[Federal Register Volume 89, Number 190 (Tuesday, October 1, 2024)]
[Rules and Regulations]
[Pages 79731-79733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22520]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / 
Rules and Regulations

[[Page 79731]]



OFFICE OF MANAGEMENT AND BUDGET

2 CFR Parts 170, 184, and 200


Guidance for Federal Financial Assistance; Corrections

AGENCY: Office of Federal Financial Management, Office of Management 
and Budget.

ACTION: Final rule; correction and correcting amendments.

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

SUMMARY: The Office of Management and Budget (OMB) is correcting the 
final guidance that appeared in the Federal Register on April 22, 2024. 
This document reverses a change to a title heading and makes technical 
amendments clarifying specific language in three parts.

DATES: Effective on October 1, 2024.

FOR FURTHER INFORMATION CONTACT: Steven Mackey or Andrew Reisig at the 
OMB Office of Federal Financial Management at 
<a href="/cdn-cgi/l/email-protection#f2bfb0aadcbdbfb0dcb580939c8681b2bdbfb0dc979d82dc959d84"><span class="__cf_email__" data-cfemail="1459564c3a5b59563a5366757a6067545b59563a717b643a737b62">[email protected]</span></a> or 202-395-3993.

SUPPLEMENTARY INFORMATION: This is a summary of the revisions to OMB's 
Guidance for Federal financial assistance published April 22, 2024 (89 
FR 30046).

Section-by-Section Discussion

Title 2--Grants and Agreements

    In the document published by OMB in the Federal Register in April, 
instruction 1 at 89 FR 30107 attempted to change the heading of title 2 
from ``Grants and Agreements'' to ``Federal Financial Assistance.'' 
However, unlike chapters, subchapters, and parts, which are under the 
direct control of an agency (1 CFR 21.8), each CFR title is arranged by 
subject matter and only the Director of the Federal Register can 
establish new or update existing titles (1 CFR 8.2). Therefore, instead 
of directly changing the heading and subject matter of title 2, the 
Director of OMB has communicated the request to change the heading of 
title 2 to the Director of the Federal Register.
    Subtitle A of title 2 has been specifically assigned to OMB, so, in 
this case, the subtitle heading is treated as an OMB chapter or part 
heading. Therefore, instructions 2 and 4 in OMB's April document are 
both acceptable instructions, which will be implemented.

Appendix A to Part 170--Award Term

    In paragraph I(a)(2)(i) of appendix A to 2 CFR part 170, OMB 
mistakenly stated that the ``entity or Federal agency'' must report 
subawards described in paragraph (a)(1) of the award term to the 
Federal Funding Accountability and Transparency Act Subaward Reporting 
System (FSRS). OMB intended to state that the ``recipient'' is 
responsible for such reporting to FSRS. The technical correction is 
consistent with the prior version of the award term in appendix A to 2 
CFR part 170, which is directed at recipients--but refers to them 
throughout as ``you.'' In the revised version of the award term, OMB 
generally replaced the word ``you'' with ``recipient'' throughout for 
greater clarity, but inadvertently included the wrong terms in this 
particular instance. Consistent with 2 CFR 170.220(a), the award term 
is directed at recipients, and recipients are responsible for reporting 
subawards in FSRS. Thus, through this document, OMB replaced ``entity 
or Federal agency'' with ``recipient'' in paragraph (a)(1) of the award 
term.

Section 184.3--Definitions (Introductory Text)

    In the introductory text for the definitions in part 184, which 
implements the Build America, Buy America Act (BABA), Public Law 117-
58, OMB incorporated the meanings of acronyms and definitions from 2 
CFR 200.0 and 200.1. 88 FR 57750, 57788. OMB did this to incorporate 
the meanings of terms such as ``Federal award,'' ``subaward,'' 
``Federal agencies,'' ``recipient,'' and others, which are used in the 
same way in both parts 184 and 200. However, the document published by 
OMB in the Federal Register in April 2024 revising part 200 adjusted 
the meanings and thresholds for the terms ``equipment'' and ``supply,'' 
which OMB does not intend to apply under part 184. 89 FR 30046, 30139-
44. OMB has amended the introductory text before the definitions in 
Sec.  184.3 to clarify that the definitions of ``equipment'' and 
``supply'' are not incorporated under part 184.
    Based on the use of ``expenditures'' at Sec.  184.8 (Exemptions to 
the Buy America Preference), OMB has also amended the introductory text 
to exclude the definition of ``expenditures'' from part 200. The use of 
that term in Sec.  184.8 (i.e., ``expenditures for assistance'') refers 
to expenditures of funds by a Federal agency ``for assistance,'' as 
opposed to the definition in Sec.  200.1, which refers to expenditures 
``by a recipient or subrecipient to a project or program for which a 
Federal award is received.'' 89 FR 30046, 30139.
    OMB is not providing revised definitions of the terms 
``equipment,'' ``supply,'' or ``expenditure'' through this document, 
but merely clarifying that the definitions from Sec.  200.1 do not 
apply under part 184.

