`[Federal Register Volume 90, Number 2 (Friday, January 3, 2025)]
[Rules and Regulations]
[Pages 189-199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30636]



 ========================================================================
 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. 
 
 ========================================================================
 

  Federal Register / Vol. 90, No. 2 / Friday, January 3, 2025 / Rules 
and Regulations  

[[Page 189]]



DEPARTMENT OF ENERGY

2 CFR Part 930

10 CFR Part 603

RIN 1991-AC19


Update and Relocation of the Department of Energy Technology 
Investment Agreement Regulations

AGENCY: U.S. Department of Energy.

ACTION: Interim final rule; request for comments.

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

SUMMARY: The Department of Energy (DOE or the Department) is issuing 
this interim final rule (IFR) to update, streamline, and relocate the 
policies, procedures, and provisions that are applicable to the award 
and administration of certain other transaction (OT) agreements awarded 
under DOE's OT authority provided in the Energy Policy Act of 2005's 
amendments to the Department of Energy Organization Act. DOE expects 
that the simplification of the implementing regulations will enable 
improved use OT Agreements beyond the Technology Investment Agreements 
(TIAs) contemplated in the original regulations. This IFR will promote 
more uniform application of this authority and the policies and 
provisions for the award and administration of it.

DATES: Effective January 3, 2025. DOE will accept comments, data, and 
information regarding this IFR no later than March 4, 2025.

ADDRESSES: Interested persons are encouraged to submit comments using 
the Federal eRulemaking Portal at www.regulations.gov. Follow the 
instructions in section III of this document, Public Participation, for 
submitting comments. Alternatively, interested persons may submit 
comments, identified by ``RIN 1991-AC19--2024 Other Transaction 
Agreements'', by any of the following methods:
    [ssquf] Email: [email protected]. Include ``RIN 1991-AC19--
2024 Other Transaction Agreements'' in the subject line of the message.
    [ssquf] Postal Mail: U.S. Department of Energy, Office of 
Acquisition Management, MA-611, 1000 Independence Avenue SW, 
Washington, DC 20585. Include the markings ``RIN 1991-AC19 2024 Other 
Transaction Agreements''. However, comments by email are encouraged.
    Docket: The docket, which includes Federal Register notices, 
comments, and other supporting documents/materials, is available for 
review at www.regulations.gov. All documents in the docket are listed 
in the www.regulations.gov index. However, some documents listed in the 
index, such as those containing information that is exempt from public 
disclosure, may not be publicly available.
    The docket web page can be found at the www.regulations.gov web 
page associated with RIN 1991-AC19. The docket web page contains simple 
instructions on how to access all documents, including public comments, 
in the docket. See section III of this document, Public Participation, 
for information on how to submit comments through www.regulations.gov. 
Please put ``RIN 1991-AC19 2024 Other Transaction Agreements'' in the 
subject line when sending an email.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Bonnell, U.S. Department 
of Energy, Office of Acquisition Management by email at 
[email protected] or (301) 922-7101.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Discussion
III. Section by Section Analysis
IV. Public Participation
V. Procedural Requirements
    A. Executive Orders 12866, 13563 and 14094
    B. Administrative Procedure Act
    C. Regulatory Flexibility Act
    D. Paperwork Reduction Act
    E. National Environmental Policy Act of 1969 (NEPA)
    F. Executive Order 13132
    G. Executive Order 12988
    H. Executive Order 13175
    I. Unfunded Mandates Reform Act of 1995
    J. Treasury and General Government Appropriations Act, 2001
    K. Executive Order 13211
    L. Congressional Notification
VI. Approval by the Office of the Secretary of Energy

I. Background

    DOE's OT authority is provided in sections 646(a) and (g) of the 
Department of Energy Organization Act (Pub L. 95-91, as amended) (42 
U.S.C. 7101 et seq.). Section 646(a) (42 U.S.C. 7256(a)) is a general 
authority for DOE to enter into contracts, leases, cooperative 
agreements or ``other similar transactions,'' and to make payments to 
public or private entities as the Secretary ``may deem to be necessary 
or appropriate to carry out functions now or hereafter vested in the 
Secretary.'' Section 646(g) (42 U.S.C. 7256(g)) was added to the DOE 
Organization Act by the Energy Policy Act of 2005 (Pub. L. 109-58) as 
an OT authority directed specifically to research, development, and 
demonstration (RD&D).
    The authority provided under 42 U.S.C. 7256(g) provides that the 
Secretary of Energy has the same authority to enter into transactions 
as the Secretary of Defense under 10 U.S.C. 2371 in carrying out RD&D 
projects.\1\ This authority includes statutory limits on its use, but 
also authorizes increased flexibilities not available under subsection 
(a) ``General Authority'' related to intellectual property and data 
protection.
---------------------------------------------------------------------------

    \1\ 10 U.S.C. 2371 was transferred to 10 U.S.C. 4021 in 2021 
(Pub. L. 116-283, as amended by Pub. L. 117-81).
---------------------------------------------------------------------------

    Section 646(g)(6) of the Energy Policy Act (42 U.S.C. 7256(g)(6)) 
required DOE to publish guidelines for transactions under subsection 
(g) not later than 90 days after the enactment of the statute. DOE 
published an interim final rule (70 FR 69250) on November 15, 2005, and 
a final rule on May 9, 2006 (71 FR 27158). At least in part because of 
this limited statutory timeframe, the original regulations at 10 CFR 
part 603 were largely modeled on the applicable DOD Technology 
Investment Agreements (TIAs) and established TIAs as the mechanism for 
awarding OT agreements under section 7256(g). The purposes of a TIA are 
to reduce barriers that prevent some entities from participating in 
DOE's RD&D programs and broaden the technology base available to meet 
DOE mission requirements. However, TIAs

[[Page 190]]

are just one implementation of OTs available under 42 U.S.C. 7256(g).
    OT agreements broadly, including TIAs, are more flexible than 
standard procurement and financial assistance instruments. They allow 
the DOE to negotiate commercial terms that would be otherwise 
unavailable in a procurement or financial assistance instrument in a 
manner that is more familiar to many commercial entities. Thus, unless 
otherwise noted in this regulation, the laws and regulations applicable 
to procurement and financial assistance instruments do not apply. This 
increased flexibility is used to: (1) strengthen our nation's economic 
and energy security; (2) promote scientific and technological 
innovation; (3) reduce barriers to participation in RD&D programs by 
nontraditional government performers and entities, including small 
businesses and disadvantaged entities; (4) promote new relationships 
among performers in the U.S. technology base; (5) stimulate performers 
to develop and use new business practices and disseminate best 
practices throughout the U.S. technology base; or (6) stimulate RD&D of 
energy-related technologies, systems, and processes for use by Federal 
agencies and the public.
    In this IFR, DOE is removing miscellaneous references to outdated 
regulations from the provisions governing the use of OT agreements. DOE 
is aligning the revised provisions with the authorizing statute and 
improves the clarity, structure, organization, and administrative 
efficiency of the provisions to make them applicable to 42 U.S.C. 
7256(g) OT agreements beyond the TIAs contemplated in the original 
regulations. In conjunction with the revisions under this IFR, DOE 
published a policy guide, ``Department of Energy Guide to Other 
Transactions'' that includes the internal DOE processes and specific 
functions and responsibilities of DOE staff from the provisions removed 
from 10 CFR part 603.

