DOL Updates its Title 2 Regulations in Response to Revised Uniform Guidance

Department of Labor (DOL) ― check! Add another federal agency to the list of those that have amended their regulations implementing the Office of Management and Budget’s (OMB) uniform guidance (2 C.F.R. Part 200) in response to the 2020 revisions to the guidance. Still, eight month after the August 2020 issuance of the OMB revisions, the list of agencies that have updated their provisions in Title 2 remains short, as we continue to wait for other key agencies, such as the Department of Health and Human Services, to update their regulation accordingly.

DOL on April 27 issued a final rule making technical amendments to its regulations at 2 C.F.R. Part 2900 in response to the uniform guidance revisions. DOL emphasized that it was not making any new policy with the technical amendments, as its revised rule cross-references its agency regulations with current sections in the uniform guidance. For example, DOL’s updated regulations now refer to amended citations numbers in the uniform guidance, noting that the uniform guidance now includes all Subpart A definitions within §200.1, and provisions in Subpart C were renumbered after the addition of a new provision at §200.202.

However, DOL did add some clarifying information to its definition of “questioned costs.” The agency’s existing regulation at 2 C.F.R §2900.3 expanded the definition of “questioned costs” as stated in the uniform guidance to include agency officials within the definition. In its recent revision, the agency maintained its language, but added new provision to its definition. DOL still defines a questioned cost as “a cost that is questioned by an auditor, federal project officer, grant officer, or other authorized awarding agency representative because of an audit finding: (a) which resulted from a violation or possible violation of a statute, regulation or the terms and conditions of a federal award, including for funds used to match federal funds; (b) where the costs, at the time of the audit, are not supported by adequate documentation; or (c) where the costs incurred appear unreasonable and do not reflect the actions a prudent person would take in the circumstances. It also has now added (d), which states that “questioned costs are not an improper payment until reviewed and confirmed to be improper as defined in OMB Circular A-123 Appendix C.”

In addition to the uniform guidance’s provisions on the federal government’s rights to intangible property in §200.315(d), DOL, under updated provisions at 2 C.F.R. §2900.13, requires that intellectual property developed under a DOL discretionary federal award be in a format readily accessible and available for open licensing to the public. The agency deleted previous language stating that the intellectual property must be licensed under a Creative Commons Attribution license.

All other updates that DOL made to its provisions were relatively minor grammatical or punctuation changes.

DOL joins other agencies such as the Department of Agriculture, Environmental Protection Agency and National Space and Aeronautics Administration that have updated their Title 2 regulations. We would hope to see other agencies join this list in the near future, and will report on them when they do. Stay tuned!

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