fully outside of the territorial limits of the U.S. may be paid to support the costs of compli- ance with federal requirements at a fi ds to foreign organizations and foreign public entities performed fully outside of the territorial limits of the U.S. may be paid to support the costs of compli- ance with federal requirements at a fixed rate of eight percent of MTDC ex- clusive of tuition and related fees, di- rect expenditures for equipment, and subawards in excess of $25,000; and (iii) Negotiated indirect costs may be paid to the American University, Bei- rut, and the World Health Organiza- tion. (2) The HHS awarding agency head or delegate must notify OMB of any ap- proved deviations. (3) The HHS awarding agency must implement, and make publicly avail- able, the policies, procedures and gen- eral decision making criteria that their programs will follow to seek and justify deviations from negotiated rates. (4) As required under § 75.203(c), the HHS awarding agency must include in the notice of funding opportunity the policies relating to indirect cost rate reimbursement, matching, or cost share as approved. See also appendix I.C.2 and D.6 of this part. As appro- priate, the HHS agency should incor- porate discussion of these policies into their outreach activities with non-Fed- eral entities prior to the posting appendix I.C.2 and D.6 of this part. As appro- priate, the HHS agency should incor- porate discussion of these policies into their outreach activities with non-Fed- eral entities prior to the posting of a notice of funding opportunity. (d) Pass-through entities are subject to the requirements in § 75.352(a)(4). (e) Requirements for development and submission of indirect (F&A) cost rate proposals and cost allocation plans are contained in appendices III– VII, and appendix IX as follows: (1) Appendix III to Part 75—Indirect (F&A) Costs Identification and Assign- ment, and Rate Determination for In- stitutions of Higher Education (IHEs); (2) Appendix IV to Part 75—Indirect (F&A) Costs Identification and Assign- ment, and Rate Determination for Non- profit Organizations; 300 Dept. of Health and Human Services § 75.415 (3) Appendix V to Part 75—State/ Local Governmentwide Central Service Cost Allocation Plans; (4) Appendix VI to Part 75—Public Assistance Cost Allocation Plans; (5) Appendix VII to Part 75—States and Local Government and Indian Tribe Indirect Cost Proposals; and (6) Appendix IX to Part 75—Prin- ciples for Determining Costs Applica- ble to Research and Development Under G VII to Part 75—States and Local Government and Indian Tribe Indirect Cost Proposals; and (6) Appendix IX to Part 75—Prin- ciples for Determining Costs Applica- ble to Research and Development Under Grants and Contracts with Hos- pitals. (f) In addition to the procedures out- lined in the appendices in paragraph (e) of this section, any non-Federal entity that has never received a negotiated indirect cost rate, except for those non- Federal entities described in para- graphs (c)(1)(i) and (ii) of this section and section (D)(1)(b) of appendix VII to this part, may elect to charge a de minimis rate of 10% of modified total direct costs (MTDC) which may be used indefinitely. As described in § 75.403, costs must be consistently charged as either indirect or direct costs, but may not be double charged or inconsistently charged as both. If chosen, this meth- odology once elected must be used con- sistently for all Federal awards until such time as a non-Federal entity chooses to negotiate for a rate, which the non-Federal entity may apply to do at any time. (g) Any non-Federal entity that has a current federally negotiated indirect cost rate may apply for a one-time ex- tension of the r or a rate, which the non-Federal entity may apply to do at any time. (g) Any non-Federal entity that has a current federally negotiated indirect cost rate may apply for a one-time ex- tension of the rates in that agreement for a period of up to four years. This extension will be subject to the review and approval of the cognizant agency for indirect costs. If an extension is granted the non-Federal entity may not request a rate review until the ex- tension period ends. At the end of the 4-year extension, the non-Federal enti- ty must re-apply to negotiate a rate. Subsequent one-time extensions (up to four years) are permitted if a renegoti- ation is completed between each exten- sion request. [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3017, Jan. 20, 2016; 81 FR 89395, Dec. 12, 2016; 86 FR 2278, Jan. 12, 2021] § 75.415 Required certifications. Required certifications include: (a) To assure that expenditures are proper and in accordance with the terms and conditions of the Federal award and approved project budgets, the annual and final fiscal reports or vouchers requesting payment under the agreements must include a certifi- cation, signed by an official who is au- thorized to award and approved project budgets, the annual and final fiscal reports or vouchers requesting payment under the agreements must include a certifi- cation, signed by an official who is au- thorized to legally bind the non-Fed- eral entity, which reads as follows: ‘‘By signing this report, I certify to the best of my knowledge and belief that the re- port is true, complete, and accurate, and the expenditures, disbursements and cash receipts are for the purposes and objectives set forth in the terms and conditions of the Federal award. I am aware that any false, fictitious, or fraudulent information, or the omis- sion of any material fact, may subject me to criminal, civil or administrative penalties for fraud, false statements, false claims or otherwise. (U.S. Code Title 18, Section 1001 and Title 31, Sec- tions 3729–3730 and 3801–3812).’’ (b) Certification of cost allocation plan or indirect (F&A) cost rate pro- posal. Each cost allocation plan or in- direct (F&A) cost rate proposal must comply with the following: (1) A proposal to establish a cost allo- cation plan or an indirect (F&A) cost rate, whether submitted to a Federal cognizant agency for indirect costs or maintained on f st comply with the following: (1) A proposal to establish a cost allo- cation plan or an indirect (F&A) cost rate, whether submitted to a Federal cognizant agency for indirect costs or maintained on file by the non-Federal entity, must be certified by the non- Federal entity using the Certificate of Cost Allocation Plan or Certificate of Indirect Costs as set forth in appen- dices III through VII, and appendix IX. The certificate must be signed on be- half of the non-Federal entity by an in- dividual at a level no lower than vice president or chief financial officer of the non-Federal entity that submits the proposal. (2) Unless the non-Federal entity has elected the option under § 75.414(f), the Federal Government may either dis- allow all indirect (F&A) costs or uni- laterally establish such a plan or rate when the non-Federal entity fails to submit a certified proposal for estab- lishing such a plan or rate in accord- ance with the requirements. Such a plan or rate may be based upon audited historical data or such other data that have been furnished to the cognizant agency for indirect costs and for which 301 § 75.416 45 CFR Subtitle A (10–1–24 Edition) it can be demonstrated th audited historical data or such other data that have been furnished to the cognizant agency for indirect costs and for which 301 § 75.416 45 CFR Subtitle A (10–1–24 Edition) it can be demonstrated that all unal- lowable costs have been excluded. When a cost allocation plan or indirect cost rate is unilaterally established by the Federal Government because the non-Federal entity failed to submit a certified proposal, the plan or rate es- tablished will be set to ensure that po- tentially unallowable costs will not be reimbursed. (c) Certifications by non-profit orga- nizations as appropriate that they did not meet the definition of a major non- profit organization as defined in § 75.414(a). (d) See also § 75.450 for another re- quired certification. SPECIAL CONSIDERATIONS FOR STATES, LOCAL GOVERNMENTS AND INDIAN TRIBES § 75.416 Cost allocation plans and indi- rect cost proposals. (a) For states, local governments and Indian tribes, certain services, such as motor pools, computer centers, pur- chasing, accounting, etc., are provided to operating agencies on a centralized basis. Since Federal awards are per- formed within the individual operating agencies, there needs to be a process s, pur- chasing, accounting, etc., are provided to operating agencies on a centralized basis. Since Federal awards are per- formed within the individual operating agencies, there needs to be a process whereby these central service costs can be identified and assigned to benefitted activities on a reasonable and con- sistent basis. The central service cost allocation plan provides that process. (b) Individual operating agencies (governmental department or agency), normally charge Federal awards for in- direct costs through an indirect cost rate. A separate indirect cost rate(s) proposal for each operating agency is usually necessary to claim indirect costs under Federal-awards. Indirect costs include: (1) The indirect costs originating in each department or agency of the gov- ernmental unit carrying out Federal awards; and (2) The costs of central governmental services distributed through the cen- tral service cost allocation plan and not otherwise treated as direct costs. (c) The requirements for development and submission of cost allocation plans (for central service costs and public as- sistance programs) and indirect cost rate proposals are contained in appen- dices IV, V and VI rements for development and submission of cost allocation plans (for central service costs and public as- sistance programs) and indirect cost rate proposals are contained in appen- dices IV, V and VI to this part. § 75.417 Interagency service. The cost of services provided by one agency to another within the govern- mental unit may include allowable di- rect costs of the service plus a pro- rated share of indirect costs. A stand- ard indirect cost allowance equal to ten percent of the direct salary and wage cost of providing the service (ex- cluding overtime, shift premiums, and fringe benefits) may be used in lieu of determining the actual indirect costs of the service. These services do not in- clude centralized services included in central service cost allocation plans as described in appendix V to this part. SPECIAL CONSIDERATIONS FOR INSTITUTIONS OF HIGHER EDUCATION § 75.418 Costs incurred by states and local governments. Costs incurred or paid by a state or local government on behalf of its IHEs for fringe benefit programs, such as pension costs and FICA and any other costs specifically incurred on behalf of, and in direct benefit to, the IHEs, are allowable costs of such IH ehalf of its IHEs for fringe benefit programs, such as pension costs and FICA and any other costs specifically incurred on behalf of, and in direct benefit to, the IHEs, are allowable costs of such IHEs whether or not these costs are recorded in the accounting records of the institutions, subject to the following: (a) The costs meet the requirements of §§ 75.402 through 75.411; (b) The costs are properly supported by approved cost allocation plans in ac- cordance with applicable Federal cost accounting principles in this part; and (c) The costs are not otherwise borne directly or indirectly by the Federal Government. § 75.419 Cost accounting standards and disclosure statement. (a) An IHE that receives aggregate Federal awards totaling $50 million or more in Federal awards subject to this part in its most recently completed fis- cal year must comply with the Cost Accounting Standards Board’s cost ac- counting standards located at 48 CFR 9905.501, 9905.502, 9905.505, and 9905.506. CAS-covered contracts awarded to the IHEs are subject to the CAS require- ments at 48 CFR parts 9900 through 9999 and 48 CFR part 30 (FAR part 30). 302 Dept. of Health and Human Services § 75.420 (b) Disclo vered contracts awarded to the IHEs are subject to the CAS require- ments at 48 CFR parts 9900 through 9999 and 48 CFR part 30 (FAR part 30). 302 Dept. of Health and Human Services § 75.420 (b) Disclosure statement. An IHE that receives aggregate Federal awards to- taling $50 million or more subject to this part during its most recently com- pleted fiscal year must disclose their cost accounting practices by filing a Disclosure Statement (DS–2), which is reproduced in appendix III to part 75. With the approval of the cognizant agency for indirect costs, an IHE may meet the DS–2 submission by submit- ting the DS–2 for each business unit that received $50 million or more in Federal awards. (1) The DS–2 must be submitted to the cognizant agency for indirect costs with a copy to the IHE’s cognizant agency for audit. (2) An IHE is responsible for main- taining an accurate DS–2 and com- plying with disclosed cost accounting practices. An IHE must file amend- ments to the DS–2 to the cognizant agency for indirect costs six months in advance of a disclosed practice being changed to comply with a new or modi- fied standard, or when a practice is changed for other reasons. An IHE may proceed t agency for indirect costs six months in advance of a disclosed practice being changed to comply with a new or modi- fied standard, or when a practice is changed for other reasons. An IHE may proceed with implementing the change only if it has not been notified by the Federal cognizant agency for indirect costs that either a longer period will be needed for review or there are concerns with the potential change within the six months period. Amendments of a DS–2 may be submitted at any time. Resubmission of a complete, updated DS–2 is discouraged except when there are extensive changes to disclosed practices. (3) Cost and funding adjustments. Cost adjustments must be made by the cog- nizant agency for indirect costs if an IHE fails to comply with the cost poli- cies in this part or fails to consistently follow its established or disclosed cost accounting practices when estimating, accumulating or reporting the costs of Federal awards, and the aggregate cost impact on Federal awards is material. The cost adjustment must normally be made on an aggregate basis for all af- fected Federal awards through an ad- justment of the IHE’s future F&A costs rates or other means considered appro- material. The cost adjustment must normally be made on an aggregate basis for all af- fected Federal awards through an ad- justment of the IHE’s future F&A costs rates or other means considered appro- priate by the cognizant agency for indi- rect costs. Under the terms of CAS cov- ered contracts, adjustments in the amount of funding provided may also be required when the estimated pro- posal costs were not determined in ac- cordance with established cost ac- counting practices. (4) Overpayments. Excess amounts paid in the aggregate by the Federal Government under Federal awards due to a noncompliant cost accounting practice used to estimate, accumulate, or report costs must be credited or re- funded, as deemed appropriate by the cognizant agency for indirect costs. In- terest applicable to the excess amounts paid in the aggregate during the period of noncompliance must also be deter- mined and collected in accordance with applicable HHS agency regulations. (5) Compliant cost accounting practice changes. Changes from one compliant cost accounting practice to another compliant practice that are approved by the cognizant agency for indirect costs may require cost adjustments if the ch practice changes. Changes from one compliant cost accounting practice to another compliant practice that are approved by the cognizant agency for indirect costs may require cost adjustments if the change has a material effect on Federal awards and the changes are deemed appropriate by the cognizant agency for indirect costs. (6) Responsibilities. The cognizant agency for indirect cost must: (i) Determine cost adjustments for all Federal awards in the aggregate on behalf of the Federal Government. Ac- tions of the cognizant agency for indi- rect cost in making cost adjustment determinations must be coordinated with