II. Discussion

    While some mechanisms (procurement and financial assistance) can 
meet many of the Department's missions, certain programs require more 
innovation for successful implementation and would benefit from the 
flexibility that OT agreements can provide. To provide the efficiencies 
in the award and administration of OT agreements needed to achieve 
DOE's mission, there is a need to remove references to outdated 
regulations, internal processes, and obsolete and unnecessarily 
restrictive language from the provisions governing the use of OT 
agreements. This IFR revises existing OTA regulatory provisions and 
aligns them with the authorizing statute to improve the clarity, 
structure, organization, and administrative efficiency and to make them 
applicable to all OT agreements awarded under DOE's authority at 42 
U.S.C. 7256(g), not just TIAs. DOE is removing in its entirety and 
reserving 10 CFR part 603, relocating it in 2 CFR part 930, and 
renaming it ``Other Transaction Agreements.'' DOE is removing the 
provisions of 10 CFR part 603 that are: specific to internal DOE 
processes or procedures; specific to the functions and responsibilities 
of DOE staff; and unnecessarily restrictive for use in all OT 
agreements.
    DOE is relocating and revising the remaining provisions of 10 CFR 
part 603 and adding a deviation provision to 2 CFR part 930 that, 
consistent with other regulations and policies, provides DOE the 
authority to deviate from the issuance or use of any policy, procedure, 
solicitation provision, article, method, or practice of conducting 
actions of any kind at any stage of the OT award process or 
administration period that is inconsistent with the OT regulations.

III. Section by Section Analysis

    The following discussion details specific revisions made in this 
IFR by listing sections from current 10 CFR part 603 that were not 
included in the new 2 CFR part 930, discussing entirely new additions 
to 2 CFR part 930, and explaining changes to sections of the current 10 
CFR part 603 that were retained in new 2 CFR part 930.

Sec.  930.115 Deviation Authority

    DOE is adding a new provision at 2 CFR 930.115 that is 
substantially similar to provisions already present and widely used in 
other DOE regulations to address agency deviations from the 
regulations. The new provision entitled ``Deviation authority'' gives 
authority to the cognizant Senior Procurement Executive (SPE), as 
defined by 41 U.S.C. 1702(c), for DOE or National Nuclear Security 
Administration to approve the issuance or use of a policy, procedure, 
provision, article, method, or practice of conducting actions of any 
kind at any stage of the award process or administration period that is 
inconsistent with part 930. The new language also requires a program 
office seeking a deviation to submit a request to the SPE justifying 
the deviation, and creates a process whereby a deviation from the 
policy, procedure, provision, article, method, or practice may be 
requested and approved by the cognizant DOE official.

Sections Removed

    DOE is removing provisions from 10 CFR part 603 that pertain to 
internal processes and procedures or that describe the function or 
responsibility of DOE in its decisions to award and administer OT 
agreements, including TIAs. The information provided in the following 
provisions has been included in internal guidance and training 
materials created for DOE personnel including DOE's Guide to Other 
Transactions.

 Sec.  603.200: Contracting Officer Responsibilities
 Sec.  603.225: Benefits of Using a TIA
 Sec.  603.300: Difference Between an Expenditure-Based and a 
Fixed-Support TIA
 Sec.  603.305: Use of a Fixed-Support TIA
 Sec.  603.310: Use of an Expenditure-Based TIA
 Sec.  603.315: Advantages of a Fixed-Support TIA
 Sec.  603.405: Announcement Format
 Sec.  603.410: Announcement Content
 Sec.  603.500: Pre-Award Business Evaluation
 Sec.  603.505: Program Resources
 Sec.  603.510: Recipient Qualifications
 Sec.  603.515: Qualification of a Consortium
 Sec.  603.520: Reasonableness of a Total Project Funding
 Sec.  603.540: Acceptability of Fully Depreciated Real 
Property or Equipment
 Sec.  603.545: Acceptability of Costs of Prior RD&D
 Sec.  603.550: Acceptability of Intellectual Property
 Sec.  603.555: Value of Other Contributions
 Sec.  603.560: Estimate of Project Expenditures
 Sec.  603.565: Use of a Hybrid Instrument
 Sec.  603.570: Determining Milestone Payment Amounts
 Sec.  603.575: Repayment of Federal Cost Share
 Sec.  603.600: Administrative Matters
 Sec.  603.605: General Policy
 Sec.  603.610: Flow Down Requirements
 Sec.  603.630: Use Federally Approved Indirect Cost Rates for 
For-Profit Firms
 Sec.  603.635: Cost Principles for Nonprofit Participants
 Sec.  603.650: Designation of Auditor for For-Profit 
Participants
 Sec.  603.670: Flow Down Audit Requirements to Subrecipients
 Sec.  603.675: Reporting Use of IPA for Subawards
 Sec.  603.685: Management of Real Property and Equipment by 
Nonprofit Firms

[[Page 191]]

 Sec.  603.690: Requirements for Federally-Owned Property
 Sec.  603.695: Requirements for Supplies
 Sec.  603.800: Scope
 Sec.  603.810: Method and Frequency of Payment Requests
 Sec.  603.815: Withholding Payments
 Sec.  603.820: Interest on Advance Payments
 Sec.  603.835: Program Income Requirements
 Sec.  603.850: Marking of Data
 Sec.  603.855: Protected Data
 Sec.  603.870: Marking of Documents Related to Inventions
 Sec.  603.880: Reports Requirements
 Sec.  603.885: Updated Program Plans and Budgets
 Sec.  603.890: Final Performance Report
 Sec.  603.895: Protection of Information in Programmatic 
Reports
 Sec.  603.900: Receipt of Final Performance Report
 Sec.  603.910: Access to a For-Profit Participant's Records
 Sec.  603.1000: Contracting Officer's Responsibilities at Time 
of Award
 Sec.  603.1005: General Responsibilities
 Sec.  603.1010: Substantive Issues
 Sec.  603.1015: Execution
 Sec.  603.1020: File Documents
 Sec.  603.1100: Contracting Officer's Post-Award 
Responsibilities
 Sec.  603.1105: Advance Payments or Payable Milestones
 Sec.  603.1110: Other Payment Responsibilities
 Sec.  603.1120: Award-Specific Audits
 Sec.  603.1200-1340: Definitions and Following Terms
 Appendix A Applicable Federal Statutes, Executive Orders, and 
Government-wide Regulations
 Appendix B Flow Down Requirements for Purchases of Goods and 
Services

