Advisory Opinion 2020-005
Non-Federal Status of 快猫视频 and 快猫视频 Grants and Contracts
November 6, 2020
Questions Presented
- Is the 快猫视频 (快猫视频) a federal agency, a federal grantee, or a federal contractor?
- Are 快猫视频 funds federal funds and are 快猫视频 grants federal grants, the provision of federal financial assistance, or federal contracts?
- Are 快猫视频 grantees federal grantees?
Brief Answer
In general,
- 快猫视频 is not a federal agency, federal grantee, or a federal contractor.
- 快猫视频 funds are not federal funds and 快猫视频 grants are not federal grants, do not constitute the provision of federal financial assistance, and are not federal contracts.
- 快猫视频鈥檚 grants do not make its grantees federal grantees.
In some situations, specific statutes or other authorities treat 快猫视频 or 快猫视频 grants as if 快猫视频 was a federal program, but only within the scope of those specific statutes or authorities. For example, the 快猫视频 Act makes 快猫视频 subject to the Freedom of Information Act. 42 U.S.C. 搂 2996d(g). The 快猫视频 Office of Legal Affairs can address questions about any specific situations.
Analysis
Congress created 快猫视频 as a D.C. nonprofit corporation that 鈥渟hall not be considered a department, agency, or instrumentality[] of the Federal Government.鈥 . In light of this plain statutory language, the federal courts have consistently ruled that 快猫视频 is not an agency except when Congress specifically states otherwise. See, e.g., ., 186 F.3d 457 (4th 1999) (快猫视频 is not an agency under the Administrative Procedure Act). Where Congress has applied an agency requirement to 快猫视频 by statute, it has explicitly done so, such as in the provision of the 快猫视频 Act that subjects 快猫视频 to the Freedom of Information Act. 42 U.S.C. 搂 2996d(g) (快猫视频 鈥渟hall be subject to the provisions of section 552 of title 5鈥 (relating to freedom of information)). Similarly, although 快猫视频 is not a federal entity, the 快猫视频 Act authorizes the President of the United States to 鈥渄irect that appropriate support functions of the Federal Government may be made available to the Corporation in carrying out its activities.鈥 42 U.S.C 搂 2995k. That authority permits 快猫视频, unlike other nonprofit corporations, to use government rates and benefits such as the GSA purchasing schedule and use of a .gov domain.
The United States Government Accountability Office (GAO) has explained that 快猫视频 is not a federal agency and, thus not subject to the laws that generally govern federal agencies. See (August 2007) (discussing the structure of 快猫视频 and that it is not a federal agency or a U.S. government corporation). Furthermore, 快猫视频 is not within or subject to the authority of the Executive Branch, which cannot direct 快猫视频 operations. For example, 鈥淐ongress authorized 快猫视频, unlike federal agencies in general, to submit its annual budget requests directly to Congress and to receive its appropriation in one installment at the beginning of the fiscal year without apportionment by the Office of Management and Budget. 42 U.S.C. 搂搂 2996d(e)(2), 2996i(a) (1994). Cf. 31 U.S.C 搂 1512 (1994).鈥 .
The following are examples of some, but not all, requirements on federal grants that do not apply to 快猫视频 grants.
- 快猫视频 grants are not subject to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Office of Management and Budget (OMB), 2 C.F.R. Part 200. Rather, 快猫视频 sets cost standards and audit requirements on 快猫视频 grants. Neither 快猫视频 nor 快猫视频 funds meet the definitions of a federal agency, federal program, or federal financial assistance under 2 C.F.R. Part 200. Instead, 快猫视频 sets out cost principles at 45 C.F.R. Part 1630, and those principles in some places refer to OMB regulations for guidance.
- 快猫视频 grants are not included in the Catalog of Federal Domestic Assistance.
- 快猫视频 grants are not subject to the Federal Funding Accountability and Transparency Act (FFATA) or the Digital Accountability and Transparency Act (DATA Act). Thus, 快猫视频 grants are not included in the USASpending.gov data reporting system. Rather, 快猫视频 collects and publishes financial and case service data regarding 快猫视频 grants.
- Neither 快猫视频 nor 快猫视频 grants are within the authority of the Executive Branch to direct operations because 快猫视频 is not an agency and 快猫视频 grants are not federal grants. Thus, 快猫视频 and 快猫视频 grants are not subject to directives by the Office of Management and Budget or Executive Orders of the U.S. President that are directed to 鈥渁gencies鈥 or address requirements for federal grants.
The following are examples of some, but not all, federal requirements that apply to 快猫视频 grants because of specific mandates in statutory or other authorities.
- For purposes of specific federal laws relating to waste, fraud, and abuse with federal funds, 快猫视频 鈥渟hall be considered to be a Federal agency and all funds provided by [快猫视频] shall be considered to be Federal funds provided by grant or contract.鈥 L. 104-134, Sect. 504(a)(19) (1996) (incorporated by reference in 快猫视频鈥檚 annual appropriation). See 45 C.F.R. Part 1640鈥擜pplication of Federal Law to 快猫视频 Recipients. The exhaustive list of those laws appears at .
- 快猫视频 grants are audited under generally accepted government auditing standards and, for audit purposes, are treated as federal funds. Pub. L. 104-134, Sect. 509 (1996) (incorporated by reference in 快猫视频鈥檚 annual appropriation). For this reason, 快猫视频 grants appear on the Schedule of Federal Awards in 快猫视频 grantees鈥 financial statements, although they are not federal awards for any other purpose.
- 快猫视频 has an Office of Inspector General (OIG) as a 鈥渄esignated federal entity鈥 under section 8G of the Inspector General Act, [. The 快猫视频 OIG conducts audits, investigations, and other reviews of both 快猫视频 and 快猫视频 grants.
For any questions regarding these issues, including questions about whether other specific federal requirements apply to 快猫视频 grants, please contact Mark Freedman, Senior Associate General Counsel, at mfreedman@lsc.gov.
RONALD S. FLAGG
Vice President for Legal Affairs and General Counsel
MARK FREEDMAN
Senior Associate General Counsel