all affected HHS awarding agen- cies to the extent necessary. (ii) Prescribe guidelines and establish internal procedures to promptly deter- mine on behalf of the Federal Govern- ment that a DS–2 adequately discloses the IHE’s cost accounting practices and that the disclosed practices are compliant with applicable CAS and the requirements of this part. (iii) Distribute to all affected Federal awarding agencies any DS–2 determina- tion of adequacy or noncompliance. [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3017, Jan. 20, 2016] GENERAL PROVISIONS FOR SELECTED ITEMS l affected Federal awarding agencies any DS–2 determina- tion of adequacy or noncompliance. [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3017, Jan. 20, 2016] GENERAL PROVISIONS FOR SELECTED ITEMS OF COST § 75.420 Considerations for selected items of cost. This section provides principles to be applied in establishing the allowability 303 § 75.421 45 CFR Subtitle A (10–1–24 Edition) of certain items involved in deter- mining cost, in addition to the require- ments of §§ 75.402 through 75.411. These principles apply whether or not a par- ticular item of cost is properly treated as direct cost or indirect (F&A) cost. Failure to mention a particular item of cost is not intended to imply that it is either allowable or unallowable; rath- er, determination as to allowability in each case should be based on the treat- ment provided for similar or related items of cost, and based on the prin- ciples described in §§ 75.402 through 75.411. In case of a discrepancy between the provisions of a specific Federal award and the provisions below, the Federal award governs. Criteria out- lined in § 75.403 must be applied in de- termining also § 75.102. allowability. See § 75.421 Advertising and p specific Federal award and the provisions below, the Federal award governs. Criteria out- lined in § 75.403 must be applied in de- termining also § 75.102. allowability. See § 75.421 Advertising and public rela- tions. (a) The term advertising costs means the costs of advertising media and cor- ollary administrative costs. Adver- tising media include magazines, news- papers, radio and television, direct mail, exhibits, electronic or computer transmittals, and the like. (b) The only allowable advertising costs are those which are solely for: (1) The recruitment of personnel re- quired by the non-Federal entity for performance of a Federal award (See also § 75.463); (2) The procurement of goods and services for the performance of a Fed- eral award; (3) The disposal of scrap or surplus materials acquired in the performance of a Federal award except when non- Federal entities are reimbursed for dis- posal costs at a predetermined amount; or (4) Program outreach and other spe- cific purposes necessary to meet the re- quirements of the Federal award. (c) The term ‘‘public relations’’ in- cludes community relations and means those activities dedicated to maintain- ing the image of the non s necessary to meet the re- quirements of the Federal award. (c) The term ‘‘public relations’’ in- cludes community relations and means those activities dedicated to maintain- ing the image of the non-Federal entity or maintaining or promoting under- standing and favorable relations with the community or public at large or any segment of the public. (1) Costs specifically required by the Federal award; (2) Costs of communicating with the public and press pertaining to specific activities or accomplishments which result from performance of the Federal award (these costs are considered nec- essary as part of the outreach effort for the Federal award); or (3) Costs of conducting general liai- son with news media and government public relations officers, to the extent that such activities are limited to com- munication and liaison necessary to keep the public informed on matters of public concern, such as notices of fund- ing opportunities, financial matters, etc. (e) Unallowable advertising and pub- lic relations costs include the fol- lowing: (1) All advertising and public rela- tions costs other than as specified in paragraphs (b) and (d) of this section; (2) Costs of meetings, conv ng and pub- lic relations costs include the fol- lowing: (1) All advertising and public rela- tions costs other than as specified in paragraphs (b) and (d) of this section; (2) Costs of meetings, conventions, convocations, or other events related to other activities of the entity (see also § 75.432), including: (i) Costs of displays, demonstrations, and exhibits; (ii) Costs of meeting rooms, hospi- tality suites, and other special facili- ties used in conjunction with shows and other special events; and (iii) Salaries and wages of employees engaged in setting up and displaying exhibits, making demonstrations, and providing briefings; (3) Costs of promotional items and memorabilia, including models, gifts, and souvenirs; (4) Costs of advertising and public re- lations designed solely to promote the non-Federal entity. § 75.422 Advisory councils. Costs incurred by advisory councils or committees are unallowable unless authorized by statute, the HHS award- ing agency or as an indirect cost where allocable to Federal awards. See § 75.444, applicable to states, local gov- ernments and Indian tribes. § 75.423 Alcoholic beverages. (d) The only allowable public rela- Costs of alcoholic bev t where allocable to Federal awards. See § 75.444, applicable to states, local gov- ernments and Indian tribes. § 75.423 Alcoholic beverages. (d) The only allowable public rela- Costs of alcoholic beverages are unal- tions costs are: lowable. 304 Dept. of Health and Human Services § 75.430 § 75.424 Alumni/ae activities. Costs incurred by IHEs for, or in sup- port of, alumni/ae activities are unal- lowable. § 75.425 Audit services. (a) A reasonably proportionate share of the costs of audits required by, and performed in accordance with, the Sin- gle Audit Act Amendments of 1996 (31 U.S.C. 7501–7507), as implemented by re- quirements of this part, are allowable. However, the following audit costs are unallowable: (1) Any costs when audits required by the Single Audit Act and subpart F of this part—have not been conducted or have been conducted but not in accord- ance therewith; and (2) Any costs of auditing a non-Fed- eral entity that is exempted from hav- ing an audit conducted under the Sin- gle Audit Act and subpart F of this part because its expenditures under Federal awards are less than $750,000 during the non-Federal entity’s fiscal year. (b) The costs of a financial statement e Sin- gle Audit Act and subpart F of this part because its expenditures under Federal awards are less than $750,000 during the non-Federal entity’s fiscal year. (b) The costs of a financial statement audit of a non-Federal entity that does not currently have a Federal award may be included in the indirect cost pool for a cost allocation plan or indi- rect cost proposal. (c) Pass-through entities may charge Federal awards for the cost of agreed- upon-procedures engagements to mon- itor subrecipients (in accordance with subpart D of this part, §§ 75.351 through 75.353) which are exempted from the re- quirements of the Single Audit Act and subpart F of this part. This cost is al- lowable only if the agreed-upon-proce- dures engagements are: (1) Conducted in accordance with GAGAS attestation standards; (2) Paid for and arranged by the pass- through entity; and (3) Limited in scope to one or more of the following types of compliance re- quirements: activities allowed or unallowed; allowable costs/cost prin- ciples; eligibility; and reporting. § 75.426 Bad debts. Bad debts (debts which have been de- termined to be uncollectable), includ- ing losses (whether actual or esti- mated) arisin e costs/cost prin- ciples; eligibility; and reporting. § 75.426 Bad debts. Bad debts (debts which have been de- termined to be uncollectable), includ- ing losses (whether actual or esti- mated) arising from uncollectable ac- counts and other claims, are unallow- able. Related collection costs, and re- lated legal costs, arising from such debts after they have been determined to be uncollectable are also unallow- able. See also § 75.428. § 75.427 Bonding costs. (a) Bonding costs arise when the HHS awarding agency requires assurance against financial loss to itself or others by reason of the act or default of the non-Federal entity. They arise also in instances where the non-Federal entity requires similar assurance, including: Bonds as bid, performance, payment, advance payment, infringement, and fi- delity bonds for employees and offi- cials. (b) Costs of bonding required pursu- ant to the terms and conditions of the Federal award are allowable. (c) Costs of bonding required by the non-Federal entity in the general con- duct of its operations are allowable as an indirect cost to the extent that such bonding is in accordance with sound business practice and the rates and pre- miums -Federal entity in the general con- duct of its operations are allowable as an indirect cost to the extent that such bonding is in accordance with sound business practice and the rates and pre- miums are reasonable under the cir- cumstances. § 75.428 Collections of improper pay- ments. The costs incurred by a non-Federal entity to recover improper payments are allowable as either direct or indi- rect costs, as appropriate. Amounts collected may be used by the non-Fed- eral entity in accordance with cash management standards set forth in § 75.305. § 75.429 Commencement and convoca- tion costs. For IHEs, costs incurred for com- mencements and convocations are un- allowable, except as provided for in ap- pendix III.B.9, as student activity costs. § 75.430 Compensation—personal serv- ices. (a) General. Compensation for per- sonal services includes all remunera- tion, paid currently or accrued, for services of employees rendered during the period of performance under the Federal award, including but not nec- essarily limited to wages and salaries. Compensation for personal services 305 § 75.430 45 CFR Subtitle A (10–1–24 Edition) may also include fringe benefits which are addressed in § uding but not nec- essarily limited to wages and salaries. Compensation for personal services 305 § 75.430 45 CFR Subtitle A (10–1–24 Edition) may also include fringe benefits which are addressed in § 75.431. Costs of com- pensation are allowable to the extent that they satisfy the specific require- ments of this part, and that the total compensation for individual employ- ees: (1) Is reasonable for the services ren- dered and conforms to the established written policy of the non-Federal enti- ty consistently applied to both Federal and non-Federal activities; (2) Follows an appointment made in accordance with a non-Federal entity’s laws and/or rules or written policies and meets the requirements of Federal statute, where applicable; and (3) Is determined and supported as provided in paragraph (i) of this sec- tion, when applicable. (b) Reasonableness. Compensation for employees engaged in work on Federal awards will be considered reasonable to the extent that it is consistent with that paid for similar work in other ac- tivities of the non-Federal entity. In cases where the kinds of employees re- quired for Federal awards are not found in the other activities of the non-Fed- eral t paid for similar work in other ac- tivities of the non-Federal entity. In cases where the kinds of employees re- quired for Federal awards are not found in the other activities of the non-Fed- eral entity, compensation will be con- sidered reasonable to the extent that it is comparable to that paid for similar work in the labor market in which the non-Federal entity competes for the kind of employees involved. (c) Professional activities outside the non-Federal entity. Unless an arrange- ment is specifically authorized by an HHS awarding agency, a non-Federal entity must follow its written non-Fed- eral entity-wide policies and practices concerning the permissible extent of professional services that can be pro- vided outside the non-Federal entity for non-organizational compensation. Where such non-Federal entity-wide written policies do not exist or do not adequately define the permissible ex- tent of consulting or other non-organi- zational activities undertaken for extra outside pay, the Federal Govern- ment may require that the effort of professional staff working on Federal awards be allocated between: (1) Non-Federal entity activities, and (2) Non-organizational profession pay, the Federal Govern- ment may require that the effort of professional staff working on Federal awards be allocated between: (1) Non-Federal entity activities, and (2) Non-organizational professional activities. If the HHS awarding agency considers the extent of non-organiza- tional professional effort excessive or inconsistent with the conflicts-of-in- terest terms and conditions of the Fed- eral award, appropriate arrangements governing compensation will be nego- tiated on a case-by-case basis. (d) Unallowable costs. (1) Costs which are unallowable under other sections of these principles must not be allowable under this section solely on the basis that they constitute personnel com- pensation. (2) The allowable compensation for certain employees is subject to a ceil- ing in accordance with statute. For the amount of the ceiling for cost-reim- bursement contracts, the covered com- pensation subject to the ceiling, the covered employees, and other relevant provisions, see 10 U.S.C. 2324(e)(1)(P), and 41 U.S.C. 1127 and 4304(a)(16). For other types of Federal awards, other statutory ceilings may apply. (e) Special considerations. Special con- siderations in determining allowabil 2324(e)(1)(P), and 41 U.S.C. 1127 and 4304(a)(16). For other types of Federal awards, other statutory ceilings may apply. (e) Special considerations. Special con- siderations in determining allowability of compensation will be given to any change in a non-Federal entity’s com- pensation policy resulting in a substan- tial increase in its employees’ level of compensation (particularly when the change was concurrent with an in- crease in the ratio of Federal awards to other activities) or any change in the treatment of allowability of specific types of compensation due to changes in Federal policy. (f) Incentive compensation. Incentive compensation to employees based on cost reduction, or efficient perform- ance, suggestion awards, safety awards, etc., is allowable to the extent that the overall compensation is determined to be reasonable and such costs are paid or accrued pursuant to an agreement entered into in good faith between the non-Federal entity and the employees before the services were rendered, or pursuant to an established plan fol- lowed by the non-Federal entity so consistently as to imply, in effect, an agreement to make such payment. (g) Nonprofit organizations. For vices were rendered, or pursuant to an established plan fol- lowed by the non-Federal entity so consistently as to imply, in effect, an agreement to make such payment. (g) Nonprofit organizations. For com- pensation to members of nonprofit or- ganizations, trustees, directors, associ- ates, officers, or the immediate fami- lies thereof, determination must be made that such compensation is rea- sonable for the actual personal services rendered rather than a distribution of earnings in excess of costs. This may 306 Dept. of Health and Human Services § 75.430 include director’s and executive com- mittee member’s incentive awards, allowances for off-site pay, in- centive pay, location allowances, hard- ship pay, and cost-of-living differen- tials. fees, (h) Institutions of higher education (IHEs). (1) Certain conditions require special consideration and possible limi- tations in determining allowable per- sonnel compensation costs under Fed- eral awards. Among such conditions are the following: (i) Allowable activities. Charges to Federal awards may include reasonable amounts for activities contributing and directly related to work under an agreement, such as delivering special lecture wing: (i) Allowable activities. Charges to Federal awards may include reasonable amounts for activities contributing and directly related to work under an agreement, such as