Section 200.1--Definitions

    In the document published by OMB in the Federal Register in August 
2023 establishing 2 CFR part 184, which implements BABA, Public Law 
117-58, OMB explained how the term Federal financial assistance, as 
defined at 2 CFR 200.1, should be applied under part 184. 88 FR 57750, 
57774. The preamble explained that, through issuance of the final 
guidance, OMB did not modify the existing guidance in M-22-11 on the 
proper application of that term for the purposes of BABA. Specifically, 
OMB explained that the existing guidance in OMB Memorandum M-22-11 was 
based on the definition of Federal financial assistance at section 
70912(4)(A) of BABA, providing that the term has the meaning given in 
``section 200.1 of title 2, Code of Federal Regulations (or successor 
regulations).'' Based on certain forms of assistance listed in section 
200.1, Memorandum M-22-11 established the policy that, for the purposes 
of BABA, Federal financial assistance means ``assistance that non-
Federal entities receive or administer in the form of grants, 
cooperative agreements, non-cash contributions or donations of 
property, direct assistance, loans, loan guarantees, and other types of 
financial assistance.'' (Emphasis added) Section 70912(4)(B) of BABA 
also provides that the term Federal financial assistance includes, but 
is not

[[Page 79732]]

limited to, all expenditures ``by a Federal agency to a non-Federal 
entity [for assistance] for an infrastructure project,'' except that it 
does not include certain specified expenditures relating to a major 
disaster or emergency. Based on the policy in Memorandum M-22-11, which 
applied BABA to loans and loan guarantees, the part 184 preamble 
explained how the definition from BABA 70912(4)(A) and 2 CFR 200.1 
should be applied for the purposes of part 184. 88 FR 57750, 57774.
    OMB subsequently rescinded and replaced Memorandum M-22-11 on 
October 25, 2023, by issuing Memorandum M-24-02. Memorandum M-24-02 
continues to provide that, for the purposes of BABA, Federal financial 
assistance means ``assistance that non-Federal entities receive or 
administer in the form of grants, cooperative agreements, non-cash 
contributions or donations of property, direct assistance, loans, loan 
guarantees, and other types of financial assistance.''
    To clarify how the term ``Federal financial assistance'' is applied 
for purposes of BABA under part 184, OMB has added a new paragraph to 
the definition at Sec.  200.1 specifically addressing this topic based 
on the part 184 preamble and associated OMB guidance memoranda. This 
revision is intended to reduce any ambiguity in the 2 CFR text on which 
forms of Federal financial assistance are included for purposes of part 
184. The revision is consistent with OMB's existing policy with respect 
to BABA applicability to loans and loan guarantees, which is reflected 
in the part 184 preamble and associated policy memoranda.

Section 200.431--Compensation--Fringe Benefits

    In the document published by OMB in the Federal Register in April, 
OMB explained in the preamble at 89 FR 30095 that, in the proposed 
guidance, ``OMB proposed revising section 200.431 on fringe benefits to 
require recipients and subrecipients to allocate payments for unused 
leave as general administrative expenses or include them in a fringe 
benefit rate with cognizant agency approval.'' In its response to 
comments at 89 FR 30095, OMB stated that it revised paragraph (b)(3)(i) 
of Sec.  200.431 ``to remove the requirement that agencies must include 
certain costs in fringe benefit rates only with the approval of the 
cognizant agency for indirect costs.'' (Emphasis added) OMB explained 
that it made this change in recognition ``that some recipients might 
not have a cognizant agency for indirect costs.'' However, in removing 
the requirement to obtain cognizant agency approval, OMB also 
inadvertently removed the option to include these payments in a fringe 
benefit rate under any circumstances, which--as the preamble text 
reflected--was not its intent. Thus, through this document, OMB 
inserted the following text at the end of paragraph (b)(3)(i) of Sec.  
200.431: ``or included in the fringe benefit rate.''
    In addition, OMB further revised paragraph (b)(3)(i) of Sec.  
200.431 through this document to replace the word ``must'' with 
``should'' in the instruction to either allocate these payments for 
unused leave as a general administrative expense to all activities or 
include them in fringe benefit rates. This revision is consistent with 
prior OMB guidance on this topic in the ``2 CFR Frequently Asked 
Questions'' (2 CFR FAQ) published on May 3, 2021, which was a source of 
the text at paragraph (b)(3)(i) of Sec.  200.431. See 2 CFR FAQ, at Q-
104. All payments for unused leave must still be allocated in 
accordance with the cost principles in subpart E. See, e.g., 2 CFR 
200.401(a). Paragraph (b)(3)(i), as revised, continues to describe the 
two options that will generally be used for these types of payments 
under subpart E.

