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I. OMB EXCEPTION POLICY
involvement in the performance of the assisted project.
b. Other programs may use grants or cooperative agreements, depending on the nature of the project or the abilities of the recipients. For example:
(1) Some projects may start out as cooperative agreements in the first year and be converted to grants after recipient capacity has been established.
(2) Other projects, initially funded as grants, may have to be renewed or continued for subsequent budget periods as cooperative agreements if there is a need to revise the project, upgrade recipient capacity, or protect the Federal interest.
2. Statement of Federal involvement. Each cooperative agreement should include an explicit statement of the nature, character, and extent of anticipated Federa involvement. These statements must be developed with care to avoid unnecessarily increasing Federal liability under the assistance instrument.
1. General. Section 10(d) authorizes the Director of OMB to:
Except individual transactions or programs of any executive agency from the application of the provisions of this Act. This authority shall expire one year after receipt by the Congress of the study provided for in section 8 of this Act.
Agencies are advised that, unless otherwise indicated, OMB exceptions will run through January 1981.
2. Exceptions provided in this guidance. Section H3 of this guidance excepts nonmonetary grants.
3. Other exceptions under the Act. Agencies are required to conform with sections 4, 5, and 6 of the Act. Where severe disruption to a program or serious consequences to recipients would result, a request for exceptions should be made to OMB. OMB intends to grant additional exceptions only on the basis of agency requests that include strong justifications and an indication of the harm that will result if an exception is not granted. Section J below indicates the procedures agencies should follow in requesting exceptions.
4. Waiver of administrative standards. OMB is responsible for most of the administrative standards that apply to assistance programs. Agencies should follow these standards. The circulars that establish these standards presently provide procedures for granting of waivers. If the standards appear unsuitable to a particular situation, requests for waivers should be sent to the OMB office responsible for the circular or the responsible agency if not OMB (e.g., for GSA uniform relocation provisions). Requests for waivers to financial management circulars administered by OMB should be addressed to John Lordan, Chief, Financial Management Branch, OMB, Room 6002, NEOB, Washington, D.C. 20503.
H. ASSISTANCE TRANSACTIONS INVOLVING ONLY
1. Types of assistance included. Sections 5 and 6 apply to transactions that transfer “property, services, or anything of value," which could include consultation, technical services, information, and data. This section of the guidance applies to agencies and programs that provide such types of nonmonetary assistance apart from fund transfers.
2. Applicability of administrative standards. Section E above stated that existing administrative standards (e.g., OMB Circu. lars A-95, A-102, A-110) apply to grants and cooperative agreements involving the transfer of funds. Agencies are encouraged, however, to use these standards where appropriate, and in some cases, their use is required for nonmonetary transfers. For example, a donation of a substantial parcel of land to a local government is the type of Federal action covered by Part II of A-95, but other administrative standards may not apply.
3. OMB exception for nonmonetary assistance. OMB exempts programs and transactions providing nonmonetary assistance from the provisions of section 5 of the Act. Existing agency practices for providing nonmonetary assistance where no Federal involvement in the assisted activity is anticipated should continue. Thus a formal grant instrument is not required to provide surplus property, consultation, or data. Where substantial Federal involvement in the assisted activity is anticipated, however, a cooperative agreement is required as indicated in section 6 of the Act. Agencies engaged in the provision of nonmonetary assistance will be asked to report on these activities under section M below.
J. OMB EXCEPTION PROCEDURES
A request for an OMB exception under this Act should be addressed to Deputy Associate Director for Intergovernmental Affairs, Room 9025, NEOB, Washington, D.C. 20503. It should include:
1. A statement on whether the exception is requested for a complete program or an individual transaction.
2. An explanation of why an exception is requested, including statutory, agency policy, or other reasons.
3. A statement of what the agency will do if an exception is not granted and what the implications would be if this action were taken.