delivering special lectures about specific aspects of the ongoing activity, writing reports and articles, developing and maintaining protocols (human, animals, etc.), man- aging substances/chemicals, managing and securing project-specific data, co- ordinating research subjects, partici- pating in appropriate seminars, con- sulting with colleagues and graduate students, and attending meetings and conferences. (ii) Incidental activities. Incidental activities for which supplemental com- pensation is allowable under written institutional policy (at a rate not to exceed institutional base salary) need not be included in the records described in paragraph (i) of this section to di- rectly charge payments of incidental activities, such activities must either be specifically provided for in the Fed- eral award budget or receive prior writ- ten approval by the HHS awarding agency. (2) Salary basis. Charges for work per- formed on Federal awards by faculty members during the academic year are allowable at the IBS rate. eceive prior writ- ten approval by the HHS awarding agency. (2) Salary basis. Charges for work per- formed on Federal awards by faculty members during the academic year are allowable at the IBS rate. Except as noted in paragraph (h)(1)(ii) of this sec- tion, in no event will charges to Fed- eral awards, irrespective of the basis of computation, exceed the proportionate share of the IBS for that period. This principle applies to all members of fac- ulty at an institution. IBS is defined as the annual compensation paid by an IHE for an individual’s appointment, whether that individual’s time is spent on research, instruction, administra- tion, or other activities. IBS excludes any income that an individual earns outside of duties performed for the IHE. Unless there is prior approval by the HHS awarding agency, charges of a faculty member’s salary to a Federal award must not exceed the propor- tionate share of the IBS for the period faculty member during which the worked on the award. (3) Intra-Institution of Higher Edu- cation (IHE) consulting. Intra-IHE con- sulting by faculty is assumed to be un- dertaken as an IHE obligation requir- ing no compensation in addition to IBS. However, Intra-Institution of Higher Edu- cation (IHE) consulting. Intra-IHE con- sulting by faculty is assumed to be un- dertaken as an IHE obligation requir- ing no compensation in addition to IBS. However, in unusual cases where consultation is across departmental lines or involves a separate or remote operation, and the work performed by the faculty member is in addition to his or her regular responsibilities, any charges for such work representing ad- ditional compensation above IBS are allowable provided that such con- sulting arrangements are specifically provided for in the Federal award or approved in writing by the HHS award- ing agency. (4) Extra Service Pay normally rep- resents overload compensation, subject to institutional compensation policies for services above and beyond IBS. Where extra service pay is a result of Intra-IHE consulting, it is subject to the same requirements of paragraph (b) above. It is allowable if all of the fol- lowing conditions are met: (i) The non-Federal entity estab- lishes consistent written policies which apply uniformly to all faculty mem- bers, not just those working on Federal awards. (ii) The non-Federal entity estab- lishes a consistent wri al entity estab- lishes consistent written policies which apply uniformly to all faculty mem- bers, not just those working on Federal awards. (ii) The non-Federal entity estab- lishes a consistent written definition of work covered by IBS which is specific enough to determine conclusively when work beyond that level has occurred. This may be described in appointment letters or other documentations. (iii) The supplementation amount paid is commensurate with the IBS rate of pay and the amount of addi- tional work performed. See paragraph (h)(2) of this section. (iv) The salaries, as supplemented, fall within the salary structure and pay ranges established by and docu- mented in writing or otherwise applica- ble to the non-Federal entity. (v) The total salaries charged to Fed- eral awards including extra service pay 307 § 75.430 45 CFR Subtitle A (10–1–24 Edition) are subject to the Standards of Docu- mentation as described in paragraph (i) of this section. (5) Periods outside the academic year. (i) Except as specified for teaching ac- tivity in paragraph (h)(5)(ii) of this sec- tion, charges for work performed by faculty members on Federal awards during periods not included in the ba c year. (i) Except as specified for teaching ac- tivity in paragraph (h)(5)(ii) of this sec- tion, charges for work performed by faculty members on Federal awards during periods not included in the base salary period will be at a rate not in excess of the IBS. (ii) Charges for teaching activities performed by faculty members on Fed- eral awards during periods not included in IBS period will be based on the nor- mal written policy of the IHE gov- erning compensation to faculty mem- bers for teaching assignments during such periods. (6) Part-time faculty. Charges for work performed on Federal awards by fac- ulty members having only part-time appointments will be determined at a rate not in excess of that regularly paid for part-time assignments. (7) Sabbatical leave costs. Rules for sabbatical leave are as follow: (i) Costs of leaves of absence by em- ployees for performance of graduate work or sabbatical study, travel, or re- search are allowable provided the IHE has a uniform written policy on sab- batical leave for persons engaged in in- struction and persons engaged in re- search. Such costs will be allocated on an equitable basis among all related activities of the IHE. (ii) Whe olicy on sab- batical leave for persons engaged in in- struction and persons engaged in re- search. Such costs will be allocated on an equitable basis among all related activities of the IHE. (ii) Where sabbatical leave is in- cluded in fringe benefits for which a cost is determined for assessment as a direct charge, the aggregate amount of such assessments applicable to all work of the institution during the base period must be reasonable in relation to the IHE’s actual experience under its sabbatical leave policy. (8) Salary rates for non-faculty mem- bers. Non-faculty full-time professional personnel may also earn ‘‘extra service pay’’ in accordance with the non-Fed- eral entity’s written policy and con- sistent with paragraph (h)(1)(i) of this section. (i) Standards for documentation of per- sonnel expenses. (1) Charges to Federal awards for salaries and wages must be based on records that accurately re- flect the work performed. These records must: (i) Be supported by a system of inter- nal control which provides reasonable assurance that the charges are accu- rate, allowable, and properly allocated; (ii) Be incorporated into the official records of the non-Federal entity; (ii inter- nal control which provides reasonable assurance that the charges are accu- rate, allowable, and properly allocated; (ii) Be incorporated into the official records of the non-Federal entity; (iii) Reasonably reflect the total ac- tivity for which the employee is com- pensated by the non-Federal entity, not exceeding 100% of compensated ac- tivities (for IHE, this per the IHE’s def- inition of IBS); (iv) Encompass both federally as- sisted and all other activities com- pensated by the non-Federal entity on an integrated basis, but may include the use of subsidiary records as defined in the non-Federal entity’s written pol- icy; (v) Comply with the established ac- counting policies and practices of the non-Federal entity (See paragraph (h)(1)(ii) of this section for treatment of incidental work for IHEs.); and (vi) [Reserved] (vii) Support the distribution of the employee’s salary or wages among spe- cific activities or cost objectives if the employee works on more than one Fed- eral award; a Federal award and non- Federal award; an indirect cost activ- ity and a direct cost activity; two or more indirect activities which are allo- cated using different allocation bases; or an al award; a Federal award and non- Federal award; an indirect cost activ- ity and a direct cost activity; two or more indirect activities which are allo- cated using different allocation bases; or an unallowable activity and a direct or indirect cost activity. (viii) Budget estimates (i.e., esti- mates determined before the services are performed) alone do not qualify as support for charges to Federal awards, but may be used for interim accounting purposes, provided that: (A) The system for establishing the estimates produces reasonable approxi- mations of the activity actually per- formed; (B) Significant changes in the cor- responding work activity (as defined by the non-Federal entity’s written poli- cies) are identified and entered into the records in a timely manner. Short term (such as one or two months) fluctua- tion between workload categories need not be considered as long as the dis- tribution of salaries and wages is rea- sonable over the longer term; and (C) The non-Federal entity’s system of internal controls includes processes interim to after-the-fact review 308 Dept. of Health and Human Services § 75.430 charges made to a Federal awards based on budget estimates. Al entity’s system of internal controls includes processes interim to after-the-fact review 308 Dept. of Health and Human Services § 75.430 charges made to a Federal awards based on budget estimates. All nec- essary adjustment must be made such that the final amount charged to the Federal award is accurate, allowable, and properly allocated. (ix) Because practices vary as to the activity constituting a full workload (for IHEs, IBS), records may reflect categories of activities expressed as a percentage distribution of total activi- ties. (x) It is recognized that teaching, re- search, service, and administration are often inextricably intermingled in an academic setting. When recording sala- ries and wages charged to Federal awards for IHEs, a precise assessment of factors that contribute to costs is therefore not always feasible, nor is it expected. (2) For records which meet the stand- ards required in paragraph (i)(1) of this section, the non-Federal entity will not be required to provide additional sup- port or documentation for the work performed, other than that referenced in paragraph (i)(3) of this section. (3) In accordance with Department of Labor regulations implementing t vide additional sup- port or documentation for the work performed, other than that referenced in paragraph (i)(3) of this section. (3) In accordance with Department of Labor regulations implementing the Fair Labor Standards Act (FLSA) (29 CFR part 516), charges for the salaries and wages of nonexempt employees, in addition to the supporting documenta- tion described in this section, must also be supported by records indicating the total number of hours worked each day. (4) Salaries and wages of employees used in meeting cost sharing or match- ing requirements on Federal awards must be supported in the same manner as salaries and wages claimed for reim- bursement from Federal awards. (5) For states, local governments and Indian tribes, substitute processes or systems for allocating salaries and wages to Federal awards may be used in place of or in addition to the records described in paragraph (i)(1) of this sec- tion if approved by the cognizant agen- cy for indirect cost. Such systems may include, but are not limited to, random moment sampling, ‘‘rolling’’ time stud- ies, case counts, or other quantifiable measures of work performed. (i) Substitute systems which use sampling metho may include, but are not limited to, random moment sampling, ‘‘rolling’’ time stud- ies, case counts, or other quantifiable measures of work performed. (i) Substitute systems which use sampling methods (primarily for Tem- porary Assistance for Needy Families (TANF), the Supplemental Nutrition Assistance Program (SNAP), Medicaid, and other public assistance programs) must meet acceptable statistical sam- pling standards including: (A) The sampling universe must in- clude all of the employees whose sala- ries and wages are to be allocated based on sample results except as pro- vided in paragraph (i)(5)(iii) of this sec- tion; (B) The entire time period involved must be covered by the sample; and (C) The results must be statistically valid and applied to the period being sampled. (ii) Allocating charges for the sam- pled employees’ supervisors, clerical and support staffs, based on the results of the sampled employees, will be ac- ceptable. (iii) Less than full compliance with the statistical sampling standards noted in paragraph (i)(5)(i) of this sec- tion may be accepted by the cognizant agency for indirect costs if it concludes that the amounts to be allocated to Federal awards wi tical sampling standards noted in paragraph (i)(5)(i) of this sec- tion may be accepted by the cognizant agency for indirect costs if it concludes that the amounts to be allocated to Federal awards will be minimal, or if it concludes that the system proposed by the non-Federal entity will result in lower costs to Federal awards than a system which complies with the stand- ards. (6) Cognizant agencies for indirect costs are encouraged to approve alter- native proposals based on outcomes and milestones for program perform- ance where these are clearly docu- mented. Where approved by the Federal cognizant agency for indirect costs, these plans are acceptable as an alter- native to the requirements of para- graph (i)(1) of this section. (7) For Federal awards of similar pur- pose activity or instances of approved blended funding, a non-Federal entity may submit performance plans that in- corporate funds from multiple Federal awards and account for their combined use based on performance-oriented metrics, provided that such plans are approved in advance by all involved HHS awarding agencies. In these in- stances, the non-Federal entity must submit a request for waiver of the re- quireme iented metrics, provided that such plans are approved in advance by all involved HHS awarding agencies. In these in- stances, the non-Federal entity must submit a request for waiver of the re- quirements based on documentation that describes the method of charging costs, relates the charging of costs to the specific activity that is applicable 309 § 75.431 45 CFR Subtitle A (10–1–24 Edition) to all fund sources, and is based on quantifiable measures of the activity in relation to time charged. (8) For a non-Federal entity where the records do not meet the standards described in this section, the Federal Government may require personnel ac- tivity reports, including prescribed cer- tifications, or equivalent documenta- tion that support the records as re- quired in this section. § 75.431 Compensation—fringe fits. bene- (a) Fringe benefits are allowances and services provided by employers to their employees as compensation in ad- dition to regular salaries and wages. Fringe benefits include, but are not limited to, the costs of leave (vacation, family-related, sick or military), em- ployee insurance, pensions, and unem- ployment benefit plans. Except as pro- vided elsewhere in these ude, but are not limited to, the costs of leave (vacation, family-related, sick or military), em- ployee insurance, pensions, and unem- ployment benefit plans. Except as pro- vided elsewhere in these principles, the costs of fringe benefits are allowable provided that the benefits are reason- able and are required by law, non-Fed- eral entity-employee agreement, or an established policy of the non-Federal entity. (b) Leave. The cost of fringe benefits in the form of regular compensation paid to employees during periods of au- thorized absences from the job, such as for annual leave, family-related leave, sick leave, holidays, court leave, mili- tary leave, administrative leave, and other similar benefits, are allowable if all of the following criteria are met: (1) They are provided under estab- lished written leave policies; (2) The costs are equitably allocated to all related activities, including Fed- eral awards; and, (3) The