Correction to Final Rule Published April 2024

    In FR Doc. 2024-07496, appearing at 89 FR 30046 in the Federal 
Register of April 22, 2024, on page 30108, in the first column, remove 
instruction 1 for title 2.

List of Subjects

2 CFR Part 170

    Colleges and universities, Grant programs, Hospitals, International 
organizations, Loan programs, Reporting and recordkeeping requirements.

2 CFR Parts 184 and 200

    Administration of Federal financial assistance, Administrative 
practice and procedure, Federal financial assistance programs.

    For the reasons stated in the preamble, the Office of Management 
and Budget corrects 2 CFR chapters I and II by making the following 
correcting amendments:

PART 170--REPORTING SUBAWARD AND EXECUTIVE COMPENSATION INFORMATION

0
1. The authority citation for part 170 continues to read as follows:

    Authority: 31 U.S.C. 503; 31 U.S.C. 6102; 31 U.S.C. 6307; Pub. 
L. 109-282; Pub. L. 110-252, Pub. L. 113-101, Pub. L. 117-40.

Appendix A to part 170 [Amended]

0
2. In appendix A to part 170, amend paragraph I(a)(2)(i) by removing 
the words ``entity or Federal agency'' and adding, in their place, the 
word ``recipient''.

PART 184--BUY AMERICA PREFERENCES FOR INFRASTRUCTURE PROJECTS

0
3. The authority citation for part 184 continues to read as follows:

    Authority: Pub. L. 117-58, 135 Stat. 429.


0
4. In Sec.  184.3, revise the introductory text to read as follows:


Sec.  184.3   Definitions.

    Acronyms used in this part have the same meaning as provided in 2 
CFR 200.0. Terms not defined in this part have the same meaning as 
provided in 2 CFR 200.1, except for the terms ``equipment,'' 
``expenditures,'' and ``supplies,'' which are not specifically defined 
for this part. As used in this part:
* * * * *

PART 200--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND 
AUDIT REQUIREMENTS FOR FEDERAL AWARDS

0
5. The authority citation for part 200 continues to read as follows:

    Authority: 31 U.S.C. 503; 31 U.S.C. 6101-6106; 31 U.S.C. 6307; 
31 U.S.C. 7501-7507.


0
6. In Sec.  200.1, in the definition of ``Federal financial 
assistance,'' add paragraph (5) to read as follows:


Sec.  200.1   Definitions.

* * * * *
    Federal financial assistance * * *
    (5) For part 184 of this title, in addition to the forms of 
assistance listed in paragraph (1) of this definition, Federal 
financial assistance also includes assistance that recipients or 
subrecipients receive or administer in the form of:
    (i) Loans; and
    (ii) Loan Guarantees.
* * * * *

0
7. In Sec.  200.431, revise paragraph (b)(3)(i) to read as follows:


Sec.  200.431   Compensation--fringe benefits.

* * * * *
    (b) * * *
    (3) * * *
    (i) When a recipient or subrecipient uses the cash basis of 
accounting, the cost of leave is recognized in the period that the 
leave is taken and paid for. Payments for unused leave when an

[[Page 79733]]

employee retires or terminates employment are allowable in the year of 
payment and should be allocated as a general administrative expense to 
all activities or included in the fringe benefit rate.
* * * * *

Deidre A. Harrison,
Deputy Controller, performing the delegated duties of the Controller 
Office of Federal Financial Management.
[FR Doc. 2024-22520 Filed 9-26-24; 4:15 pm]
BILLING CODE 3110-01-P


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