Sections Revised and Renumbered

    DOE is revising the following provisions to update, clarify, 
streamline, or eliminate coverage that is unclear, obsolete, or 
unnecessarily duplicates the internal guidance and roles and 
responsibilities of DOE staff where appropriate. The revisions do not 
substantially change the existing requirements or how DOE and DOE 
performers adhere to the OT regulations.
     Sec.  603.100 Purpose has been revised and renumbered to 
Sec.  930.100 Purpose.
     Sec.  603.105 Description has been revised and renumbered 
to Sec.  930.400 Use of Technology Investment Agreements (TIAs).
     Sec.  603.110 Use of TIAs has been revised and renumbered 
to Sec.  930.400 Use of Technology Investment Agreements (TIAs).
     Sec.  603.115 Approval Requirements has been revised and 
renumbered to Sec.  930.110 Approval Requirements.
     Sec.  603.120 Contracting Officer Warrant Requirements has 
been revised and included in Sec.  930.110 Approval Requirements.
     Sec.  603.125 Applicability of Other Parts of the DOE 
Assistance Regulations has been revised and renumbered to Sec.  930.120 
Nonprocurement debarment and suspension.
     Sec.  603.205 Nature of the Project has been revised and 
renumbered to Sec.  930.105 Other transaction (OT) agreements.
     Sec.  603.210 Recipients has been revised and renumbered 
to Sec.  930.405 TIA awardees.
     Sec.  603.215 Recipient's Commitment and Cost Sharing has 
been revised and renumbered to Sec.  930. 125 Cost Sharing.
     Sec.  603.220 Government Participation has been revised 
and renumbered to Sec.  930.415 Government Participation.
     Sec.  603.230 Fee or Profit has been revised and 
renumbered to Sec.  930. 130 Fee or Profit.
     Sec.  603.400 Competitive Procedures has been revised and 
renumbered to Sec.  930.135 Competition.
     Sec.  603.415 Cost Sharing has been revised and included 
in Sec.  930.125 Cost Sharing.
     Sec.  603.420 Disclosure of Information has been revised 
and renumbered to Sec.  930.140 Disclosure of Information.
     Sec.  603.525 Value & Reasonableness of the Recipient's 
Cost Sharing Contribution has been revised and included in Sec.  
930.125 Cost Sharing.
     Sec.  603.530 Acceptable Cost Sharing has been revised and 
included in Sec.  930.125 Cost Sharing.
     Sec.  603.535 Value of Proposed Real Property or Equipment 
has been revised and renumbered to Sec.  930.220 Real property and 
equipment.
     Sec.  603.615 Financial Management Standards for For-
Profit Firms has been revised and renumbered to Sec.  930.205 Financial 
Management Standards.
     Sec.  603.620 Financial Management Standards for Nonprofit 
Participants has been revised and renumbered to Sec.  930.205 Financial 
Management Standards.
     Sec.  603.625 Cost Principles or Standards Applicable to 
For-Profit Firms has been revised and renumbered to Sec.  930.210 Cost 
Principles and Standards.
     Sec.  603.640 Audits of For-Profit Firms has been revised 
and included in Sec.  930.215 Audit requirements.
     Sec.  603.645 Periodic Audits and Award-Specific Audits of 
For-Profit Participants has been revised and included in Sec.  930.215 
Audit requirements.
     Sec.  603.655 Frequency of Periodic Audits of For-Profit 
Participants has been revised and included in Sec.  930.215 Audit 
requirements.
     Sec.  603.660 Other Audit Requirements has been revised 
and included in Sec.  930.215 Audit requirements.
     Sec.  603.665 Periodic Audits of Nonprofit Participants 
has been revised and included in Sec.  930.215 Audit requirements.
     Sec.  603.680 Purchase of real property and equipment by 
for-profit firms has been revised and included in Sec.  930.410.
     Sec.  603.700 Standards for Purchasing Systems of For-
Profit Firms and Sec.  603.705 Standards for Purchasing Systems of 
Nonprofit Organizations have been revised and included in Sec.  930.225 
Purchasing system standards.
     Sec.  603.805 Payment Methods has been revised and 
renumbered to Sec.  930.300 Payment Methods.
     Sec.  603.825 Government Approval of Change in Plans has 
been revised and renumbered to Sec.  930.305 Government Approval of 
Change in Plans.
     Sec.  603.830 Pre-Award Costs has been revised and 
renumbered to Sec.  930.310 Pre-Award Costs.
     Sec.  603.840 Data and Intellectual Property Rights has 
been revised and renumbered to Sec.  930.315 Negotiating Data and 
Patent Rights.
     Sec.  603.845 Data Rights Requirements has been revised 
and renumbered to Sec.  930.320 Data Rights.
     Sec.  603.860 Rights to Inventions has been revised and 
renumbered to Sec.  930.325 Rights in Inventions.
     Sec.  603.865 March-In Rights has been revised and 
included in Sec.  930.325 Rights in Inventions.
     Sec.  603.875 Foreign Access to Technology and U.S. 
Competitiveness Provisions has been revised and renumbered to Sec.  
930.330 Research Technology and Security and U.S. Competitiveness 
Provisions.
     Sec.  603.905 Record Retention Requirements has been 
revised and renumbered to Sec.  930.335: Record Retention Requirements.
     Sec.  603.915 Access to a Nonprofit Participant's Records 
has been revised and renumbered to Sec.  930.340: Access to Records.
     Sec.  603.920 Termination and Enforcement Requirements has 
been revised and renumbered to Sec.  930.345 Noncompliance and 
Termination Requirements.

[[Page 192]]

     Sec.  603.1115 Single Audits has been revised and included 
in Sec.  930.215 Audit requirements.

IV. Public Participation

    DOE will accept comments, data, and information regarding this IFR 
on or before the date provided in the DATES section at the beginning of 
this IFR. Interested parties may submit comments, data, and other 
information using any of the methods described in the ADDRESSES section 
at the beginning of this document.
    Submitting comments via www.regulations.gov. The 
www.regulations.gov web page will require you to provide your name and 
contact information. Your contact information will not be publicly 
viewable except for your first and last names, organization name (if 
any), and submitter representative name (if any). If your comment is 
not processed properly because of technical difficulties, DOE will use 
this information to contact you. If DOE cannot read your comment due to 
technical difficulties and cannot contact you for clarification, DOE 
may not be able to consider your comment.
    However, your contact information will be publicly viewable if you 
include it in the comment itself or in any documents attached to your 
comment. Any information that you do not want to be publicly viewable 
should not be included in your comment, nor in any document attached to 
your comment. Otherwise, persons viewing comments will see only first 
and last names, organization names, correspondence containing comments, 
and any documents submitted with the comments.
    Do not submit to www.regulations.gov information the disclosure of 
which is restricted by statute, such as trade secrets and commercial or 
financial information (hereinafter referred to as Confidential Business 
Information (``CBI'')). Comments submitted through www.regulations.gov 
cannot be claimed as CBI. Comments received through the website will 
waive any CBI claims for the information submitted. For information on 
submitting CBI, see the Confidential Business Information section 
below.
    DOE processes submissions made through www.regulations.gov before 
posting. Normally, comments will be posted within a few days of being 
submitted. However, if large volumes of comments are being processed 
simultaneously, your comment may not be viewable for up to several 
weeks. Please keep the comment tracking number that www.regulations.gov 
provides after you have successfully uploaded your comment.
    Submitting comments via email or postal mail. Comments and 
documents submitted via email or postal mail also will be posted to 
www.regulations.gov. If you do not want your personal contact 
information to be publicly viewable, do not include it in your comment 
or any accompanying documents. Instead, provide your contact 
information in a cover letter. Include your first and last names, email 
address, telephone number, and optional mailing address. The cover 
letter will not be publicly viewable as long as it does not include any 
comments.
    Include contact information each time you submit comments, data, 
documents, and other information to DOE. If you submit via postal mail, 
please provide all items on a CD, if feasible, in which case it is not 
necessary to submit printed copies. No telefacsimiles (faxes) will be 
accepted.
    Comments, data, and other information submitted to DOE 
electronically should be provided in PDF (preferred), Microsoft Word or 
Excel, WordPerfect, or text (ASCII) file format. Provide documents that 
are written in English, and that are free of any defects or viruses. 
Documents should not contain special characters or any form of 
encryption and, if possible, they should carry the electronic signature 
of the author.
    Confidential Business Information. Pursuant to 10 CFR 1004.11, any 
person submitting information that he or she believes to be 
confidential and exempt by law from public disclosure should submit via 
email or postal mail two well-marked copies: One copy of the document 
marked ``confidential'' including all the information believed to be 
confidential, and one copy of the document marked ``non-confidential'' 
that deletes the information believed to be confidential. Submit these 
documents via email or on a CD, if feasible. DOE will make its own 
determination about the confidential status of the information and will 
treat it according to its determination. It is DOE's policy that all 
comments, including any personal information provided in the comments, 
may be included in the public docket, without change and as received, 
except for information deemed to be exempt from public disclosure.