accounting basis (cash or ac- crual) selected for costing each type of leave is consistently followed by the non-Federal entity or specified group- ing of employees. (i) When a non-Federal entity uses the cash basis of accounting, the cost of leave is recog each type of leave is consistently followed by the non-Federal entity or specified group- ing of employees. (i) When a non-Federal entity uses the cash basis of accounting, the cost of leave is recognized in the period that the leave is taken and paid for. Pay- ments for unused leave when an em- ployee retires or terminates employ- ment are allowable in the year of pay- ment. (ii) The accrual basis may be only used for those types of leave for which a liability as defined by GAAP exists when the leave is earned. When a non- Federal entity uses the accrual basis of accounting, allowable leave costs are the lesser of the amount accrued or funded. (c) The cost of fringe benefits in the form of employer contributions or ex- penses for social security; employee life, health, unemployment, and work- er’s compensation insurance (except as indicated in § 75.447); pension plan costs (see paragraph (i) of this section); and other similar benefits are allowable, provided such benefits are granted under established written policies. Such benefits, must be allocated to Federal awards and all other activities in a manner consistent with the pat- tern of benefits attributable to the in- dividual d under established written policies. Such benefits, must be allocated to Federal awards and all other activities in a manner consistent with the pat- tern of benefits attributable to the in- dividuals or group(s) of employees whose salaries and wages are charge- able to such Federal awards and other activities, and charged as direct or in- direct costs in accordance with the non-Federal entity’s accounting prac- tices. (d) Fringe benefits may be assigned to cost objectives by identifying spe- cific benefits to specific individual em- ployees or by allocating on the basis of entity-wide salaries and wages of the employees receiving the benefits. When the allocation method is used, separate allocations must be made to selective groupings of employees, unless the non-Federal entity demonstrates that costs in relationship to salaries and wages do not differ significantly for different groups of employees. (e) Insurance. See also § 75.447(d)(1) and (2). (1) Provisions for a reserve under a self-insurance program for unemploy- ment compensation or workers’ com- pensation are allowable to the extent that the provisions represent reason- able estimates of the liabilities for such compensa self-insurance program for unemploy- ment compensation or workers’ com- pensation are allowable to the extent that the provisions represent reason- able estimates of the liabilities for such compensation, and the types of coverage, extent of coverage, and rates and premiums would have been allow- able had insurance been purchased to cover the risks. However, provisions for self-insured liabilities which do not be- come payable for more than one year after the provision is made must not exceed the present value of the liabil- ity. 310 Dept. of Health and Human Services § 75.431 (2) Costs of insurance on the lives of trustees, officers, or other employees holding positions of similar responsi- bility are allowable only to the extent that the insurance represents addi- tional compensation. The costs of such insurance when the non-Federal entity is named as beneficiary are unallow- able. (3) Actual claims paid to or on behalf of employees or former employees for workers’ compensation, unemployment compensation, severance pay, and simi- lar employee benefits (e.g., post-retire- ment health benefits), are allowable in the year of payment provided that the non-Federal entity follows a co mployment compensation, severance pay, and simi- lar employee benefits (e.g., post-retire- ment health benefits), are allowable in the year of payment provided that the non-Federal entity follows a consistent costing policy. (f) Automobiles. That portion of auto- mobile costs furnished by the entity that relates to personal use by employ- ees (including transportation to and from work) is unallowable as fringe benefit or indirect (F&A) costs regard- less of whether the cost is reported as taxable income to the employees. (g) Pension plan costs. Pension plan costs which are incurred in accordance with the established policies of the non-Federal entity are allowable, pro- vided that: (1) Such policies meet the test of rea- sonableness. (2) The methods of cost allocation are not discriminatory. (3) For entities using accrual based accounting, the cost assigned to each fiscal year is determined in accordance with GAAP. (4) The costs assigned to a given fis- cal year are funded for all plan partici- pants within six months after the end of that year. However, increases to nor- mal and past service pension costs caused by a delay in funding the actu- arial liability beyond 30 calendar da partici- pants within six months after the end of that year. However, increases to nor- mal and past service pension costs caused by a delay in funding the actu- arial liability beyond 30 calendar days after each quarter of the year to which such costs are assignable are unallow- able. Non-Federal entity may elect to follow the ‘‘Cost Accounting Standard for Composition and Measurement of Pension Costs’’ (48 CFR 9904.412). (5) Pension plan termination insur- ance premiums paid pursuant to the Employee Retirement Income Security Act (ERISA) of 1974 (29 U.S.C. 1301–1461) are allowable. Late payment charges on such premiums are unallowable. Ex- cise taxes on accumulated funding defi- ciencies and other penalties imposed under ERISA are unallowable. (6) Pension plan costs may be com- puted using a pay-as-you-go method or an acceptable actuarial cost method in accordance with established written policies of the non-Federal entity. (i) For pension plans financed on a pay-as-you-go method, allowable costs will be limited to those representing actual payments to retirees or their beneficiaries. (ii) Pension costs calculated using an actuarial cost-based method recognized by GAAP are allow llowable costs will be limited to those representing actual payments to retirees or their beneficiaries. (ii) Pension costs calculated using an actuarial cost-based method recognized by GAAP are allowable for a given fis- cal year if they are funded for that year within six months after the end of that year. Costs funded after the six month period (or a later period agreed to by the cognizant agency for indirect costs) are allowable in the year funded. The cognizant agency for indirect costs may agree to an extension of the six month period if an appropriate adjust- ment is made to compensate for the timing of the charges to the Federal Government and related Federal reim- bursement and the non-Federal enti- ty’s contribution to the pension fund. Adjustments may be made by cash re- fund or other equitable procedures to compensate the Federal Government for the time value of Federal reim- bursements in excess of contributions to the pension fund. (iii) Amounts funded by the non-Fed- eral entity in excess of the actuarially determined amount for a fiscal year may be used as the non-Federal enti- ty’s contribution in future periods. (iv) When a non-Federal entity con- verts to an acce l entity in excess of the actuarially determined amount for a fiscal year may be used as the non-Federal enti- ty’s contribution in future periods. (iv) When a non-Federal entity con- verts to an acceptable actuarial cost method, as defined by GAAP, and funds pension costs in accordance with this method, the unfunded liability at the time of conversion is allowable if am- ortized over a period of years in accord- ance with GAAP. (v) The Federal Government must re- ceive an equitable share of any pre- viously allowed pension costs (includ- ing earnings thereon) which revert or inure to the non-Federal entity in the form of a refund, withdrawal, or other credit. (h) Post-retirement health. Post-retire- ment health plans (PRHP) refers to costs of health insurance or health services not included in a pension plan 311 § 75.431 45 CFR Subtitle A (10–1–24 Edition) covered by paragraph (g) of this section for retirees and their spouses, depend- ents, and survivors. PRHP costs may be computed using a pay-as-you-go method or an acceptable actuarial cost method in accordance with established written policies of the non-Federal en- tity. (1) For PRHP financed on a pay-as- you-go method, allowa sing a pay-as-you-go method or an acceptable actuarial cost method in accordance with established written policies of the non-Federal en- tity. (1) For PRHP financed on a pay-as- you-go method, allowable costs will be limited to those representing actual payments to retirees or their bene- ficiaries. (2) PRHP costs calculated using an actuarial cost method recognized by GAAP are allowable if they are funded for that year within six months after the end of that year. Costs funded after the six month period (or a later period agreed to by the cognizant agency) are allowable in the year funded. The Fed- eral cognizant agency for indirect costs may agree to an extension of the six month period if an appropriate adjust- ment is made to compensate for the timing of the charges to the Federal Government and related Federal reim- bursements and the non-Federal enti- ty’s contributions to the PRHP fund. Adjustments may be made by cash re- fund, reduction in current year’s PRHP costs, or other equitable procedures to compensate the Federal Government for the time value of Federal reim- bursements in excess of contributions to the PRHP fund. (3) Amounts funded in excess of the actuarially det quitable procedures to compensate the Federal Government for the time value of Federal reim- bursements in excess of contributions to the PRHP fund. (3) Amounts funded in excess of the actuarially determined amount for a fiscal year may be used as the non-Fed- eral entity contribution in a future pe- riod. (4) When a non-Federal entity con- verts to an acceptable actuarial cost method and funds PRHP costs in ac- cordance with this method, the initial unfunded liability attributable to prior years is allowable if amortized over a period of years in accordance with GAAP, or, if no such GAAP period ex- ists, over a period negotiated with the cognizant agency for indirect costs. (5) To be allowable in the current year, the PRHP costs must be paid ei- ther to: (i) An insurer or other benefit pro- vider as current year costs or pre- miums, or (ii) An insurer or trustee to maintain a trust fund or reserve for the sole pur- pose of providing post-retirement bene- fits to retirees and other beneficiaries. (6) The Federal Government must re- ceive an equitable share of any amounts of previously allowed post-re- tirement benefit costs (including earn- ings thereon) which revert or inure to th eficiaries. (6) The Federal Government must re- ceive an equitable share of any amounts of previously allowed post-re- tirement benefit costs (including earn- ings thereon) which revert or inure to the non-Federal entity in the form of a refund, withdrawal, or other credit. (i) Severance pay. (1) Severance pay, also commonly referred to as dismissal wages, is a payment in addition to reg- ular salaries and wages, by non-Federal entities to workers whose employment is being terminated. Costs of severance pay are allowable only to the extent that in each case, it is required by: (i) Law; (ii) Employer-employee agreement; (iii) Established policy that con- stitutes, in effect, an implied agree- ment on the non-Federal entity’s part; or (iv) Circumstances of the particular employment. (2) Costs of severance payments are divided into two categories as follows: (i) Actual normal turnover severance payments must be allocated to all ac- tivities; or, where the non-Federal en- tity provides for a reserve for normal severances, such method will be ac- ceptable if the charge to current oper- ations is reasonable in light of pay- ments actually made for normal severances over a representative a reserve for normal severances, such method will be ac- ceptable if the charge to current oper- ations is reasonable in light of pay- ments actually made for normal severances over a representative past period, and if amounts charged are al- located to all activities of the non-Fed- eral entity. (ii) Measurement of costs of abnor- mal or mass severance pay by means of an accrual will not achieve equity to both parties. Thus, accruals for this purpose are not allowable. However, the Federal Government recognizes its obligation to participate, to the extent of its fair share, in any specific pay- ment. Prior approval by the Federal awarding agency or cognizant agency for indirect cost, as appropriate, is re- quired. (3) Costs incurred in certain sever- ance pay packages which are in an amount in excess of the normal sever- ance pay paid by the non-Federal enti- ty to an employee upon termination of employment and are paid to the em- ployee contingent upon a change in 312 Dept. of Health and Human Services § 75.433 management control over, or owner- ship of, the non-Federal entity’s assets, are unallowable. (4) Severance payments to foreign na- tionals employed by the non-Federal en h and Human Services § 75.433 management control over, or owner- ship of, the non-Federal entity’s assets, are unallowable. (4) Severance payments to foreign na- tionals employed by the non-Federal entity outside the United States, to the extent that the amount exceeds the customary or prevailing practices for the non-Federal entity in the United States, are unallowable, unless they are necessary for the performance of Federal programs and approved by the HHS awarding agency. (5) Severance payments to foreign na- tionals employed by the non-Federal entity outside the United States due to the termination of the foreign national as a result of the closing of, or curtail- ment of activities by, the non-Federal entity in that country, are unallow- able, unless they are necessary for the performance of Federal programs and approved by the HHS awarding agency. (j) For IHEs only. (1) Fringe benefits in the form of undergraduate and grad- uate tuition or remission of tuition for individual employees are allowable, provided such benefits are granted in accordance with established non-fed- eral entity policies, and are distributed to all non-Federal entity activities on an equitable basis. T loyees are allowable, provided such benefits are granted in accordance with established non-fed- eral entity policies, and are distributed to all non-Federal entity activities on an equitable basis. Tuition benefits for family members other than the em- ployee are unallowable. (2) Fringe benefits in the form of tui- tion or remission of tuition for indi- vidual employees not employed by IHEs are limited to the tax-free amount allowed per section 127 of the Internal Revenue Code as amended. (3) IHEs may offer employees tuition waivers or tuition reductions, provided that the benefit does not discriminate in favor of highly compensated employ- ees. Employees can exercise these ben- efits at other institutions according to institutional policy. See § 75.466 for treatment of tuition remission pro- vided to students. (k) For IHEs whose costs are paid by state or local governments, fringe ben- efit programs (such as pension costs and FICA) and any other benefits costs specifically incurred on behalf of, and in direct benefit to, the non-Federal entity, are allowable costs of such non- Federal entities whether or not these costs are recorded in the accounting records of the non-Federal en n behalf of, and in direct benefit to, the non-Federal entity, are allowable costs of such non- Federal entities whether or not these costs are recorded in the accounting records of the non-Federal entities, subject to the following: (1) The costs meet the requirements of Basic Considerations in §§ 75.402 through 75.411; (2) The costs are properly supported by approved cost allocation plans in ac- cordance with applicable Federal cost accounting principles; and (3) The costs are not otherwise borne directly