4. An indication of how the agency will handle the situation if the OMB exception expires before there are any changes to either this Act or agency statutes. permit an exception or an exemption from the regulations of this part. Requests for exception and exemption shall be submitted in accordance with the provisions of Part 661 of this subchapter. $ 660.5 Ratification of prior directives,
problems has the Act presented that can be expected to continue?
K. JOINT FUNDING UNDER GRANTS AND
Subsection 10(c) of the Act specifically provides for projects funded under the Joint Funding Simplification Act that include more than one type of assistance relationship. Thus a project with some components funded by grants and others by cooperative agreements is entirely permissible. Agencies should view this Act as providing the opportunity and authority to participate in joint funded projects in any number of funding relationships to serve the best interests of the participating agencies programs.
L. AGENCY RECORDS
Both Congress and OMB view this Act as a preliminary step toward long-range overhaul of Federal assistance activities. The requirement for agencies to implement sections 4, 5, and 6 in one year is, in large part, to begin the systematic gathering of data about Federal assistance relationships. Agencies should anticipate that congressional committees, the General Accounting Office, and OMB will be asking extensive questions about the effects of implementing these 'sections. While the questions may vary from agency to agency, they can reasonably be expected to deal with operating experience for a year or more after full implementation. Agencies should develop systems of records that would allow them to answer questions such as:
1. How many financial grants have been awarded in accordance with section 5 of the Act? What was the dollar volume and what classes of recipients were involved (e.g., State governments, universities, hospitals, individuals)?
2. For which programs did the agency decide to use grants exclusively? Why?
3. How many financial assistance cooperative agreements have been awarded in accordance with section 6 of the Act? What was the dollar volume and what classes of recipients were involved?
4. For which programs did the agency decide to use cooperative agreements exclusively? What are the nature and reason for the agency involvement?
5. For which programs were both grants and cooperative agreements used? What were the criteria for determining the instrument used?
6. What types of nonmonetary assistance transfers were made as grants? What types as cooperative agreements?
7. What was the agency's experience in implementing sections 4, 5, and 6? How did it contribute to improve projects, management, or intergovernmental relations? What
M. OMB REPORTING REQUIREMENTS The experience of the agencies in making decisions necessary to implement sections 4, 5, and 6 of the Act will be important to the study required by section 8. In addition, to the more general questions about the feasi. bility of a comprehensive system of guidance for assistance activities, the report to Congress must include a summary of the effects of sections 4, 5, and 6. For these reasons, agencies are to provide by March 1, 1979, à report to OMB that includes the following:
1. Distinguishing between procurement and assistance:
a. For what types of activities did the agency have troubie making the distinction between procurement and assistance? Why?
b. On what basis were the issues resolved? 2. Use of procurement contracts:
a. What activities formerly funded through grants or other assistance instruments will now be handled with procurement contracts?
b. What is the anticipated dollar volume of these procurement contracts?
c. What is expected to be the impact of this shift on the agency?
d. Who will be the principal recipients of these contracts?
e. What is expected to be the impact on the recipients?
f. What use was made of the subsection 4(2) procurement provisions? Explain any uses other than those following the two-step example in the legislative history.
3. Agency decisions on when to use grants or cooperative agreements:
a. Describe the process by which the agency decided which programs would use:
(1) Only grants.
(3) Both grants and cooperative agreements.
b. Which programs, as listed in the Catalog of Federal Domestic Assistance, will fall into each of the above three categories? For those in category 3 what is the expected mix in terms of total dollars and numbers of transactions?
c. What programs not listed in the Catalog of Federal Domestic Assistance will fall into each of the three categories? For those in category 3 what is the expected mix in terms of total dollars and numbers of transactions?
d. What is the anticipated first-year dollar volume of the programs in each of the three categories?
e. What types of Federal involvement in the assisted activity led to the identification of programs that would use only cooperative agreements?
f. What are the anticipated reactions of the recipients of programs using only cooperative agreements?
g. What are the anticipated liability, accountability, and other implications for the programs using only cooperative agreements?
h. What are the agency guidelines on the selection of instruments for programs that may use either grants or cooperative agreements?
i. What is the anticipated dollar volume of grants and cooperative agreements to be awarded under these programs?
j. How will the opportunity to use either grants or cooperative agreements improve administration of these programs?
k. What negative effects are anticipated from the requirement to make a choice of instruments?
