Policy on Audits of RUS Awardees

AGENCY:

Rural Utilities Service, USDA.

SUPPLEMENTARY INFORMATION:

I. Background

Rural Development is a mission area within the USDA comprising RUS, Rural Housing Service, and Rural Business-Cooperative Service. Rural Development's mission is to increase economic opportunity and improve the quality of life for all rural Americans. The mission is met by providing loans, loan guarantees, grants, and technical assistance through numerous programs aimed at creating and improving housing, business, and infrastructure throughout rural America.

The RUS loan, loan guarantee, and grant programs act as a catalyst for economic and community development. By financing improvements to rural electric, water and waste, and telecommunications and broadband infrastructure, RUS also plays a significant role in improving other measures of quality of life in rural America, including public health and safety, environmental protection and cultural and historic preservation.

An update to this policy occurred on February 2, 2023 (88 FR 7557), to incorporate changes made to 7 CFR parts 1709, 1719, 1734, 1738, 1739 and 1770. These changes addressed the streamlined procedures, and clarified when entities must follow RUS' own audit regulations or 2 CFR part 200.

Since publication, RUS has continued to evaluate and obtain input from stakeholders. There appears to still be areas that are prone to misinterpretation and confusion. RUS has determined that the proposed changes will provide more clarity to awardees and auditors and conform with Generally Accepted Government Auditing Standards (GAGAS) and American Institute of Certified Public Accountants (AICPA) guidelines.

To implement these changes, RUS will publish this action as a final rule. The Administrative Procedures Act exempts from prior notice rules any action “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts” (5 U.S.C. 553(a)(2)). As the proposed changes came from the previous comment period, it would be unnecessary to solicit more comments from the public.

II. Summary of Changes to the Final Rule

The changes made to 7 CFR part 1773 include:

1. Section 1773.1(d), “an audit” will be updated to “audited financial statements.” This change is recommended because “audited financial statements” is a more accurate term for the information to be provided and to conform with American Institute of Certified Public Accountants (AICPA) suggested changes.

2. Section 1773.2, Definitions, will be updated as follows:

a. Audit means an examination of financial statements by an independent auditor or audit firm for the purpose of expressing an opinion on the fairness with which the financial statements present the financial position, results of operations, and changes in cash flows in accordance with U.S. generally accepted accounting principles (GAAP) and for determining whether the auditee has complied with provisions of laws, regulations, contracts, or grant agreements that could have a material effect on the financial statements.

This change is recommended because adding “or audit firm” after “an independent auditor” is more accurate and a clear use of an audit firm was implied or inferred with the prior language. Also changing “applicable laws, regulations, and provisions of” to “provisions of laws, regulations,” conforms with current language in GAGAS and AICPA guidelines.

b. Peer review means an external review of one or more aspects of the accounting and auditing practice, not subject to Public Company Accounting Oversight Board permanent inspection, performed once every three years by a CPA firm that is not affiliated with the auditor.

This change is recommended because replacing “approved study, appraisal, or” with “external” conforms with changes suggested by AICPA.

c. Regulatory asset means an asset resulting from an action of a regulator as defined by Financial Accounting Standards Board (FASB) and Governmental Accounting Standards Board (GASB).

This change is recommended because adding GASB to the definition acknowledges GASB is the regulatory body for accounting by Government entities.

d. Regulatory liability means a liability imposed on a regulated enterprise when there is an enforceable present obligation to deduct an amount in determining the regulated rate to be charged to customers in future periods, as defined by FASB and GASB.

This change is recommended because adding “as defined by FASB and GASB” to the definition, acknowledges both as the regulatory bodies for accounting for Government and non-government entities.

3. Section 1773.3(c), was updated to include “not subject to 2 CFR part 200, subpart F” in the first sentence for clarification. This change is recommended because adding “not subject to 2 CFR part 200, subpart F” provides clarity regarding entities subject to this regulation and conforms with AICPA suggested changes.