or indirectly by the Federal Government. [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3017, Jan. 20, 2016] § 75.432 Conferences. A conference is defined as a meeting, retreat, seminar, symposium, work- shop or event whose primary purpose is the dissemination of technical infor- mation beyond the non-Federal entity and is necessary and reasonable for successful performance under the Fed- eral award. Allowable conference costs paid by the non-Federal entity as a sponsor or host of the conference may include rental of facilities, speakers’ fees, costs of meals and refreshments, local transportation, and other items incidental to such conferences unless further restricted by the the conference may include rental of facilities, speakers’ fees, costs of meals and refreshments, local transportation, and other items incidental to such conferences unless further restricted by the terms and conditions of the Federal award. As needed, the costs of identifying, but not providing, locally available depend- ent-care resources are allowable. Con- ference hosts/sponsors must exercise discretion and judgment in ensuring that conference costs are appropriate, necessary and managed in a manner that minimizes costs to the Federal award. The HHS awarding agency may authorize exceptions where appropriate for programs including Indian tribes, children, and the elderly. See also §§ 75.438, 75.456, 75.474, and 75.475. § 75.433 Contingency provisions. (a) Contingency is that part of a budget estimate of future costs (typi- cally of large construction projects, IT systems, or other items as approved by the HHS awarding agency) which is as- sociated with possible events or condi- tions arising from causes the precise outcome of which is indeterminable at the time of estimate, and that experi- ence shows will likely result, in aggre- gate, in additional costs for the ap- proved a ons arising from causes the precise outcome of which is indeterminable at the time of estimate, and that experi- ence shows will likely result, in aggre- gate, in additional costs for the ap- proved activity or project. Amounts for 313 § 75.434 45 CFR Subtitle A (10–1–24 Edition) major project scope changes, unfore- seen risks, or extraordinary events may not be included. cost (b) It is permissible for contingency amounts other than those excluded in paragraph (a) of this section to be ex- plicitly included in budget estimates, to the extent they are necessary to im- prove the precision of those estimates. Amounts must be estimated using broadly-accepted estimating methodologies, specified in the budget documentation of the Federal award, and accepted by the HHS awarding agency. As such, contingency amounts are to be included in the Federal award. In order for actual costs in- curred to be allowable, they must com- ply with the cost principles and other requirements in this part (see also §§ 75.300 through 75.309 of subpart D of this part and 75.403); be necessary and reasonable for proper and efficient ac- complishment of project or program objectives, and be verifiable from the n lso §§ 75.300 through 75.309 of subpart D of this part and 75.403); be necessary and reasonable for proper and efficient ac- complishment of project or program objectives, and be verifiable from the non-Federal entity’s records. (c) Payments made by the HHS awarding agency to the non-Federal entity’s ‘‘contingency reserve’’ or any similar payment made for events the occurrence of which cannot be foretold with certainty as to the time or inten- sity, or with an assurance of their hap- pening, are unallowable, except as noted in §§ 75.431 and 75.447. § 75.434 Contributions and donations. (a) Costs of contributions and dona- tions, including cash, property, and services, from the non-Federal entity to other entities, are unallowable. (b) The value of services and property donated to the non-Federal entity may not be charged to the Federal award ei- ther as a direct or indirect (F&A) cost. The value of donated services and prop- erty may be used to meet cost sharing or matching requirements (see § 75.306). Depreciation on donated assets is per- mitted in accordance with § 75.436, as long as the donated property is not counted sharing or towards cost matching requirements. (c) Services s (see § 75.306). Depreciation on donated assets is per- mitted in accordance with § 75.436, as long as the donated property is not counted sharing or towards cost matching requirements. (c) Services donated or volunteered to the non-Federal entity may be fur- nished to a non-Federal entity by pro- fessional and technical personnel, con- sultants, and other skilled and un- skilled labor. The value of these serv- ices may not be charged to the Federal award either as a direct or indirect cost. However, the value of donated services may be used to meet cost shar- ing or matching requirements in ac- cordance with the provisions of § 75.306. (d) To the extent feasible, services donated to the non-Federal entity will be supported by the same methods used to support the allocability of regular personnel services. (e) The following provisions apply to nonprofit organizations. The value of services donated to the nonprofit orga- nization utilized in the performance of a direct cost activity must be consid- ered in the determination of the non- Federal entity’s indirect cost rate(s) and, accordingly, must be allocated a proportionate share of applicable indi- rect costs when the following c st be consid- ered in the determination of the non- Federal entity’s indirect cost rate(s) and, accordingly, must be allocated a proportionate share of applicable indi- rect costs when the following cir- cumstances exist: (1) The aggregate value of the serv- ices is material; (2) The services are supported by a significant amount of the indirect costs incurred by the non-Federal enti- ty; (i) In those instances where there is no basis for determining the fair mar- ket value of the services rendered, the non-Federal entity and the cognizant agency for indirect costs must nego- tiate an appropriate allocation of indi- rect cost to the services. (ii) Where donated services directly benefit a project supported by the Fed- eral award, the indirect costs allocated to the services will be considered as a part of the total costs of the project. Such indirect costs may be reimbursed under the Federal award or used to meet cost sharing or matching require- ments. (f) Fair market value of donated services must be computed as described in § 75.306. (g) Personal property and use of space. (1) Donated personal property and use of space may be furnished to a non- Federal entity. The value of the services must be computed as described in § 75.306. (g) Personal property and use of space. (1) Donated personal property and use of space may be furnished to a non- Federal entity. The value of the per- sonal property and space may not be charged to the Federal award either as a direct or indirect cost. (2) The value of the donations may be used to meet cost sharing or matching share requirements under the condi- tions described in §§ 75.300 through 75.309 of subpart D of this part. The 314 Dept. of Health and Human Services § 75.435 value of the donations must be deter- mined in accordance with §§ 75.300 through 75.309. Where donations are treated as indirect costs, indirect cost rates will separate the value of the do- nations so that reimbursement will not be made. § 75.435 Defense and prosecution of criminal and civil proceedings, claims, appeals, and patent in- fringements. (a) Definitions for the purposes of this section. (1) Conviction means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon verdict or a plea, including a conviction due to a plea of nolo contendere. (2) Costs include the services of in- house or priv nal offense by any court of competent jurisdiction, whether entered upon verdict or a plea, including a conviction due to a plea of nolo contendere. (2) Costs include the services of in- house or private counsel, accountants, consultants, or others engaged to as- sist the non-Federal entity before, dur- ing, and after commencement of a judi- cial or administrative proceeding, that bear a direct relationship to the pro- ceeding. (3) Fraud means: (i) Acts of fraud or corruption or at- tempts to defraud the Federal Govern- ment or to corrupt its agents, (ii) Acts that constitute a cause for debarment or suspension (as specified in agency regulations), and (iii) Acts which violate the False Claims Act (31 U.S.C. 3729–3732) or the Anti-kickback Act (41 U.S.C. 1320a– 7b(b)). (4) Penalty does not include restitu- tion, reimbursement, or compensatory damages. (5) Proceeding includes an investiga- tion. (b) Costs. (1) Except as otherwise de- scribed herein, costs incurred in con- nection with any criminal, civil or ad- ministrative proceeding (including fil- ing of a false certification) commenced by the Federal Government, a state, local government, or foreign govern- ment, or joined by th ny criminal, civil or ad- ministrative proceeding (including fil- ing of a false certification) commenced by the Federal Government, a state, local government, or foreign govern- ment, or joined by the Federal Govern- ment (including a proceeding under the False Claims Act), against the non- Federal entity, (or commenced by third parties or a current or former em- ployee of the non-Federal entity who submits a whistleblower complaint of reprisal in accordance with 10 U.S.C. 2409 or 41 U.S.C. 4712), are not allowable if the proceeding: (i) Relates to a violation of, or failure to comply with, a Federal, state, local or foreign statute, regulation or the terms and conditions of the Federal award, by the non-Federal entity (in- cluding its agents and employees); and (ii) Results in any of the following dispositions: (A) In a criminal proceeding, a con- viction. (B) In a civil or administrative pro- ceeding involving an allegation of fraud or similar misconduct, a deter- mination of non-Federal entity liabil- ity. (C) In the case of any civil or admin- istrative proceeding, the disallowance of costs or the imposition of a mone- tary penalty, or an order issued by the HHS awarding agenc deral entity liabil- ity. (C) In the case of any civil or admin- istrative proceeding, the disallowance of costs or the imposition of a mone- tary penalty, or an order issued by the HHS awarding agency head or delegate to the non-Federal entity to take cor- rective action under 10 U.S.C. 2409 or 41 U.S.C. 4712. (D) A final decision by an appropriate Federal official to debar or suspend the non-Federal entity, to rescind or void a Federal award, or to terminate a Fed- eral award by reason of a violation or failure to comply with a statute, regu- lation, or the terms and conditions of the Federal award. (E) A disposition by consent or com- promise, if the action could have re- sulted in any of the dispositions de- scribed (b)(1)(ii)(A) through (D) of this section. in paragraphs (2) If more than one proceeding in- volves the same alleged misconduct, the costs of all such proceedings are unallowable if any results in one of the dispositions shown in paragraph (b) of this section. (c) If a proceeding referred to in para- graph (b) of this section is commenced by the Federal Government and is re- solved by consent or compromise pur- suant to an agreement by the non-Fed- eral entity and t proceeding referred to in para- graph (b) of this section is commenced by the Federal Government and is re- solved by consent or compromise pur- suant to an agreement by the non-Fed- eral entity and the Federal Govern- ment, then the costs incurred may be allowed to the extent specifically pro- vided in such agreement. (d) If a proceeding referred to in para- graph (b) of this section is commenced by a state, local or foreign government, the authorized Federal official may 315 § 75.436 45 CFR Subtitle A (10–1–24 Edition) allow the costs incurred if such author- ized official determines that the costs were incurred as a result of: (1) A specific term or condition of the Federal award, or (2) Specific written direction of an authorized official of the HHS award- ing agency. (e) Costs incurred in connection with proceedings described in paragraph (b) of this section, which are not made un- allowable by that subsection, may be allowed but only to the extent that: (1) The costs are reasonable and nec- essary in relation to the administra- tion of the Federal award and activi- ties required to deal with the pro- ceeding and the underlying cause of ac- tion; (2) Payment of the reasonable, le and nec- essary in relation to the administra- tion of the Federal award and activi- ties required to deal with the pro- ceeding and the underlying cause of ac- tion; (2) Payment of the reasonable, nec- essary, allocable and otherwise allow- able costs incurred is not prohibited by any other provision(s) of the Federal award; (3) The costs are not recovered from the Federal Government or a third party, either directly as a result of the proceeding or otherwise; and, (4) An authorized Federal official must determine the percentage of costs allowed considering the complexity of litigation, generally accepted prin- ciples governing the award of legal fees in civil actions involving the United States, and such other factors as may be appropriate. Such percentage must not exceed 80 percent. However, if an agreement reached under paragraph (c) of this section has explicitly consid- ered this 80 percent limitation and per- mitted a higher percentage, then the full amount of costs resulting from that agreement are allowable. (f) Costs incurred by the non-Federal entity in connection with the defense of suits brought by its employees or ex- employees under section 2 of the Major Fraud Ac from that agreement are allowable. (f) Costs incurred by the non-Federal entity in connection with the defense of suits brought by its employees or ex- employees under section 2 of the Major Fraud Act of 1988 (18 U.S.C. 1031), in- cluding the cost of all relief necessary to make such employee whole, where the non-Federal entity was found liable or settled, are unallowable. (g) Costs of prosecution of claims against the Federal Government, in- cluding appeals of final HHS agency de- cisions, are unallowable. (h) Costs of legal, accounting, and consultant services, and related costs, incurred in connection with patent in- fringement litigation, are unallowable unless otherwise provided for in the Federal award. (i) Costs which may be unallowable under this section, including directly associated costs, must be segregated and accounted for separately. During the pendency of any proceeding covered by paragraphs (b) and (f) of this sec- tion, the Federal Government must generally withhold payment of such costs. However, if in its best interests, the Federal Government may provide for conditional payment upon provision of adequate security, or other adequate assurance, and agreement to r ayment of such costs. However, if in its best interests, the Federal Government may provide for conditional payment upon provision of adequate security, or other adequate assurance, and agreement to repay all unallowable costs, plus interest, if the costs are subsequently determined to be unallowable. § 75.436 Depreciation. (a) Depreciation is the method for al- locating the cost of fixed assets to peri- ods benefitting from asset use. The non-Federal entity may be com- pensated for the use of its buildings, capital improvements, equipment, and software projects capitalized in accord- ance with GAAP, provided that they are used, needed in the non-Federal en- tity’s activities, and properly allocated to Federal awards. Such compensation must be made by computing deprecia- tion. (b) The allocation for depreciation must be made in accordance with ap- pendices III through IX. (c) Depreciation is computed apply- ing the following rules. The computa- tion of depreciation must be based on the acquisition cost of the assets in- volved. For an asset donated to the non-Federal entity by a third party, its fair market value at the time of the do- nation must be considered as the acqui- sition acquisition cost of the assets in- volved. For an asset donated to the non-Federal entity by a third party, its fair market