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

<RULE> DEPARTMENT OF ENERGY <CFR>2 CFR Part 930</CFR> <CFR>10 CFR Part 603</CFR> <RIN>RIN 1991-AC19</RIN> <SUBJECT>Update and Relocation of the Department of Energy Technology Investment Agreement Regulations</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Department of Energy. <HD SOURCE="HED">ACTION:</HD> Interim final rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective January 3, 2025. DOE will accept comments, data, and information regarding this IFR no later than March 4, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at <E T="03">www.regulations.gov.</E> Follow the instructions in section III of this document, <E T="03">Public Participation,</E> for submitting comments. Alternatively, interested persons may submit comments, identified by “RIN 1991-AC19—2024 Other Transaction Agreements”, by any of the following methods: <E T="03">Email: OTArulemaking@hq.doe.gov.</E> Include “RIN 1991-AC19—2024 Other Transaction Agreements” in the subject line of the message. <E T="03">Postal Mail:</E> 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. <E T="03">Docket:</E> The docket, which includes <E T="04">Federal Register</E> notices, comments, and other supporting documents/materials, is available for review at <E T="03">www.regulations.gov.</E> All documents in the docket are listed in the <E T="03">www.regulations.gov</E> 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 <E T="03">www.regulations.gov</E> 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 <E T="03">www.regulations.gov.</E> Please put “RIN 1991-AC19 2024 Other Transaction Agreements” in the subject line when sending an email. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Richard Bonnell, U.S. Department of Energy, Office of Acquisition Management by email at <E T="03">richard.bonnell@hq.doe.gov</E> or (301) 922-7101. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background</FP> <FP SOURCE="FP-2">II. Discussion</FP> <FP SOURCE="FP-2">III. Section by Section Analysis</FP> <FP SOURCE="FP-2">IV. Public Participation</FP> <FP SOURCE="FP-2">V. Procedural Requirements</FP> <FP SOURCE="FP1-2">A. Executive Orders 12866, 13563 and 14094</FP> <FP SOURCE="FP1-2">B. Administrative Procedure Act</FP> <FP SOURCE="FP1-2">C. Regulatory Flexibility Act</FP> <FP SOURCE="FP1-2">D. Paperwork Reduction Act</FP> <FP SOURCE="FP1-2">E. National Environmental Policy Act of 1969 (NEPA)</FP> <FP SOURCE="FP1-2">F. Executive Order 13132</FP> <FP SOURCE="FP1-2">G. Executive Order 12988</FP> <FP SOURCE="FP1-2">H. Executive Order 13175</FP> <FP SOURCE="FP1-2">I. Unfunded Mandates Reform Act of 1995</FP> <FP SOURCE="FP1-2">J. Treasury and General Government Appropriations Act, 2001</FP> <FP SOURCE="FP1-2">K. Executive Order 13211</FP> <FP SOURCE="FP1-2">L. Congressional Notification</FP> <FP SOURCE="FP-2">VI. Approval by the Office of the Secretary of Energy</FP> </EXTRACT> <HD SOURCE="HD1">I. Background</HD> 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 <E T="03">et seq.</E> ). 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. <SU>1</SU> <FTREF/> 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. <FTNT> <SU>1</SU>  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). </FTNT> 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 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. <HD SOURCE="HD1">II. Discussion</HD> 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 re ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 80k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━