V. Procedural Requirements

A. Executive Orders 12866, 13563, and 14094

    Executive Order (E.O.) 12866, ``Regulatory Planning and Review,'' 
58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by E.O. 
13563, ``Improving Regulation and Regulatory Review,'' 76 FR 3821 (Jan. 
21, 2011) and amended by E.O. 14094, ``Modernizing Regulatory Review,'' 
88 FR 21879 (April 11, 2023), requires agencies, to the extent 
permitted by law, to (1) propose or adopt a regulation only upon a 
reasoned determination that its benefits justify its costs (recognizing 
that some benefits and costs are difficult to quantify); (2) tailor 
regulations to impose the least burden on society, consistent with 
obtaining regulatory objectives, taking into account, among other 
things, and to the extent practicable, the costs of cumulative 
regulations; (3) select, in choosing among alternative regulatory 
approaches, those approaches that maximize net benefits (including 
potential economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity); (4) to the extent 
feasible, specify performance objectives, rather than specifying the 
behavior or manner of compliance that regulated entities must adopt; 
and (5) identify and assess available alternatives to direct 
regulation, including providing economic incentives to encourage the 
desired behavior, such as user fees or marketable permits, or providing 
information upon which choices can be made by the public.
    DOE emphasizes as well that Executive Order 13563 requires agencies 
to use the best available techniques to quantify anticipated present 
and future benefits and costs as accurately as possible. In its 
guidance, the Office of Information and Regulatory Affairs (OIRA) has 
emphasized that such techniques may include identifying changing future 
compliance costs that might result from technological innovation or 
anticipated behavioral changes. For the reasons stated in the preamble, 
this regulatory action is consistent with these principles.
    Section 6(a) of E.O. 12866 also requires agencies to submit 
``significant regulatory actions''' to OIRA for review. OIRA has 
determined that this regulatory action does not constitute a 
``significant regulatory action'' under Executive Order 12866. 
Accordingly, this action is not subject to review under that Executive 
Order by OIRA.
    Consistent with Executive Orders 12866, 13563 and 14094, DOE issues 
this IFR only on a reasoned determination that the benefits of the rule 
justify its costs, and, in choosing among alternative regulatory 
approaches, DOE has selected those approaches that maximize net 
benefits.

[[Page 193]]

In this IFR, DOE made a broad but largely procedural revision of its 
other transaction regulation to update and streamline the policies, 
procedures, and provisions that are currently applicable to its other 
transaction agreements.
    The IFR updates, clarifies, or eliminates coverage that is unclear, 
obsolete, or unnecessarily duplicates the internal guidance and roles 
and responsibilities of Federal staff; streamlines the coverage's 
policies and performer procedures where appropriate; and adds a new 
provision in order to provide the standard departmental deviation 
authority provision language. The IFR includes several minor provision 
revisions, none of which are substantial and in total will have 
negligible impact on DOE's operations, its performers, or the economy. 
The revisions do not in any specific case, or in total, substantially 
change the existing requirements under the existing OT regulations or 
how DOE and DOE performers adhere to the OT regulations. The IFR does 
not generate any additional costs.
    Finally, the IFR results in benefits to the public. Because the OT 
regulation has not had a comprehensive update in years, it contains 
outdated and duplicative content. Additionally, it has citations to 
outdated regulations and contains sections that are more appropriate 
for internal procedures and policies. The IFR streamlines the OT 
regulations, make it easier to read, and reflects current practice and 
requirements.

B. Administrative Procedure Act

    The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 
generally requires public notice and an opportunity for comment before 
a rule becomes effective. Section 553(b) of the APA, however, exempts 
from the APA's notice and comment procedures rulemakings that involve 
``rules of agency organization, procedure, or practice.'' This 
exemption is applicable for rules that are primarily directed toward 
improving the efficient and effective operations of an agency. Mendoza 
v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014) (internal citations and 
quotations omitted). As a rulemaking relating to policies, procedures, 
and provisions that are applicable to the award and administration of 
certain OT agreements awarded under DOE's OT authority, DOE has 
determined that this rulemaking is procedural and satisfies the 
exemption. Therefore, notice of proposed rulemaking (and comment 
thereon) is not required for the removal and reservation of 10 CFR part 
603 and issuance of new 2 CFR part 930 in this IFR.
    Although this interim final rule is effective immediately, comments 
are solicited from interested members of the public on all aspects of 
the interim final rule. The Department intends to issue a final rule 
following receipt and review of comments in response to the interim 
final rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment. As discussed 
previously, DOE has determined that prior notice and opportunity for 
public comment is unnecessary under the APA. Because a notice of 
proposed rulemaking is not required for this action pursuant to 5 
U.S.C. 553, or any other law, no regulatory flexibility analysis has 
been prepared for this interim final rule. See 5 U.S.C. 601(2), 603(a).

D. Paperwork Reduction Act of 1995

    This regulatory action does not impose any additional reporting or 
recordkeeping requirements subject to approval under the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq.

E. National Environmental Policy Act of 1969

    DOE has analyzed this final rule in accordance with NEPA and DOE's 
NEPA implementing regulations (10 CFR part 1021). DOE has determined 
that this final rule is covered under the categorical exclusion located 
at 10 CFR part 1021, subpart D, appendix A, Categorical Exclusion A5 
because this final rule revises existing regulations at 10 CFR part 
603. The changes update and clarify OT regulations. DOE has considered 
whether this action would result in extraordinary circumstances that 
would warrant preparation of an Environmental Assessment or EIS and has 
determined that no such extraordinary circumstances exist. Therefore, 
DOE has determined that this rulemaking does not require an 
Environmental Assessment or an EIS.

F. Executive Order 13132

    Executive Order 13132, ``Federalism'', 64 FR 43255 (August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt state law or that 
have federalism implications. Agencies are required to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and carefully assess 
the necessity for such actions. DOE has examined the IFR and has 
determined that it does not preempt State law and does not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

G. Executive Order 12988

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

H. Executive Order 13175

    Under Executive Order 13175, ``Consultation and Coordination with 
Indian Tribal Governments,'' 65 FR 67249 (Nov. 6, 2000), DOE may not 
issue a discretionary rule that has Tribal implications or that imposes 
substantial direct compliance costs on Indian Tribal governments. DOE 
has determined that this IFR will not have such effects and has 
concluded that Executive Order 13175 does not apply to this IFR.

[[Page 194]]

I. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, Tribal governments. Subsection 101(5) of title 
I of that law defines a Federal intergovernmental mandate to include a 
regulation that would impose upon State, local, or Tribal governments 
an enforceable duty, except a condition of Federal assistance or a duty 
arising from participating in a voluntary Federal program. Title II of 
that law requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments, in the 
aggregate, or the private sector, other than to the extent such actions 
merely incorporate requirements specifically set forth in a statute. 
Section 202 of the title requires a Federal agency to perform a 
detailed assessment of the anticipated costs and benefits of any rule 
that includes a Federal mandate which may result in costs to State, 
local, or Tribal governments, or the private sector, of $100 million or 
more in any one year (adjusted annually for inflation). 2 U.S.C. 
1532(a) and (b). Section 204 of that title requires each agency that 
proposed a rule containing a significant Federal intergovernmental 
mandate to develop an effective process for obtaining meaningful and 
timely input from elected officers of State, local, and Tribal 
governments. 2 U.S.C. 1534. This IFR amends the TIA regulations to 
provide the guidance and procedures to awarding and administering Other 
Transaction agreements. The IFR does not result in the expenditure by 
State, local, and Tribal governments, in aggregate, or by the private 
sector of $100 million or more in any one year. Accordingly, no 
assessment or analysis is required under the Unfunded Mandates Reform 
Act of 1995.