value at the time of the do- nation must be considered as the acqui- sition cost. Such assets may be depre- ciated or claimed as matching but not both. For the purpose of computing de- preciation, the acquisition cost will ex- clude: (1) The cost of land; (2) Any portion of the cost of build- ings and equipment borne by or do- nated by the Federal Government, irre- spective of where title was originally vested or where it is presently located; (3) Any portion of the cost of build- ings and equipment contributed by or 316 Dept. of Health and Human Services § 75.437 for the non-Federal entity, where law or agreement prohibits recovery; and (4) Any asset acquired solely for the performance of a non-Federal award. (d) When computing depreciation charges, the following must be ob- served: (1) The period of useful service or useful life established in each case for usable capital assets must take into consideration such factors as type of construction, nature of the equipment, technological developments in the par- ticular area, historical data, and the renewal and ble capital assets must take into consideration such factors as type of construction, nature of the equipment, technological developments in the par- ticular area, historical data, and the renewal and replacement policies fol- lowed for the individual items or class- es of assets involved. (2) The depreciation method used to charge the cost of an asset (or group of assets) to accounting periods must re- flect the pattern of consumption of the asset during its useful life. In the ab- sence of clear evidence indicating that the expected consumption of the asset will be significantly greater in the early portions than in the later por- tions of its useful life, the straight-line method must be presumed to be the ap- propriate method. Depreciation meth- ods once used may not be changed un- less approved in advance by the cog- nizant agency. The depreciation meth- ods used to calculate the depreciation amounts for indirect (F&A) rate pur- poses must be the same methods used by the non-Federal entity for its finan- cial statements. (3) The entire building, including the shell and all components, may be treat- ed as a single asset and depreciated over a single useful life. A building may al entity for its finan- cial statements. (3) The entire building, including the shell and all components, may be treat- ed as a single asset and depreciated over a single useful life. A building may also be divided into multiple com- ponents. Each component item may then be depreciated over its estimated useful life. The building components must be grouped into three general components of a building: building shell (including construction and de- sign costs), building services systems (e.g., elevators, HVAC, plumbing sys- tem and heating and air-conditioning system) and fixed equipment (e.g., sterilizers, casework, fume hoods, cold rooms and glassware/washers). In ex- ceptional cases, a cognizant agency may authorize a non-Federal entity to use more than these three groupings. When a non-Federal entity elects to de- preciate its buildings by its compo- nents, the same depreciation methods must be used for indirect (F&A) pur- poses and financial statements pur- poses, as described in paragraphs (d)(1) and (2) of this section. (4) No depreciation may be allowed on any assets that have outlived their depreciable lives. (5) Where the depreciation method is introduced to replace the us aragraphs (d)(1) and (2) of this section. (4) No depreciation may be allowed on any assets that have outlived their depreciable lives. (5) Where the depreciation method is introduced to replace the use allow- ance method, depreciation must be computed as if the asset had been de- preciated over its entire life (i.e., from the date the asset was acquired and ready for use to the date of disposal or withdrawal from service). The total amount of use allowance and deprecia- tion for an asset (including imputed de- preciation applicable to periods prior to the conversion from the use allow- ance method as well as depreciation after the conversion) may not exceed the total acquisition cost of the asset. (e) Charges for depreciation must be supported property records, and physical inventories must be taken at least once every two years to ensure that the assets exist and are usable, used, and needed. Statistical sampling techniques may be used in taking these inventories. In addition, adequate depreciation records showing the amount of depreciation taken each period must also be maintained. adequate by § 75.437 Employee health and welfare costs. (a) Costs incurred in accordance with the n e depreciation records showing the amount of depreciation taken each period must also be maintained. adequate by § 75.437 Employee health and welfare costs. (a) Costs incurred in accordance with the non-Federal entity’s documented policies for the improvement of work- ing conditions, employer-employee re- lations, employee health, and employee performance are allowable. (b) Such costs will be equitably ap- portioned to all activities of the non- Federal entity. Income generated from any of these activities will be credited to the cost thereof unless such income has been irrevocably sent to employee welfare organizations. (c) Losses resulting from operating food services are allowable only if the non-Federal entity’s objective is to op- erate such services on a break-even basis. Losses sustained because of oper- ating objectives other than the above are allowable only: 317 § 75.438 45 CFR Subtitle A (10–1–24 Edition) (1) Where the non-Federal entity can demonstrate unusual circumstances; and (2) With the approval of the cog- nizant agency for indirect costs. § 75.438 Entertainment costs. Costs of entertainment, including amusement, diversion, and social ac- tivities and any associat ; and (2) With the approval of the cog- nizant agency for indirect costs. § 75.438 Entertainment costs. Costs of entertainment, including amusement, diversion, and social ac- tivities and any associated costs are unallowable, except where specific costs that might otherwise be consid- ered entertainment have a pro- grammatic purpose and are authorized either in the approved budget for the Federal award or with prior written ap- proval of the HHS awarding agency. § 75.439 Equipment and other capital expenditures. (a) See § 75.2 for the definitions of Capital expenditures, Equipment, Special equipment, General purpose purpose equipment, Acquisition cost, and Capital assets. (b) The following rules of allow- ability must apply to equipment and other capital expenditures: (1) Capital expenditures for general purpose equipment, buildings, and land are unallowable as direct charges, ex- cept with the prior written approval of the HHS awarding agency or pass- through entity. (2) Capital expenditures for special purpose equipment are allowable as di- rect costs, provided that items with a unit cost of $5,000 or more have the prior written approval of the HHS awarding agency or pass-through ditures for special purpose equipment are allowable as di- rect costs, provided that items with a unit cost of $5,000 or more have the prior written approval of the HHS awarding agency or pass-through enti- ty. (3) Capital expenditures for improve- ments to land, buildings, or equipment which materially increase their value or useful life are unallowable as a di- rect cost except with the prior written approval of the HHS awarding agency, or pass-through entity. See § 75.436 for rules on the allowability of deprecia- tion on buildings, capital improve- ments, and equipment. See also § 75.465. (4) When approved as a direct charge pursuant to paragraphs (b)(1) through (3) of this section, capital expenditures will be charged in the period in which the expenditure is incurred, or as oth- erwise determined appropriate and ne- gotiated with the HHS awarding agen- cy. (5) The unamortized portion of any equipment written off as a result of a change in capitalization levels may be recovered by continuing to claim the otherwise allowable depreciation on the equipment, or by amortizing the amount to be written off over a period of years negotiated with the Federal cognizant agency for indire continuing to claim the otherwise allowable depreciation on the equipment, or by amortizing the amount to be written off over a period of years negotiated with the Federal cognizant agency for indirect cost. (6) Cost of equipment disposal. If the non-Federal entity is instructed by the HHS awarding agency to otherwise dis- pose of or transfer the equipment the costs of such disposal or transfer are allowable. (7) Equipment and other capital ex- penditures are unallowable as indirect costs. See § 75.436. [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3018, Jan. 20, 2016] § 75.440 Exchange rates. (a) Cost increases for fluctuations in exchange rates are allowable costs sub- ject to the availability of funding. Prior approval of exchange rate fluc- tuations is required only when the change results in the need for addi- tional Federal funding, or the in- creased costs result in the need to sig- nificantly reduce the scope of the project. The HHS awarding agency must however ensure that adequate funds are available to cover currency fluctuations in order to avoid a viola- tion of the Anti-Deficiency Act. (b) The non-Federal entity is re- quired to make reviews of local cur- rency gai adequate funds are available to cover currency fluctuations in order to avoid a viola- tion of the Anti-Deficiency Act. (b) The non-Federal entity is re- quired to make reviews of local cur- rency gains to determine the need for additional federal funding before the expiration date of the Federal award. Subsequent adjustments for currency increases may be allowable only when the non-Federal entity provides the HHS awarding agency with adequate source documentation from a com- monly used source in effect at the time the expense was made, and to the ex- tent that sufficient Federal funds are available. § 75.441 Fines, penalties, damages and other settlements. Costs resulting from non-Federal en- tity violations of, alleged violations of, or failure to comply with, Federal, state, tribal, local or foreign laws and regulations are unallowable, except 318 Dept. of Health and Human Services § 75.444 when incurred as a result of compli- ance with specific provisions of the Federal award, or with prior written approval of the HHS awarding agency. See also § 75.435. § 75.442 Fund raising and investment management costs. (a) Costs of organized fund raising, including financial campaigns, end ith prior written approval of the HHS awarding agency. See also § 75.435. § 75.442 Fund raising and investment management costs. (a) Costs of organized fund raising, including financial campaigns, endow- ment drives, solicitation of gifts and bequests, and similar expenses incurred to raise capital or obtain contributions are unallowable. Fund raising costs for the purposes of meeting the Federal program objectives are allowable with prior written approval from the Fed- eral awarding agency. Proposal costs are covered in § 75.460. (b) Costs of investment counsel and staff and similar expenses incurred to enhance income from investments are unallowable except when associated with investments covering pension, self-insurance, or other funds which in- clude Federal participation allowed by this part. (c) Costs related to the physical cus- tody and control of monies and securi- ties are allowable. (d) Both allowable and unallowable fund raising and investment activities must be allocated an appropriate share of indirect costs under the conditions described in § 75.413. § 75.443 Gains and losses on disposi- tion of depreciable assets. (a) Gains and losses on the sale, re- tirement, or o n appropriate share of indirect costs under the conditions described in § 75.413. § 75.443 Gains and losses on disposi- tion of depreciable assets. (a) Gains and losses on the sale, re- tirement, or other disposition of depre- ciable property must be included in the year in which they occur as credits or charges to the asset cost grouping(s) in which the property was included. The amount of the gain or loss to be in- cluded as a credit or charge to the ap- propriate asset cost grouping(s) is the difference between the amount realized on the property and the undepreciated basis of the property. (b) Gains and losses from the disposi- tion of depreciable property must not be recognized as a separate credit or charge under the following conditions: (1) The gain or loss is processed through a depreciation account and is reflected in the depreciation allowable under §§ 75.436 and 75.439. (2) The property is given in exchange as part of the purchase price of a simi- lar item and the gain or loss is taken into account in determining the depre- ciation cost basis of the new item. (3) A loss results from the failure to maintain permissible insurance, except as otherwise provided in § 75.447. oss is taken into account in determining the depre- ciation cost basis of the new item. (3) A loss results from the failure to maintain permissible insurance, except as otherwise provided in § 75.447. (4) Compensation for the use of the property was provided through use al- lowances in lieu of depreciation. (5) Gains and losses arising from mass or extraordinary sales, retire- ments, or other dispositions must be considered on a case-by-case basis. (c) Gains or losses of any nature aris- ing from the sale or exchange of prop- erty other than the property covered in paragraph (a) of this section, e.g., land, must be excluded in computing Federal award costs. (d) When assets acquired with Fed- eral funds, in part or wholly, are dis- posed of, the distribution of the pro- ceeds must be made in accordance with §§ 75.317 through 75.323. § 75.444 General costs of government. (a) For states, local governments, and Indian Tribes, the general costs of government are unallowable (except as provided in § 75.474). Unallowable costs include: (1) Salaries and expenses of the Office of the Governor of a state or the chief executive of a local government or the chief executive of an Indian tribe; ded in § 75.474). Unallowable costs include: (1) Salaries and expenses of the Office of the Governor of a state or the chief executive of a local government or the chief executive of an Indian tribe; (2) Salaries and other expenses of a state legislature, tribal council, or similar local governmental body, such as a county supervisor, city council, school board, etc., whether incurred for purposes of legislation or executive di- rection; (3) Costs of the judicial branch of a government; (4) Costs of prosecutorial activities unless treated as a direct cost to a spe- cific program if authorized by statute or regulation (however, this does not preclude the allowability of other legal activities of the Attorney General as described in § 75.435); and (5) Costs of other general types of government services normally provided to the general public, such as fire and police, unless provided for as a direct cost under a program statute or regula- tion. 319 § 75.445 45 CFR Subtitle A (10–1–24 Edition) (b) For Indian tribes and Councils of Governments (COGs) (see § 75.2 Local government), up to 50% of salaries and expenses directly attributable to man- aging and operating Federal programs by th ion) (b) For Indian tribes and Councils of Governments (COGs) (see § 75.2 Local government), up to 50% of salaries and expenses directly attributable to man- aging and operating Federal programs by the chief executive and his or her staff can be included in the indirect cost calculation without documenta- tion. § 75.445 Goods or services for personal use. (a) Costs of goods or services for per- sonal use of the non-Federal entity’s employees are unallowable regardless of whether the cost is reported as tax- able income to the employees. (b) Costs of housing (e.g., deprecia- tion, maintenance, utilities, fur- nishings, rent), housing allowances and personal living expenses are only al- lowable as direct costs regardless of whether reported as taxable income to the employees. In addition, to be allow- able direct costs must be approved in advance by an HHS awarding agency. § 