4. Section 1773.3(d)(1), update the citation to “2 CFR 200.503 (b) and (c).” This change is recommended to better align with the current language in 2 CFR 200.503.

5. Section 1773.4(c)(1), “as identified” will be updated to “based on criteria described”. This change is recommended because replacing “as identified” with “based on criteria described” is more accurate language and conforms with changes suggested by AICPA.

6. Section 1773.9(b) will be updated to, “If specific information comes to the auditor's attention that provides evidence concerning the existence of possible violations of provisions of laws, regulations, contracts, or grant agreements that could have a material indirect effect on the financial statements, the auditor should apply audit procedures specifically directed to obtain sufficient, appropriate audit evidence regarding those possible violations of provisions of laws, regulations, contracts, or grant agreements.” This change is recommended because replacing “ascertaining whether a violation” with “obtain sufficient appropriate audit evidence regarding those possible violations” is more accurate language for the goal of the audit procedure and conforms with changes suggested by AICPA.

7. Section 1773.9(c) will be updated to, “Pursuant to the terms of its audit engagement letter with the auditee, the auditor must, as soon as practical, report through the methods indicated below, all instances of fraud, illegal acts, and all indications or instances of noncompliance with laws, whether material or not, to:

a. The president of the auditee's governance board via the auditor's preferred method;

b. RUS via email;

c. OC-ECD via email; and

d. OIG, as follows:

i. For all audits performed in accordance with § 1773.3(d) (audits conducted in accordance with 2 CFR part 200), report to the USDA-OIG-Audit, National Single Audit Coordinator for USDA, 1400 Independence Ave. SW, Ste. 419, Washington, DC 20250, email: OIG-USDAsingleaudit@oig.usda.gov, or online at: http://usdaoig.oversight.gov.

ii. For all other audits conducted in accordance with § 1773.3 report to the USDA Office of Inspector General online at: usdaoig.oversight.gov.

This change is recommended because replacing “immediately report, in writing via email” with “as soon as practical, through the methods indicated below,” provides more realistic timing for notification, and enables the auditor to determine the method of notification to the auditee's governance board, specifies the notification method for RUS and OC-ECD, and conforms with changes suggested by AICPA. The methods of notification below will be added for clarity.

8. Section 1773.21(d) will be updated to, “The auditee must include a complete reporting package as defined in § 1773.2.” This change is to clarify requirements, remove redundant language, and conform with changes suggested by AICPA.

9. Section 1773.32(a) “that the tests” will be updated to “state whether the tests” and remove “digital” in reference to the signature options. This change is recommended because replacing “that” with “state whether” conforms with changes suggested by AICPA.

10. Section 1773.32(a) paragraphs (1) through (4) will be updated to more accurate language and to conform to GAGAS. The additional language also presents a more accurate description. Changes include:

1. Significant deficiencies and material weaknesses in internal control;

2. Identified or suspected instances of noncompliance with provisions of laws, regulations, contracts and grant agreements that have a material effect on the financial statements or other financial data significant to the audit objectives and any other instances that warrant the attention of those charged with governance;

3. Identified or suspected instances of fraud that have a material effect, either quantitatively or qualitatively, to the financial statements or other financial data significant to the audit objectives; and

4. Identified or suspected instances of abuse that have a material effect, either quantitatively or qualitatively, to the financial statements or other financial data significant to the audit objectives.

11. Section 1773.32(d) will be deleted and the language will be included in § 1773.34. This change is recommended because the language more accurately fits with § 1773.34 as this is part of the schedule of findings and recommendations and will be added to the end of that paragraph.

12. Section 1773.40, “ASC 980” will be updated to “FASB Accounting Standards Codification (ASC) 980 or GASB Statement (GASBS) 62, as appropriate.” This change is recommended because adding the specific guidance of FASB ASC 980 or GASB Statement 62 provides more specific information and criteria for reporting regulatory assets.