J. Treasury and General Government Appropriations Act, 2001

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

K. Executive Order 13211

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

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of this interim final rule prior to the 
effective date set forth at the outset of this interim final rule. The 
report will state that it has been determined that this interim final 
rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this Interim 
final rule; request for comments.

List of Subjects

2 CFR Part 930

    Accounting, Administrative practice and procedure, Federal 
financial assistance, Grant programs, Reporting and recordkeeping 
requirements, Technology investments.

10 CFR Part 603

    Accounting, Administrative practice and procedure, Federal 
financial assistance, Grant programs, Reporting and recordkeeping 
requirements, Technology investments.

Signing Authority

    This document of the Department of Energy was signed on December 
16, 2024, by William J. Quigley, Deputy Associate Administrator, 
Partnership and Acquisition Services, National Nuclear Security 
Administration, pursuant to delegated authority from the Administrator, 
National Nuclear Security Administration, and Berta L. Schreiber, 
Director, Office of Acquisition Management, Department of Energy, 
pursuant to delegated authority from the Secretary of Energy. These 
documents with the original signature and date are maintained by DOE/
NNSA. For administrative purposes only, and in compliance with 
requirements of the Office of the Federal Register, the undersigned DOE 
Federal Register Liaison Officer has been authorized to sign and submit 
the document in electronic format for publication, as an official 
document of the Department of Energy. This administrative process in no 
way alters the legal effect of this document upon publication in the 
Federal Register.


    Signed in Washington, DC, on December 18, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons stated in the preamble, DOE amends 2 CFR chapter IX 
and 10 CFR chapter II as follows:

Title 2

0
1. Part 930 is added to read as follows:

PART 930--OTHER TRANSACTION AGREEMENTS

Subpart A--General
Sec.
930.100 Purpose.
930.105 Other transaction (OT) agreements.
930.110 Approval requirements.
930.115 Deviation authority.
930.120 Nonprocurement debarment and suspension.
930.125 Cost sharing.
930.130 Fee or profit.
930.135 Competition.
930.140 Disclosure of information.
Subpart B--Pre-Award Business Evaluation
930.200 Scope.
930.205 Financial management standards.
930.210 Cost principles and standards.
930.215 Audit requirements.
930.220 Real property and equipment.
930.225 Purchasing systems standards.
Subpart C--Award Terms Related to Other Administrative Matters
930.300 Payment methods.
930.305 Government approval of changes in plans.
930.310 Pre-award costs.

[[Page 195]]

930.315 Negotiating data and patent rights.
930.320 Data rights.
930.325 Rights in inventions.
930.330 Research and technology security and U.S. manufacturing and 
competitive requirements.
930.335 Record retention requirements.
930.340 Access to records.
930.345 Noncompliance and termination requirements.
Subpart D--Appropriate Use of Technology Investment Agreements
930.400 Use of Technology Investment Agreements (TIAs).
930.405 TIA awardees.
930.410 Purchase of real property and equipment by for-profit firms.
930.415 Government participation.

    Authority: 42 U.S.C. 7256(g).

Subpart A--General


Sec.  930.100  Purpose.

    This part establishes uniform policies for the award and 
administration of other transaction agreements for research, 
development, and demonstration projects awarded under the Department of 
Energy's ``Additional Authorities'' at section 646(g) of the Department 
of Energy Organization Act, Public Law 95-91, as amended (42 U.S.C. 
7256(g)).


Sec.  930.105  Other transaction (OT) agreements.

    For purposes of this part, An other transaction (OT) agreement 
means any agreement, including technology investment agreement (TIA) 
between the Department of Energy and/or the National Nuclear Security 
Administration and a non-Federal entity for the principal purpose of 
carrying out an research, development, and demonstration project for 
which the use of a Federal procurement contract, grant, or cooperative 
agreement is not feasible or appropriate. The OT agreement must comply 
with the regulations set forth in this part. Additional requirements 
for TIAs are set forth in subpart D of this part.


Sec.  930.110  Approval requirements.

    (a)(1) An officer of the Department of Energy (DOE) who has been 
appointed by the President with the advice and consent of the Senate 
and who has been delegated the authority from the Secretary must 
approve the use of other transaction (OT) authority and may perform 
other functions of the Secretary as set forth under 42 U.S.C. 7256(g). 
This delegated authority may not be redelegated.
    (2) In addition, the cognizant Senior Procurement Executive (SPE), 
as defined by 41 U.S.C. 1702(c), (or designee) must concur on the award 
of any OT agreement.
    (3) The Agreements Officer (AO) is the cognizant warranted DOE or 
National Nuclear Security Administration official authorized to execute 
and administer OT agreements.
    (b) Deviation from the requirements in paragraph (a) of this 
section is not permitted.


Sec.  930.115  Deviation authority.

    (a) Deviation. A deviation from this part is defined as the 
issuance or use of a policy, procedure, solicitation provision, 
article, method, or practice of conducting actions of any kind at any 
stage of the award process or administration period that is 
inconsistent with this part. Deviations may affect one or more than one 
other transaction (OT) agreements.
    (b) Request for deviation. Requests for deviation(s) shall be 
submitted by the Agreements Officer, meaning the cognizant warranted 
Department of Energy or National Nuclear Security Administration 
official authorized to execute and administer OT agreements, to the 
cognizant Senior Procurement Executive, as defined by 41 U.S.C. 
1702(c), for approval. Requests shall cite the specific section from 
which it is desired to deviate, shall set forth the nature of the 
proposed deviation(s), and shall give the reasons for the action 
requested.


Sec.  930.120  Nonprocurement debarment and suspension.

    The Nonprocurement debarment and suspension requirements in 2 CFR 
part 180, as adopted and supplemented by 2 CFR part 901, are applicable 
to all other transaction agreements.


Sec.  930.125  Cost sharing.

    (a) Cost share is required as follows:
    (1) In accordance with 42 U.S.C. 7256(g)(1), to the maximum extent 
practicable, the awardee must provide at least half of the costs of the 
project;
    (2) In accordance with cost share requirements in section 988 of 
Energy Policy Act of 2005 (EPAct 2005), Public Law 109-58, as amended 
(42 U.S.C. 16352), for funded research, development, demonstration, or 
commercial application activities; and
    (3) In accordance with any other applicable statutory cost share 
requirements.
    (b) All awardee cost share or contributions, including cash and 
third-party in-kind contributions, must meet all of the following 
criteria:
    (1) Are verifiable from the awardee's records;
    (2) Are not included as contributions for any other Federal award;
    (3) Are necessary and reasonable for accomplishment of the award or 
project objectives;
    (4) Are allowable under the appropriate cost principles;
    (5) Are not paid or provided by the Federal Government under 
another Federal award (Federal funds or property), except where the 
Federal statute authorizing a program specifically provides that 
Federal funds or property made available for such program can be 
applied to cost sharing requirements of other Federal programs or 
awards;
    (6) Are not revenues or royalties from the prospective operation of 
an activity beyond the time considered in the award;
    (7) Are not proceeds from the prospective sale of an asset of an 
activity;
    (8) Are valued:
    (i) In accordance with the appropriate cost principles;
    (ii) Using the usual accounting policies of the awardee; and
    (iii) Not to exceed the fair market value (of donated property, 
equipment, or other capital assets) or the fair rental charge (of 
leased land, space, or equipment);
    (9) Are provided for in the budget approved by Department of Energy 
(DOE); and
    (10) Conform to other provisions of this part, as applicable.
    (c) DOE may reduce or eliminate the cost share requirement imposed 
by 42 U.S.C. 7256(g)(1) where the Agreements Officer (AO), meaning the 
cognizant warranted DOE or National Nuclear Security Administration 
official authorized to execute and administer other transaction 
agreements, determines the cost sharing is impracticable in a given 
case, unless there is a statutory requirement for cost sharing that 
applies to the particular award. When section 988 of EPAct 2005 applies 
to an award, the AO must obtain the required approval of the 
elimination or reduction of the required cost share in accordance with 
the section 988 of EPAct 2005.