75.446 Idle facilities and idle capac- ity. (a) As used in this section the fol- lowing terms have the meanings set forth in this section: (1) Facilities means land and build- ings or any portion thereof, equipment individually or collectively, or any other tangible capital asset, wherever located, and whether ow t forth in this section: (1) Facilities means land and build- ings or any portion thereof, equipment individually or collectively, or any other tangible capital asset, wherever located, and whether owned or leased by the non-Federal entity. (2) Idle facilities means completely unused facilities that are excess to the non-Federal entity’s current needs. (3) Idle capacity means the unused capacity of partially used facilities. It is the difference between: (i) That which a facility could achieve under 100 percent operating time on a one-shift basis less operating interruptions resulting from time lost for repairs, setups, unsatisfactory ma- terials, and other normal delays and; (ii) The extent to which the facility was actually used to meet demands during the accounting period. A multi- shift basis should be used if it can be shown that this amount of usage would normally be expected for the type of fa- cility involved. (4) Cost of idle facilities or idle ca- pacity means costs such as mainte- nance, repair, housing, rent, and other related costs, e.g., insurance, interest, and depreciation. These costs could in- clude the costs of idle public safety emergency telecommuni- cations, o ainte- nance, repair, housing, rent, and other related costs, e.g., insurance, interest, and depreciation. These costs could in- clude the costs of idle public safety emergency telecommuni- cations, or information technology sys- tem capacity that is built to withstand major fluctuations in load, e.g., con- solidated data centers. facilities, (b) The costs of idle facilities are un- allowable except to the extent that: (1) They are necessary to meet work- load requirements which may fluctuate and are allocated appropriately to all benefiting programs; or (2) Although not necessary to meet fluctuations in workload, they were necessary when acquired and are now idle because of changes in program re- quirements, efforts to achieve more ec- onomical operations, reorganization, termination, or other causes which could not have been reasonably fore- seen. Under the exception stated in this subsection, costs of idle facilities are allowable for a reasonable period of time, ordinarily not to exceed one year, depending on the initiative taken to use, lease, or dispose of such facili- ties. (c) The costs of idle capacity are nor- mal costs of doing business and are a factor in the normal flu xceed one year, depending on the initiative taken to use, lease, or dispose of such facili- ties. (c) The costs of idle capacity are nor- mal costs of doing business and are a factor in the normal fluctuations of usage or indirect cost rates from period to period. Such costs are allowable, provided that the capacity is reason- ably anticipated to be necessary to carry out the purpose of the Federal award or was originally reasonable and is not subject to reduction or elimi- nation by use on other Federal awards, subletting, renting, or sale, in accord- ance with sound business, economic, or security practices. Widespread idle ca- pacity throughout an entire facility or among a group of assets having sub- stantially the same function may be considered idle facilities. § 75.447 Insurance and indemnifica- tion. (a) Costs of insurance required or ap- proved and maintained, pursuant to the Federal award, are allowable. (b) Costs of other insurance in con- nection with the general conduct of ac- tivities are allowable subject to the following limitations: 320 Dept. of Health and Human Services § 75.447 (1) Types and extent and cost of cov- erage are in accordance with the non- Federal en ac- tivities are allowable subject to the following limitations: 320 Dept. of Health and Human Services § 75.447 (1) Types and extent and cost of cov- erage are in accordance with the non- Federal entity’s policy and sound busi- ness practice. (2) Costs of insurance or of contribu- tions to any reserve covering the risk of loss of, or damage to, Federal Gov- ernment property are unallowable ex- cept to the extent that the HHS award- ing agency has specifically required or approved such costs. (3) Costs allowed for business inter- ruption or other similar insurance must exclude coverage of management fees. (4) Costs of insurance on the lives of trustees, officers, or other employees holding positions of similar respon- sibilities are allowable only to the ex- tent that the insurance represents ad- ditional compensation (see § 75.431). The cost of such insurance when the non-Federal entity is identified as the beneficiary is unallowable. (5) Insurance against defects. Costs of insurance with respect to any costs in- curred to correct defects in the non- Federal entity’s materials or work- manship are unallowable. (6) Medical liability (malpractice) in- surance. Medical liability ins with respect to any costs in- curred to correct defects in the non- Federal entity’s materials or work- manship are unallowable. (6) Medical liability (malpractice) in- surance. Medical liability insurance is an allowable cost of Federal research programs only to the extent that the Federal research programs involve human subjects or training of partici- pants in research techniques. Medical liability insurance costs must be treat- ed as a direct cost and must be as- signed to individual projects based on the manner in which the insurer allo- cates the risk to the population cov- ered by the insurance. (c) Actual losses which could have been covered by permissible insurance (through a self-insurance program or otherwise) are unallowable, unless ex- pressly provided for in the Federal award. However, costs incurred because of losses not covered under nominal de- ductible insurance coverage provided in keeping with sound management practice, and minor losses not covered by insurance, such as spoilage, break- age, and disappearance of small hand tools, which occur in the ordinary course of operations, are allowable. (d) Contributions to a reserve for cer- tain self-insurance programs ch as spoilage, break- age, and disappearance of small hand tools, which occur in the ordinary course of operations, are allowable. (d) Contributions to a reserve for cer- tain self-insurance programs including workers’ compensation, unemployment compensation, and severance pay are allowable subject to the following pro- visions: (1) The type of coverage and the ex- tent of coverage and the rates and pre- miums would have been allowed had in- surance (including reinsurance) been purchased to cover the risks. However, provision for known or reasonably esti- mated self-insured liabilities, which do not become payable for more than one year after the provision is made, must not exceed the discounted present value of the liability. The rate used for discounting the liability must be deter- mined by giving consideration to such factors as the non-Federal entity’s set- tlement rate for those liabilities and its investment rate of return. (2) Earnings or investment income on reserves must be credited to those re- serves. (3)(i) Contributions to reserves must be based on sound actuarial principles using historical experience and reason- able assumptions. Reserve levels must be analyzed and credited to those re- serves. (3)(i) Contributions to reserves must be based on sound actuarial principles using historical experience and reason- able assumptions. Reserve levels must be analyzed and updated at least bien- nially for each major risk being in- sured and take into account any rein- surance, coinsurance, etc. Reserve lev- els related to employee-related cov- erages will normally be limited to the value of claims: (A) Submitted and adjudicated but not paid; (B) Submitted but not adjudicated; and (C) Incurred but not submitted. (ii) Reserve levels in excess of the amounts based on the above must be identified and justified in the cost allo- cation plan or indirect cost rate pro- posal. (4) Accounting records, actuarial studies, and cost allocations (or bil- lings) must recognize any significant differences due to types of insured risk and losses generated by the various in- sured activities or agencies of the non- Federal entity. If individual depart- ments or agencies of the non-Federal entity experience significantly dif- ferent levels of claims for a particular risk, those differences are to be recog- nized by the use of separate allocations or other techniques resu the non-Federal entity experience significantly dif- ferent levels of claims for a particular risk, those differences are to be recog- nized by the use of separate allocations or other techniques resulting in an eq- uitable allocation. (5) Whenever funds are transferred from a self-insurance reserve to other 321 § 75.448 45 CFR Subtitle A (10–1–24 Edition) accounts (e.g., general fund or unre- stricted account), refunds must be made to the Federal Government for its share of funds transferred, including earned or imputed interest from the date of transfer and debt interest, if ap- plicable, chargeable in accordance with applicable Federal cognizant agency for indirect cost, claims collection reg- ulations. (e) Insurance refunds must be cred- ited against insurance costs in the year the refund is received. (f) Indemnification includes securing the non-Federal entity against liabil- ities to third persons and other losses not compensated by insurance or oth- erwise. The Federal Government is ob- ligated to indemnify the non-Federal entity only to the extent expressly pro- vided for in the Federal award, except as provided in paragraph (c) of this sec- tion. § 75.448 Intellectual prop t is ob- ligated to indemnify the non-Federal entity only to the extent expressly pro- vided for in the Federal award, except as provided in paragraph (c) of this sec- tion. § 75.448 Intellectual property. (a) Patent costs. (1) The following costs related to securing patents and copyrights are allowable: (i) Costs of preparing disclosures, re- ports, and other documents required by the Federal award, and of searching the art to the extent necessary to make such disclosures; (ii) Costs of preparing documents and any other patent costs in connection with the filing and prosecution of a United States patent application where title or royalty-free license is required by the Federal Government to be con- veyed to the Federal Government; and (iii) General counseling services re- lating to patent and copyright matters, such as advice on patent and copyright laws, regulations, clauses, and em- intellectual property agree- ployee ments (See also § 75.459). (2) The following costs related to se- curing patents and copyrights are unal- lowable: (i) Costs of preparing disclosures, re- ports, and other documents, and of searching the art to make disclosures not required by the Federal award; (i curing patents and copyrights are unal- lowable: (i) Costs of preparing disclosures, re- ports, and other documents, and of searching the art to make disclosures not required by the Federal award; (ii) Costs in connection with filing and prosecuting any foreign patent ap- plication, or any United States patent application, where the Federal award does not require conveying title or a royalty-free license to the Federal Government. (b) Royalties and other costs for use of patents and copyrights. (1) Royalties on a patent or copyright or amortization of the cost of acquiring by purchase a copyright, patent, or rights thereto, necessary for the proper performance of the Federal award are allowable un- less: (i) The Federal Government already has a license or the right to free use of the patent or copyright. (ii) The patent or copyright has been adjudicated to be invalid, or has been administratively determined to be in- valid. (iii) The patent or copyright is con- sidered to be unenforceable. (iv) The patent or copyright is ex- pired. (2) Special care should be exercised in determining reasonableness where the royalties may have been arrived at as a result of less-than-arm’s-length b able. (iv) The patent or copyright is ex- pired. (2) Special care should be exercised in determining reasonableness where the royalties may have been arrived at as a result of less-than-arm’s-length bar- gaining, such as: (i) Royalties paid to persons, includ- ing corporations, affiliated with the non-Federal entity. (ii) Royalties paid to unaffiliated parties, including corporations, under an agreement entered into in con- templation that a Federal award would be made. (iii) Royalties paid under an agree- ment entered into after a Federal award is made to a non-Federal entity. (3) In any case involving a patent or copyright formerly owned by the non- Federal entity, the amount of royalty allowed must not exceed the cost which would have been allowed had the non- Federal entity retained title thereto. [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3018, Jan. 20, 2016] § 75.449 Interest. (a) General. Costs incurred for inter- est on borrowed capital, temporary use of endowment funds, or the use of the non-Federal entity’s own funds, how- ever represented, are unallowable. Fi- nancing costs (including interest) to acquire, construct, or replace capital assets are allowable, subject or the use of the non-Federal entity’s own funds, how- ever represented, are unallowable. Fi- nancing costs (including interest) to acquire, construct, or replace capital assets are allowable, subject to the conditions in this section. (b)(1) Capital assets is defined as noted in § 75.2 Capital assets. An asset 322 Dept. of Health and Human Services § 75.449 cost includes (as applicable) acquisi- tion costs, construction costs, and other costs capitalized in accordance with GAAP. (2) For non-Federal entity fiscal years beginning on or after January 1, 2016, intangible assets include patents and computer software. For software development projects, only interest at- tributable to the portion of the project costs capitalized in accordance with GAAP is allowable. (c) Conditions for all non-Federal enti- ties. (1) The non-Federal entity uses the capital assets in support of Federal awards; (2) The allowable asset costs to ac- quire facilities and equipment are lim- ited to a fair market value available to the non-Federal entity from an unre- lated (arm’s length) third party. (3) The non-Federal entity obtains financing via an arm’s-length the transaction (that is, a transaction with an lue available to the non-Federal entity from an unre- lated (arm’s length) third party. (3) The non-Federal entity obtains financing via an arm’s-length the transaction (that is, a transaction with an unrelated third party); or claims re- imbursement of actual interest cost at a rate available via such a transaction. (4) The non-Federal entity limits claims for Federal reimbursement of interest costs to the least expensive al- ternative. For example, a capital lease may be determined less costly than purchasing through debt financing, in which case reimbursement must be limited to the amount of interest de- termined if leasing had been used. (5) The non-Federal entity expenses or capitalizes allowable interest cost in accordance with GAAP. (6) Earnings generated by the invest- ment of borrowed funds pending their disbursement for the asset costs are used to offset the current period’s al- lowable interest cost, whether that cost is expensed or capitalized. Earn- ings subject to being reported to the Federal Internal Revenue Service under arbitrage requirements are ex- cludable. (7) The following conditions must apply to debt arrangements over $1 million to purchase or construct fac eported to the Federal Internal Revenue Service under arbitrage requirements are ex- cludable. (7) The following conditions must apply to debt arrangements over $1 million to purchase or construct facili- ties, unless the non-Federal entity makes an initial equity contribution to the purchase of 25 percent or more. For this purpose, ‘‘initial equity contribu- tion’’ means the amount or value of contributions made by the non-Federal entity