13. Section 1773.45 will be updated to, “The auditor's audit documentation shall support that all regulatory liabilities comply with the requirements of FASB Accounting Standards Codification (ASC) 980 or GASB Statement (GASBS) 62, as appropriate. For electric auditees only, the auditor's audit documentation shall document whether all regulatory liabilities have received RUS approval.” This change is recommended because adding the specific guidance of FASB ASC 980 or GASB Statement 62 provides more specific information and criteria for reporting regulatory liabilities.

III. Executive Orders and Acts

Executive Order 12866

This final rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs designated this final rule as not a major rule, as defined by 5 U.S.C. 804(2).

Executive Order 12372, Intergovernmental Review of Federal Programs

This final rule is excluded from the scope of E.O. 12372, Intergovernmental Consultation, which may require consultation with state and local officials. See the final rule related notice entitled, “Department Programs and Activities Excluded from Executive Order 12372” (50 FR 47034) advising that RUS loans and loan guarantees were not covered by E.O. 12372.

Executive Order 12988, Civil Justice Reform

This final rule has been reviewed under E.O. 12988, Civil Justice Reform. In accordance with this final rule: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) No retroactive effect will be given to this rule; and (3) Administrative proceedings of the National Appeals Division (7 CFR part 11) must be exhausted before bringing suit in court challenging action taken under this rule.

Regulatory Flexibility Act Certification

RUS has determined that this final rule will not have significant impact on a substantial number of small entities defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The RUS loan programs provide borrowers with loans at interest rates and terms that are more favorable than those generally available from the private sector. Borrowers, as a result of obtaining Federal financing, receive economic benefits that exceed any direct cost associated with RUS regulations and requirements.

National Environmental Policy Act

In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, this final rule has been reviewed in accordance with 7 CFR part 1970 (“Environmental Policies and Procedures”). The Agency has determined that (i) this action meets the criteria established in 7 CFR 1970.53(f); (ii) no extraordinary circumstances exist; and (iii) the action is not “connected” to other actions with potentially significant impacts, is not considered a “cumulative action” and is not precluded by 40 CFR 1506.1. Therefore, the Agency has determined that the action does not have a significant effect on the human environment, and therefore neither an Environmental Assessment nor an Environmental Impact Statement is required.

Assistance Listing Number (Formally Known as the Catalog of Federal Domestic Assistance)

The Assistance Listing Numbers assigned to the programs described by this final rule are as follows: 10.751—Rural Energy Savings Program; 10.752—Rural eConnectivity Pilot Program; 10.850—Rural Electrification Loans and Loan Guarantees; 10.851—Rural Telephone Loans and Loan Guarantees; 10.855—Distance Learning and Telemedicine Loans and Grants; 10.858—Denali Commission Grants and Loans; 10.859—Assistance to High Energy Cost Rural Communities; 10.863—Community Connect Grant Program and 10.886—Rural Broadband Access Loans and Loan Guarantees.

Information Collection and Recordkeeping Requirements

The information collection and record-keeping requirements contained in this rule are approved by OMB under OMB Control Number 0572-0095. This final rule contains no new reporting or recordkeeping burdens. The 3-year renewal for this package is pending approval by OMB.

Administrative Pay-As-You-Go-Act of 2023

The Administrative Pay-As-You-Go Act of 2023 (Act) (see Fiscal Responsibility Act of 2023, Public Law 118-5, 137 Stat. 31, div. B, title III), requires the U.S. Government Accountability Office (GAO) to assess agency compliance with the Act, which establishes requirements for administrative actions that affect direct spending, in GAO's major rule reports.

The Act does not apply to this rule because it does not increase direct spending.

Unfunded Mandates

This final rule contains no Federal mandates (under the regulatory provision of Title II of the Unfunded Mandates Reform Act of 1995) for state, local, and tribal governments or the private sector. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.