Sec.  930.130  Fee or profit.

    The Agreements Officer, meaning the cognizant warranted Department 
of Energy or National Nuclear Security Administration official 
authorized to execute and administer other transaction (OT) agreements, 
may not issue an OT agreement if any awardee, subawardees or 
participant is to receive fee or profit for the research, development, 
and demonstration (RD&D) efforts. This requirement extends to all 
awardees and performers

[[Page 196]]

funded under the project, including any subawards for substantive 
program performance, but it does not preclude participants' or 
subawardees' payment of reasonable fee or profit when making purchases 
from suppliers of goods (e.g., supplies and equipment) or services 
needed to carry out the RD&D.


Sec.  930.135  Competition.

    (a) Department of Energy (DOE) awards other transaction (OT) 
agreements using non-procurement, non-Federal financial assistance 
competitive processes in a merit-based selection process:
    (1) In every case where required by statute; and
    (2) To the maximum extent feasible, in all other cases. If it is 
not feasible to use competitive process, the reason for not using a 
competitive process must be documented by the Agreements Officer (AO), 
meaning the cognizant warranted DOE or National Nuclear Security 
Administration official authorized to execute and administer OT 
agreements.
    (b) The AO must document any restrictions on awardee eligibility.


Sec.  930.140  Disclosure of information.

    (a) For all other transaction (OT) agreements, trade secrets and 
commercial or financial information that would be protected from 
disclosure requirements of the Freedom of Information Act (FOIA) 
(codified at 5 U.S.C. 552) if obtained from a person other than a 
Federal agency:
    (1) For a period of five years after the date on which the 
information is developed; or
    (2) For up to thirty years after the date on which the information 
is developed, if the Secretary or delegee of the Secretary determines 
that the nature of the technology under the transaction, including 
nuclear technology, could reasonably require an extended period of 
protection from disclosure to reach commercialization.
    (b) As provided in 42 U.S.C. 7256(g)(1) incorporating certain 
provisions of 10 U.S.C. 4021, disclosure is not required, and may not 
be compelled, under FOIA during that period if:
    (1) A proposer submits the information in a competitive or 
noncompetitive process that could result in the award of an OT 
agreement; and
    (2) The type of information is among the following types that are 
exempt:
    (i) Proposals, proposal abstracts, and supporting documents; and
    (ii) Business plans and technical information submitted on a 
confidential basis.
    (c) If proposers desire to protect business plans and technical 
information for five years from FOIA disclosure requirements, they must 
mark them with a legend identifying them as documents submitted on a 
confidential basis. After the five-year period, information may be 
protected for longer periods if it meets any of the criteria in 5 
U.S.C. 552(b) (as implemented by the DOE in 10 CFR part 1004) for 
exemption from FOIA disclosure requirements.

Subpart B--Pre-Award Business Evaluation


Sec.  930.200  Scope.

    This subpart addresses administrative matters that do not impose 
organization-wide requirements on an awardee's business (financial 
management, property management, or purchasing) systems. An 
organization does not have to redesign its business systems to 
accommodate variations in these requirements. Agreements may differ in 
the requirements that they specify based on the awardee and the 
specific circumstances of the research, development, and demonstration 
project.


Sec.  930.205  Financial management standards.

    (a) Any awardees that currently perform under other expenditure-
based Federal procurement contracts or assistance awards are subject to 
the same standards for financial management systems that apply to those 
other Federal awards.
    (b) Any awardees that do not currently perform under expenditure-
based Federal procurement contracts or assistance awards should be 
allowed to use their existing financial management system as long as 
the system, at a minimum, effectively controls all project funds, 
including Federal funds and any required cost share. The system must 
have complete, accurate, and current records that document the sources 
of funds and the purposes for which they are disbursed. Awardees also 
must have procedures for ensuring that project funds are used only for 
purposes permitted by the agreement.


Sec.  930.210  Cost principles and standards.

    (a) For-profit awardees. The cost principles in 48 CFR part 31 will 
generally apply to for-profit awardees.
    (b) Other than For-profit awardees. The cost principles in 2 CFR 
part 200 will generally apply to states, local governments, Indian 
Tribes, institutes of higher education and other nonprofit entities.
    (c) Cost standards. The Agreements Officer, meaning the cognizant 
warranted Department of Energy (DOE) or National Nuclear Security 
Administration official authorized to execute and administer other 
transaction agreements, may establish alternative standards in the 
agreement as long as that alternative provides, as a minimum, that:
    (1) Federal funds and funds counted as awardees' cost sharing will 
be used only for costs that a reasonable and prudent person would incur 
in carrying out the research, development, and demonstration (RD&D) 
project contemplated by the agreement.
    (2) Costs must be allocated to DOE and other projects in accordance 
with the relative benefits the projects receive.
    (3) Costs allocated to DOE projects must be given consistent 
treatment with costs allocated to the participants' other RD&D 
activities (e.g., activities supported by the participants themselves 
or by non-Federal sponsors).
    (4) The standards must also state that the Federal funds and funds 
counted as participants' cost sharing will be used only for costs that 
are consistent with the purposes stated in the governing Congressional 
authorizations and appropriations.


Sec.  930.215  Audit requirements.

    (a) For-profit awardees. If an expenditure-based other transaction 
(OT) agreement provides for audits of a for-profit participant, the 
Agreements Officer, meaning the cognizant warranted Department of 
Energy or National Nuclear Security Administration official authorized 
to execute and administer OT agreements, also must specify:
    (1) Whether the Defense Contract Auditing Agency or an Independent 
Public Accountant will perform the required audits.
    (2) What the audits are to cover.
    (3) Who will pay for the audits.
    (4) The auditing standards that the auditor will use.
    (5) The available remedies for noncompliance.
    (6) Where the auditor is to send audit reports.
    (7) The retention period for the auditor's working papers.
    (8) Who will have access to the auditor's working papers.
    (b) Other than For-profit awardees. Expenditure-based OT agreements 
are subject to the Single Audit Act (31 U.S.C. 7501-7507). State, local 
government, Indian Tribes, institutes of higher education, and 
nonprofit participants are subject to the requirements under that Act. 
Additional

[[Page 197]]

information may be found at 2 CFR part 200, subpart F.


Sec.  930.220  Real property and equipment.

    (a) The participant must include the cost of the real property or 
equipment as part of the proposed cost of the project. The Agreements 
Officer (AO), meaning the cognizant warranted Department of Energy 
(DOE) or National Nuclear Security Administration official authorized 
to execute and administer other transaction (OT) agreements, must 
approve the use of project funds (Federal or cost share) to purchase 
real property or equipment. The AO should specify the use, management, 
vesting of title, and disposition requirements in the award.
    (b) The AO may include an alternative property provision where DOE 
is authorized to grant title to property or equipment acquired under an 
OT agreement when determined such a grant is appropriate.


Sec.  930.225  Purchasing systems standards.

    (a) Any awardees that currently perform under other expenditure-
based Federal procurement contracts or assistance awards are subject to 
the same standards for purchasing systems that apply to those other 
Federal awards.
    (b) Any awardees that do not currently perform under expenditure-
based Federal procurement contracts or assistance awards should be 
allowed to use its existing purchasing system as long as the system, at 
a minimum, is able to flow down the applicable requirements in Federal 
statutes, Executive orders, or Governmentwide regulations.

Subpart C--Award Terms Related to Other Administrative Matters


Sec.  930.300  Payment methods.