for the acquisition of facilities prior to occupancy. (i) The non-Federal entity must re- duce claims for reimbursement of in- terest cost by an amount equal to im- puted interest earnings on excess cash flow attributable to the portion of the facility used for Federal awards. (ii) The non-Federal entity must im- pute interest on excess cash flow as fol- lows: (A) Annually, the non-Federal entity must prepare a cumulative (from the inception of the project) report of monthly cash inflows and outflows, re- gardless of the funding source. For this purpose, inflows consist of Federal re- imbursement for depreciation, amorti- zation of capitalized construction in- terest, and annual interest cost. Out- flows consist of initial equity contribu- tions, se, inflows consist of Federal re- imbursement for depreciation, amorti- zation of capitalized construction in- terest, and annual interest cost. Out- flows consist of initial equity contribu- tions, debt principal payments (less the pro-rata share attributable to the cost of land), and interest payments. (B) To compute monthly cash inflows and outflows, the non-Federal entity must divide the annual amounts deter- mined in step (i) by the number of months in the year (usually 12) that the building is in service. (C) For any month in which cumu- lative cash inflows exceed cumulative outflows, interest must be calculated on the excess inflows for that month and be treated as a reduction to allow- able interest cost. The rate of interest to be used must be the three-month Treasury bill closing rate as of the last business day of that month. (8) Interest attributable to a fully de- preciated asset is unallowable. (d) Additional conditions for states, local governments and Indian tribes. For costs to be allowable, the non-Fed- eral entity must have incurred the in- terest costs for buildings after October 1, 1980, or for land and equipment after September 1, 1995. (1) The requirement to r costs to be allowable, the non-Fed- eral entity must have incurred the in- terest costs for buildings after October 1, 1980, or for land and equipment after September 1, 1995. (1) The requirement to offset interest earned on borrowed funds against cur- rent allowable interest cost (paragraph (c)(5) of this section) also applies to earnings on debt service reserve funds. (2) The non-Federal entity will nego- tiate the amount of allowable interest cost related to the acquisition of facili- ties with asset costs of $1 million or more, as outlined in paragraph (c)(7) of this section. For this purpose, a non- 323 § 75.450 45 CFR Subtitle A (10–1–24 Edition) Federal entity must consider only cash inflows and outflows attributable to that portion of the real property used for Federal awards. (e) Additional conditions for IHEs. For costs to be allowable, the IHE must have incurred the interest costs after July 1, 1982, in connection with acquisitions of capital assets that oc- curred after that date. (f) Additional condition for nonprofit organizations. For costs to be allow- able, the nonprofit organization in- curred the interest costs after Sep- tember 29, 1995, in connection with ac- hat date. (f) Additional condition for nonprofit organizations. For costs to be allow- able, the nonprofit organization in- curred the interest costs after Sep- tember 29, 1995, in connection with ac- quisitions of capital assets that oc- curred after that date. (g) The interest allowability provi- sions of this section do not apply to a nonprofit organization subject to ‘‘full coverage’’ under the Cost Accounting Standards (CAS), as defined at 48 CFR 9903.201–2(a). The non-Federal entity’s Federal awards are instead subject to CAS 414 (48 CFR 9904.414), and CAS 417 (48 CFR 9904.417). [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3018, Jan. 20, 2016] § 75.450 Lobbying. (a) The cost of certain influencing ac- tivities associated with obtaining grants, contracts, cooperative agree- ments, or loans is an unallowable cost. Lobbying with respect to certain grants, contracts, cooperative agree- ments, and loans is governed by rel- evant statutes, including among oth- ers, the provisions of 31 U.S.C. 1352, as well as the common rule, ‘‘New Re- strictions on Lobbying’’ published at 55 FR 6736 (February 26, 1990), including definitions, and the Office of Manage- ment and Budget ‘‘Governm f 31 U.S.C. 1352, as well as the common rule, ‘‘New Re- strictions on Lobbying’’ published at 55 FR 6736 (February 26, 1990), including definitions, and the Office of Manage- ment and Budget ‘‘Government-wide Guidance for New Restrictions on Lob- bying’’ and notices published at 54 FR 52306 (December 20, 1989), 55 FR 24540 (June 15, 1990), 57 FR 1772 (January 15, 1992), and 61 FR 1412 (January 19, 1996). (b) Executive lobbying costs. Costs in- curred in attempting to improperly in- fluence either directly or indirectly, an employee or officer of the executive branch of the Federal Government to give consideration or to act regarding a Federal award or a regulatory matter are unallowable. Improper influence means any influence that induces or tends to induce a Federal employee or officer to give consideration or to act regarding a Federal award or regu- latory matter on any basis other than the merits of the matter. (c) In addition to the above, the fol- lowing restrictions are applicable to nonprofit organizations and IHEs: (1) Costs associated with the fol- lowing activities are unallowable: (i) Attempts to influence the out- comes of any Federal, state, or local initiative, or el le to nonprofit organizations and IHEs: (1) Costs associated with the fol- lowing activities are unallowable: (i) Attempts to influence the out- comes of any Federal, state, or local initiative, or election, referendum, similar procedure, through in-kind or cash contributions, endorsements, pub- licity, or similar activity; (ii) Establishing, administering, con- tributing to, or paying the expenses of a political party, campaign, political action committee, or other organiza- tion established for the purpose of in- fluencing the outcomes of elections in the United States; (iii) Any attempt to influence: (A) The introduction of Federal or state legislation; (B) The enactment or modification of any pending Federal or state legisla- tion through communication with any member or employee of the Congress or state legislature (including efforts to influence state or local officials to en- gage in similar lobbying activity); (C) The enactment or modification of any pending Federal or state legisla- tion by preparing, distributing, or using publicity or propaganda, or by urging members of the general public, or any segment thereof, to contribute to or participate in any mass dem- onstratio gisla- tion by preparing, distributing, or using publicity or propaganda, or by urging members of the general public, or any segment thereof, to contribute to or participate in any mass dem- onstration, march, rally, fund raising drive, lobbying campaign or letter writing or telephone campaign; or (D) Any government official or em- ployee in connection with a decision to sign or veto enrolled legislation; (iv) Legislative liaison activities, in- cluding attendance at legislative ses- sions or committee hearings, gathering information regarding legislation, and analyzing the effect of legislation, when such activities are carried on in support of or in knowing preparation for an effort to engage in unallowable lobbying. (2) The following activities are ex- cepted from the coverage of paragraph (c)(1) of this section: (i) Technical and factual presen- tations on topics directly related to 324 Dept. of Health and Human Services § 75.450 the performance of a grant, contract, or other agreement (through hearing testimony, statements, or letters to the Congress or a state legislature, or subdivision, member, or cognizant staff member thereof), in response to a docu- mented request (inclu ment (through hearing testimony, statements, or letters to the Congress or a state legislature, or subdivision, member, or cognizant staff member thereof), in response to a docu- mented request (including a Congres- sional Record notice requesting testi- mony or statements for the record at a regularly scheduled hearing) made by the non-Federal entity’s member of congress, legislative body or a subdivi- sion, or a cognizant staff member thereof, provided such information is readily obtainable and can be readily put in deliverable form, and further provided that costs under this section for travel, lodging or meals are unal- lowable unless incurred to offer testi- mony at a regularly scheduled Congres- sional hearing pursuant to a written request for such presentation made by the Chairman or Ranking Minority Member of the Committee or Sub- committee conducting such hearings; (ii) Any lobbying made unallowable by paragraph (c)(1)(iii) of this section to influence state legislation in order to directly reduce the cost, or to avoid material impairment of the non-Fed- eral entity’s authority to perform the grant, contract, or other agreement; or (iii) Any activity specifically author- i er to directly reduce the cost, or to avoid material impairment of the non-Fed- eral entity’s authority to perform the grant, contract, or other agreement; or (iii) Any activity specifically author- ized by statute to be undertaken with funds from the Federal award. (iv) Any activity excepted from the definitions of ‘‘lobbying’’ or ‘‘influ- encing legislation’’ by the Internal Revenue Code provisions that require nonprofit organizations to limit their participation ‘‘grass roots’’ lobbying activities in order to retain their charitable deduction sta- tus and avoid punitive excise taxes, I.R.C. sections 501(c)(3), 501(h), 4911(a), including: in direct and (A) Nonpartisan analysis, study, or research reports; (B) Examinations and discussions of broad social, economic, and similar problems; and (C) Information provided upon re- quest by a legislator for technical ad- vice and assistance, as defined by IRC sec. 4911(d)(2) and 26 CFR 56.4911– 2(c)(1)–(c)(3). (v) When a non-Federal entity seeks reimbursement (F&A) for costs, total lobbying costs must be sep- indirect arately identified in the indirect (F&A) cost rate proposal, and thereafter treated as other unallowable activity costs in eks reimbursement (F&A) for costs, total lobbying costs must be sep- indirect arately identified in the indirect (F&A) cost rate proposal, and thereafter treated as other unallowable activity costs in accordance with the proce- dures of § 75.413. (vi) The non-Federal entity must sub- mit as part of its annual indirect (F&A) cost rate proposal a certification that the requirements and standards of this section have been complied with. (See also § 75.415.) (vii)(A) Time logs, calendars, or simi- lar records are not required to be cre- ated for purposes of complying with the record keeping requirements in § 75.302 with respect to lobbying costs during any particular calendar month when: (1) The employee engages in lobbying (as defined in paragraphs (c)(1) and (c)(2) of this section) 25 percent or less of the employee’s compensated hours of employment during that calendar month; and (2) Within the preceding five-year pe- riod, the non-Federal entity has not materially misstated allowable or un- allowable costs of any nature, includ- ing legislative lobbying costs. (B) When conditions in paragraph (c)(2)(vii)(A)(1) and (2) of this section are met, non-Federal entities are not required t r un- allowable costs of any nature, includ- ing legislative lobbying costs. (B) When conditions in paragraph (c)(2)(vii)(A)(1) and (2) of this section are met, non-Federal entities are not required to establish records to support the allowability of claimed costs in ad- dition to records already required or maintained. Also, when conditions in paragraphs (c)(2)(vii)(A)(1) and (2) of this section are met, the absence of time logs, calendars, or similar records will not serve as a basis for disallowing costs by contesting estimates of lob- bying time spent by employees during a calendar month. (viii) The HHS awarding agency must establish procedures for resolving in advance, in consultation with OMB, any significant questions or disagree- ments concerning the interpretation or application of this section. Any such advance resolutions must be binding in any subsequent settlements, audits, or investigations with respect to that grant or contract for purposes of inter- pretation of this part, provided, how- ever, that this must not be construed to prevent a contractor or non-Federal 325 § 75.451 45 CFR Subtitle A (10–1–24 Edition) entity from contesting the lawfulness of such a determi rt, provided, how- ever, that this must not be construed to prevent a contractor or non-Federal 325 § 75.451 45 CFR Subtitle A (10–1–24 Edition) entity from contesting the lawfulness of such a determination. charges are a proper part of materials and supplies costs. [79 FR 75889, Dec. 19, 2014, as amended at 81 FR 3018, Jan. 20, 2016] § 75.451 Losses on other awards or contracts. Any excess of costs over income under any other award or contract of any nature is unallowable. This in- cludes, but is not limited to, the non- Federal entity’s contributed portion by reason of cost-sharing agreements or any under-recoveries through negotia- tion of flat amounts for indirect (F&A) costs. Also, any excess of costs over au- thorized levels transferred from any award or contract to another award or contract is unallowable. All losses are not allowable indirect (F&A) costs and are required to be included in the appropriate indirect cost rate base for allocation of indirect costs. funding § 75.452 Maintenance and repair costs. Costs incurred for utilities, insur- ance, security, necessary maintenance, janitorial services, repair, or upkeep of buildings and equipment (including Federal property Maintenance and repair costs. Costs incurred for utilities, insur- ance, security, necessary maintenance, janitorial services, repair, or upkeep of buildings and equipment (including Federal property unless otherwise pro- vided for) which neither add to the per- manent value of the property nor ap- preciably prolong its intended life, but keep it in an efficient operating condi- tion, are allowable. Costs incurred for improvements which add to the perma- nent value of the buildings and equip- ment or appreciably prolong their in- tended life must be treated as capital expenditures (see § 75.439). These costs are only allowable to the extent not paid through rental or other agree- ments. § 75.453 Materials and supplies costs, including costs of computing de- vices. (a) Costs incurred for materials, sup- plies, and fabricated parts necessary to carry out a Federal award are allow- able. (b) Purchased materials and supplies must be charged at their actual prices, net of applicable credits. Withdrawals from general stores or stockrooms must be charged at their actual net cost under any recognized method of pricing inventory withdrawals, consist- ently applied. Incoming transportation s. Withdrawals from general stores or stockrooms must be charged at their actual net cost under any recognized method of pricing inventory withdrawals, consist- ently applied. Incoming transportation (c) Materials and supplies used for the performance of a Federal award may be charged as direct costs. In the specific case of computing devices, charging as direct costs is allowable for devices that are essential and allo- cable, but not solely dedicated, to the performance of a Federal award. (d) Where federally-donated or fur- nished materials are used in per- forming the Federal award, such mate- rials will be used without charge. § 75.454 Memberships, subscriptions, and professional activity costs. (a) Costs of the non-Federal entity’s membership in business, technical, and professional organizations are allow- able. (b) Costs of the non-Federal entity’s subscriptions to business, professional, and technical periodicals are allowable. (c) Costs of membership in any civic or community organization are allow- able with prior approval by the HHS awarding agency or pass-through enti- ty. (d) Costs of membership in any coun- try club or social or dining club or or- ganization are unal