Executive Order 13132—Federalism

The policies contained in this final rule do not have any substantial direct effect on 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. Nor does this final rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with the States is not required.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

This final rule has been reviewed in accordance with the requirements of E.O. 13175, Consultation and Coordination with Indian Tribal Governments. E.O. 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments, or proposed legislation, or other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The Agency has determined that this final rule does not, to our knowledge, have Tribal implications that require formal Tribal consultation under E.O. 13175. If a Tribe request consultation, RUS will work with the Office of Tribal Relationships to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

E-Government Act Compliance

The Agency is committed to complying with the E-Government Act of 2002, Public Law 107-347, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible and to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Severability

It is USDA's intention that the provisions of this final rule shall operate independently of each other. In the event that this final rule or any portion of this final rule is ultimately declared invalid or stayed as to a particular provision, it is USDA's intent that the final rule nonetheless be severable and remain valid with respect to those provisions not affected by a declaration of invalidity or stayed. USDA concludes it would separately adopt all of the provisions contained in this final rule.

Civil Rights Impact Analysis

Rural Development, a mission area for which RUS is an agency, has reviewed this final rule in accordance with USDA Regulation 4300-4, Civil Rights Impact Analysis, to identify any major civil rights impacts the final rule might have on program participants on the basis of age, race, color, national origin, sex, disability, gender identity (including gender expression), genetic information, political beliefs, sexual orientation, marital status, familial status, parental status, veteran status, religion, reprisal and/or resulting from all or a part of an individual's income being derived from any public assistance program. After review and analysis of the final rule and available data, it has been determined that based on the analysis of the program purpose, application submission and eligibility criteria, issuance of this final rule is not likely to negatively impact very low, low and moderate-income populations, minority populations, women, Indian tribes or persons with disability, by virtue of their race, color, national origin, sex, age, disability, or marital or familial status. No major civil rights impact is likely to result from this final rule.

USDA Non-Discrimination Statement

In accordance with Federal civil rights laws and USDA civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information ( e.g., Braille, large print, audiotape, American Sign Language) should contact the responsible Mission Area, agency, or staff office or the 711 Relay Service.

To file a program discrimination complaint, a complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form, which can be obtained online at https://www.usda.gov/sites/default/files/documents/ad-3027.pdf, from any USDA office, by calling (866) 632-9992, or by writing a letter addressed to USDA. The letter must contain the complainant's name, address, telephone number, and a written description of the alleged discriminatory action in sufficient detail to inform the Assistant Secretary for Civil Rights (ASCR) about the nature and date of an alleged civil rights violation. The completed AD-3027 form or letter must be submitted to USDA by:

(1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; or

(2) Fax: (833) 256-1665 or (202) 690-7442; or

(3) Email: program.intake@usda.gov.

Accordingly, for the reasons discussed in the preamble, the Agency amends 7 CFR 1773 as follows:

1. The authority citation for part 1773 continues to read as follows:

Authority: 7 U.S.C. 901 et seq., 7 U.S.C. 1921 et seq., 7 U.S.C. 6941 et seq.

2. Amend § 1773.1 by revising paragraph (d) to read as follows:

3. Amend § 1773.2 by revising the definitions of “Audit”, “Peer review”, “Regulatory asset”, and “Regulatory liability” to read as follows:

4. Amend § 1773.3 by revising paragraphs (c) and (d)(1) to read as follows:

5. Amend § 1773.4 by revising paragraph (c)(1) to read as follows:

6. Amend § 1773.9 by revising paragraphs (b) and (c) to read as follows:

7. Amend § 1773.21 by revising paragraph (d) to read as follows:

8. Amend § 1773.32 by revising paragraph (a) and removing paragraph (d).

The revision reads as follows:

9. Revise § 1773.34 to read as follows:

10. Revise § 1773.40 to read as follows:

11. Revise § 1773.45 to read as follows:

[FR Doc. 2024-25914 Filed 11-7-24; 8:45 am]

BILLING CODE 3410-15-P