    Available payment methods include:
    (a) Reimbursement. Under this method, participants request 
reimbursement for costs incurred during a particular time period. The 
Department of Energy (DOE) reimburses the participant by electronic 
funds transfer after approval of the request by the Agreements Officer, 
meaning the cognizant warranted DOE or National Nuclear Security 
Administration official authorized to execute and administer other 
transaction agreements, or designee. This payment method is used for 
expenditure-based awards.
    (b) Advance payments. Under this method, participants request 
advance payment based upon projections of the cash needs for the 
project, or for large purchases. Predetermined payment schedules may be 
used when the timing of the participant's needs to disburse funds can 
be predicted in advance with sufficient accuracy to ensure the funds 
are used in accordance with project objectives and schedules.
    (c) Payments based on payable milestones. Under this method 
payments made according to a schedule established for the award that is 
based on accomplishment of predetermined, well-defined, observable, and 
verifiable measures of technical progress, outcomes, or other payable 
milestones. A fixed-support award must use this payment method; 
however, this does not preclude the use of an initial advance payment 
if there is no alternative to meeting immediate cash needs. Payments 
based on payable milestones is the preferred method of payment for an 
expenditure-based award if well-defined outcomes can be identified.


Sec.  930.305  Government approval of changes in plans.

    Department of Energy must approve any changes in project plans that 
may result in a need for additional Federal funding to be provided to 
the other transaction agreement.


Sec.  930.310  Pre-award costs.

    Pre-award costs may be reimbursed only with the specific approval 
of the Agreements Officer (AO), meaning the cognizant warranted 
Department of Energy (DOE) or National Nuclear Security Administration 
official authorized to execute and administer other transaction 
agreements. All pre-award costs are incurred at the applicant's and/or 
awardee's risk. DOE is not obligated to reimburse the costs if, for any 
reason, the applicant does not receive an award, the award is less than 
anticipated and inadequate to cover the costs, or the AO did not 
provide prior approval for the reimbursement of the pre-award costs.


Sec.  930.315  Negotiating data and patent rights.

    The Agreements Officer, meaning the cognizant warranted Department 
of Energy (DOE) or National Nuclear Security Administration official 
authorized to execute and administer other transaction agreements, must 
confer with program officials and assigned intellectual property 
counsel to develop an overall strategy for intellectual property taking 
into account inventions and data that may result from the project and 
future needs the Government may have for rights in them. The strategy 
should address program mission requirements and any special 
circumstances that would support modification of standard intellectual 
property provisions, and should include considerations such as the 
extent of the awardee's contribution to the development of the 
technology; expected Government or commercial use of the technology; 
the need to provide equitable treatment among consortium or team 
members; and the need for DOE to engage non-traditional Government 
contractors with unique capabilities.


Sec.  930.320  Data rights.

    (a) For provisions regarding data rights for any awardee entity 
type, the data rights requirements at 2 CFR 910.362(d), Rights in data-
general rule, normally apply when the Government is to be provided with 
unlimited rights in data and should be used as a starting point for 
such other transaction (OT) agreements. Here, the ``Rights in Data--
General'' provision in appendix A to subpart D of 10 CFR part 910 
typically applies. However, if the awardee is to receive special data 
protection, the data requirements at 2 CFR 910.362(e), Rights in data--
programs covered under special protected data statutes normally apply 
and should be used as a starting point for such OT agreements. Here, 
the ``Rights in Data--Programs Covered Under Special Protected Data 
Statutes'' provision in appendix A to subpart D of 10 CFR part 910 
typically applies. Consistent with 42 U.S.C. 7256(g)(5), data 
protection can be provided typically for a period of up to 5 years but 
may be extended up to a total of 30 years in particular circumstances.
    (b) However, while maintaining compliance with 42 U.S.C. 7256(g), 
the Agreements Officer, meaning the cognizant warranted Department of 
Energy (DOE) or National Nuclear Security Administration official 
authorized to execute and administer OT agreements, may negotiate data 
rights requirements that vary from those listed above. Use of or 
modifications to the standard rights in data provisions must be 
approved by cognizant DOE intellectual property counsel.


Sec.  930.325  Rights in inventions.

    (a) When negotiating rights in inventions, the Agreements Officer 
(AO), meaning the cognizant warranted Department of Energy (DOE) or 
National Nuclear Security Administration official authorized to execute 
and administer other transaction (OT) agreements, should negotiate 
terms that represent an appropriate balance between the Government's 
interests and the awardee's interests. Bayh-Dole (35 U.S.C. 200-212) 
patent rights provisions

[[Page 198]]

implemented via 37 CFR 401.14 as modified by the DOE (see e.g., U.S. 
Competitiveness provision and Department of Energy Determination of 
Exceptional Circumstances Under the Bayh-Dole Act to Further Promote 
Domestic Manufacture of DOE Science and Energy Technologies) should be 
used as a starting point for all awardee entity types. However, the AO 
may negotiate rights that vary from those in modified 37 CFR 401.14. 
For example, Bayh-Dole March-in-Rights found in modified 37 CFR 401.14 
and concerning actions that the Government may take to obtain the right 
to use subject inventions if the awardee fails to take effective steps 
to achieve practical application of the subject inventions within a 
reasonable time, may be modified or removed entirely. Use of or 
modifications to the standard rights provisions must be approved by 
cognizant DOE intellectual property counsel.
    (b) For subawards, the OT should typically indicate that sub-
awardees will get title to inventions they make but alternative terms 
could be included such as those specifying that sub-awardees' invention 
rights are to be negotiated between awardee and sub-awardee or some 
other disposition of invention rights.


Sec.  930.330  Research and technology security and U.S. manufacturing 
and competitiveness requirements.

    (a) Foreign access to technology. Consistent with the objective of 
enhancing national security and United States competitiveness by 
increasing the public's reliance on United States commercial 
technology, the Agreements Officer, meaning the cognizant warranted 
Department of Energy (DOE) or National Nuclear Security Administration 
official authorized to execute and administer other transaction (OT) 
agreements, must include provisions in an OT agreement that addresses 
foreign access to technology developed under the OT agreement. 
Provisions must be included in an OT that provide, at a minimum, that 
any transfer of the technology must be consistent with the U.S. export 
control laws, regulations and the Department of Commerce Export 
Regulation at Chapter VII, Subchapter C, Title 15 of the CFR (15 CFR 
parts 730-774), as applicable.
    (b) DOE research and technology security policies. All DOE research 
and technology security policies apply to OTs unless the activities 
being funded are outside the scope of the policies or otherwise 
exempted from the policies.
    (c) U.S. manufacturing and competitiveness. Notice should be 
included in the OT indicating that products embodying any invention or 
produced through the use of any invention are subject to the U.S. 
Competitiveness terms outlined in modified 37 CFR 401.14. These terms 
may not be modified or waived without approval from cognizant DOE 
intellectual property counsel.


Sec.  930.335  Record retention requirements.

    (a) Awardees must keep records related to the agreement for a 
period of three years after submission of the final financial status 
report for an expenditure-based award or final program performance 
report for a fixed-support award, with the following exceptions:
    (1) The awardees must keep records longer than three years after 
submission of the final financial status report if the records relate 
to an audit, claim, or dispute that begins but does not reach its 
conclusion within the 3-year period. In that case, the awardees must 
keep the records until the matter is resolved and final action taken.
    (2) Records for any real property or equipment acquired with 
project funds under the agreement must be kept for three years after 
final disposition.
    (b) [Reserved]


Sec.  930.340  Access to records.