1. What programs will use assistance instruments that formerly used contracts and what is the dollar volume of these new uses of assistance instruments? 4. Nonmonetary assistance transfers:
a. What were the types and dollar value of nonmonetary transfers made by the agency using grant instruments?
b. How do these grant instruments compare with monetary grant instruments?
c. What were the types and dollar value of nonmonetary transfer made under the OMB exception that did not use grant instruments?
d. How would the agency have treated these transfers had not OMB granted the exception?
e. What were the types and dollar value of nonmonetary transfers made through cooperative agreements?
f. What was the agency's experience with this use of cooperative agreements?
5. Overall evaluation of the Act: a. What elements of the Act are contributing to improved program performance and administration?
b. What elements of the Act are particularly troublesome? Why?
c. What proposals would the agency make for revising the Act?
orders and actions. Unless modified by any provisions of this part any directive, order or action in effect pursuant to the Act shall remain in effect:
(a) Until its expiration by its own terms; or
(b) Until its revocation or amendment by any directive or order or superseding regulation issued under the provisions of this part.
$ 660.6 Retaliatory actions.
No firm (including an individual) may take retaliatory action against any other firm (including an individual) that files or manifests an intent to file a complaint of alleged violation of, or that otherwise exercises any rights conferred by the Act, any provision of this part, or any order issued under this part. For the purposes of this paragraph, “retaliatory action" means any action contrary to the purpose or intent of the Act or the DOCA to allocate petroleum products and may include a refusal to continue to sell, any reduction in quality, any reduction in quantity of services or products customarily available for sale or lease, any slowdown in customary delivery time or schedule, any violation of privacy, any form of harassment, or any inducement of others to retaliate.
terms other than those associated with seasonal credit programs are included as a part of the May 15, 1973 price charged to a class of purchasers under Part 212 of this chapter. Nothing in this paragraph shall be construed to require suppliers to sell to purchasers who do not arrange proper credit or payments for petroleum products, as customarily associated with that class of purchaser during the base period (for seasonal credit), or on May 15, 1973 (for other credit terms). However, no supplier may require or impose more stringent credit terms or payment schedules on purchasers than those in effect for that class of purchaser during the base period (for seasonal credit), or on May 15, 1973 (for other credit terms).
(b) No supplier shall engage in any form of discrimination among purchasers of any petroleum product. For purposes of this paragraph, “discrimination” means extending any preference or sales treatment which has the effect of frustrating or impairing the objectives, purposes and intent of this part or the Act, and includes, but is not limited to, refusal by a retail marketer of motor gasoline or diesel fuel to furnish or sell any petroleum product due to the absence of a prior selling relationship with the purchaser, or establishment of new volume purchase arrangements where customers of retailers agree in advance to purchase in excess of normal amounts of motor gasoline or diesel fuel and thereby receive preferential treatment.
(c) Any practice which constitutes a means to impose terms or conditions not customarily imposed upon the sale of a petroleum product is in violation of these regulations.
8 660.7 Normal business practices.
(a) Suppliers will deal with purchasers of a petroleum product according to normal business practices in effect during the base period specified in this part for that petroleum product, and no supplier may modify any normal business practice so as to result in the circumvention of any provision of this part. “Summer fill" programs and other “dating" or seasonal credit programs are among the normal business practices which must be maintained by a supplier under this paragraph, if that supplier had such programs in effect during the base period. Credit
8 660.8 Supplier/purchaser accommoda
tions. (a) Any supplier may arrange to supply any purchaser which is entitled to
receive an allocation from it through another supplier or suppliers in accordance with normal business practices. The purchaser shall, however, be entitled to receive the same amount and quality of the petroleum product from the substituted supplier or suppliers that it would receive if it