    (a) The Department of Energy (DOE), through the Agreements Officer 
(AO), meaning the cognizant warranted DOE or National Nuclear Security 
Administration official authorized to execute and administer other 
transaction agreements, has an unfettered right of timely access to any 
documents, papers, or other records of the awardee which are pertinent 
to the Federal award, in order to inspect and make copies, audits, 
examinations, excerpts, and/or transcripts. The right also includes 
timely and reasonable access to the awardee's personnel for the purpose 
of interview and discussion related to such documents. The exercise of 
this authority is at the discretion of the AO.
    (b) Inspectors General and the Comptroller General of the United 
States may have independent legal authority to access to records or 
personnel related to the Federal award. Consistent with the independent 
legal authority, recipients should follow the laws and regulations 
applicable to requests for access to records or personnel from 
Inspectors General and the Comptroller General of the United States.


Sec.  930.345  Noncompliance and termination requirements.

    (a) Noncompliance. If an awardee materially fails to comply with 
the articles or terms and conditions of an agreement, whether stated in 
a Federal statute, regulation, assurance, application, plan, or the 
notice of award, the Agreements Officer (AO), meaning the cognizant 
warranted Department of Energy (DOE) or National Nuclear Security 
Administration official authorized to execute and administer other 
transaction (OT) agreements, may take one or more of the following 
actions, as appropriate:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the awardee or more severe enforcement action by the AO.
    (2) Disallow or deny both the use of funds and any applicable cost 
share for all or part of the cost of the activity or action not in 
compliance.
    (3) Wholly or partly suspend or terminate the current award.
    (4) Withhold further awards for the project or program.
    (5) Apply other remedies that may be legally available.
    (b) Termination. The OT agreement must include an article that 
indicates that the Government may terminate the agreement in whole or 
in part if the awardee materially fails to comply with the articles or 
terms and conditions of an agreement, whether stated in a Federal 
statute, regulation, assurance, application, plan, or the notice of 
award fails to comply with the articles and requirements of the award. 
An agreement may include an article providing for the termination of 
the agreement, in whole or in part, by mutual agreement or as 
negotiated by the parties. In the case of proposed partial termination 
of the agreement, if the remaining portion of the award will not 
accomplish the purposes for which the agreement was made, the award may 
be terminated in its entirety.
    (1) Unless otherwise negotiated, for terminations of an 
expenditure-based award, DOE's maximum liability is the lesser of:
    (i) DOE's share of allowable costs incurred up to the date of 
termination, or
    (ii) The amount of DOE funds obligated to the award.
    (2) Unless otherwise negotiated, for terminations of a fixed-
support based award, DOE shall pay the awardee for the last fully 
completed milestone.
    (3) Notwithstanding paragraphs (b)(1) and (2) of this section, if 
the awardee initiates termination and the award includes milestone 
payments, the Government has no obligation to pay the

[[Page 199]]

awardee beyond the last completed and paid milestone.
    (c) Right to appeal. (1) The awardee has the right to appeal to the 
cognizant Senior Procurement Executive (SPE), as defined by 41 U.S.C. 
1702(c), to review only the following actions:
    (i) A DOE determination that the awardee has failed to comply with 
the applicable requirements of the award;
    (ii) Termination of an award, in whole or in part, by DOE;
    (iii) The application by DOE of an indirect cost rate; and
    (iv) DOE disallowance of costs.
    (2) In reviewing appeals authorized under paragraph (c)(1) of this 
section, the SPE is bound by the applicable law, statutes, and rules, 
including the requirements of this part, and by the articles or terms 
and conditions of the award.
    (3) The decision of the SPE shall be the final decision of DOE.

Subpart D--Appropriate Use of Technology Investment Agreements


Sec.  930.400  Use of Technology Investment Agreements (TIAs).

    For purposes of this part, a Technology Investment Agreements (TIA) 
is a special type of other transaction (OT) agreement that is an 
assistance instrument used to increase involvement of a for-profit 
entity or segment of a for-profit entity (e.g., a division or other 
business unit) that does a substantial portion of its business in the 
commercial marketplace in Department of Energy's (DOE) research, 
development, and demonstration (RD&D) programs. A TIA requires 
substantial Federal involvement in the technical or management aspects 
of the project. The goal for using a TIA is to broaden the technology 
base available to meet DOE mission requirements and foster within the 
technology base new relationships and practices to advance the national 
economic and energy security of the United States, to promote 
scientific and technological innovation in support of that mission, and 
to ensure the environmental cleanup of the national nuclear weapons 
complex. A TIA therefore is designed to reduce barriers to 
participation in RD&D programs by for-profit entities that deal 
primarily in the commercial marketplace. A TIA allows Agreements 
Officers (AO), meaning the cognizant warranted DOE or National Nuclear 
Security Administration official authorized to execute and administer 
OT agreements, to tailor Government requirements and lower or remove 
barriers if it can be done with proper stewardship of Federal funds. A 
TIA may also promote new relationships among performers in the 
technology base. Collaborations among for-profit entities that deal 
primarily in the commercial marketplace, firms that regularly perform 
on the DOE RD&D programs and nonprofit organizations can enhance 
overall quality and productivity.


Sec.  930.405  TIA awardees.

    (a) A Technology Investment Agreements (TIA) may be awarded to a 
single entity or multiple entities (e.g., a teaming arrangement) in 
prime award-subaward relationships.
    (b) A TIA requires one or more for-profit entities, not acting in 
their capacity as the contractor operating a Federally Funded Research 
and Development Center (FFRDC), to be involved either in the:
    (1) Performance of the research, development, and demonstration 
(RD&D) project; or
    (2) The commercial application of the results of the RD&D project.
    (c)(1) In those cases where there is only a non-profit awardee or a 
consortium of non-profit entities or non-profit entities and FFRDC 
contractors (as sub-awardees), if and as authorized, the awardees must 
have at least a tentative agreement with a specific for-profit entity 
or entities that plan on being involved in the commercial application 
of the results.
    (2) In consultation with legal counsel, the Agreements Officer, 
meaning the cognizant warranted Department of Energy or National 
Nuclear Security Administration official authorized to execute and 
administer OT agreements, must review the agreement between the parties 
to ensure that the for-profit entity is committed to being involved in 
the commercial application of the results.


Sec.  930.410  Purchase of real property and equipment by for-profit 
firms.

    Federal funds provided under another transaction (OT) agreement to 
for-profit entities must not be used to purchase real property or 
equipment. If the OT agreement requires the purchase of real property 
or equipment, the for-profit entity must use its own funds that are 
separate from the research, development, and demonstration project. The 
Agreements Officer, meaning the cognizant warranted Department of 
Energy or National Nuclear Security Administration official authorized 
to execute and administer OT agreements, should allow the for-profit 
participant to charge to an expenditure-based award or include in the 
cost estimate for fixed-support award, only depreciation or use charges 
for the real property or equipment. Note that the for-profit must 
charge depreciation consistently with its usual accounting practices 
and policies. Many for-profits treat depreciation as an indirect cost. 
Any for-profit that usually charges depreciation indirectly for a 
particular type of property must not charge depreciation for that 
property as a direct cost to the OT agreement.


Sec.  930.415  Government participation.

    A Technology Investment Agreements is used to carry out cooperative 
relationships between the Federal Government and the awardee(s) which 
require substantial involvement of the Government in the technical and/
or management aspects of the research, development, and demonstration 
(RD&D) project.

Title 10

PART 603--[REMOVED AND RESERVED]

0
2. Under the authority of 42 U.S.C. 7101 et seq.; 31 U.S.C. 6301-6308; 
50 U.S.C. 2401 et seq., part 603 is removed and reserved.

[FR Doc. 2024-30636 Filed 1-2-25; 8:45 am]
BILLING CODE 6450-01-P`