Guidelines for Carrying Out Section 221(a)(4) of the Flood Control Act of 1970, as Amended, 52258-52264 [2015-21355]
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[FR Doc. 2015–21363 Filed 8–27–15; 8:45 am]
BILLING CODE 6353–01–P
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Guidelines for Carrying Out Section
221(a)(4) of the Flood Control Act of
1970, as Amended
United States Army Corps of
Engineers, Department of Defense.
ACTION: Notice.
AGENCY:
The U.S. Army Corps of
Engineers (Corps) has updated the
existing guidance for providing in-kind
credit under Section 221(a)(4) of the
Flood Control Act of 1970, as further
amended by Section 1018 of the Water
Resources Reform and Development Act
of 2014.
DATES: Written comments must be
submitted on or before September 28,
2015.
ADDRESSES: You may submit comments,
identified by docket number COE–
2015–0013 by any of the following
methods:
Federal eRulemaking Portal: https://
www.regulations.gov . Follow the
instructions for submitting comments.
Email: Janice.E.Rasgus@
usace.army.mil. Include the docket
number, COE–2015–0013, in the subject
line of the message.
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SUMMARY:
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Mail: U.S. Army Corps of Engineers,
Attn: CECW–CE, Janice E. Rasgus, 441 G
Street NW., Washington, DC 20314–
1000.
Hand Delivery/Courier: Due to
security requirements, we cannot
receive comments by hand delivery or
courier.
Instructions: Direct your comments to
docket number COE–2015–0013. All
comments received will be included in
the public docket without change and
may be made available on-line at
https://www.regulations.gov, including
any personal information provided,
unless the commenter indicates that the
comment includes information claimed
to be Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute. Do
not submit information that you
consider to be CBI, or otherwise
protected, through regulations.gov or
email. The regulations.gov Web site is
an anonymous access system, which
means we will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an email directly to the
Corps without going through
regulations.gov, your email address will
be automatically captured and included
as part of the comment that is placed in
the public docket and made available on
the Internet. If you submit an electronic
comment, we recommend that you
include your name and other contact
information in the body of your
comment and with any disk or CD–ROM
you submit. If we cannot read your
comment because of technical
difficulties and cannot contact you for
clarification, we may not be able to
consider your comment. Electronic
comments should avoid the use of any
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: For access to the docket to
read background documents or
comments received, go to
www.regulations.gov. All documents in
the docket are listed. Although listed in
the index, some information is not
publicly available, such as CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form.
FOR FURTHER INFORMATION CONTACT:
Janice E. Rasgus, Planning and Policy
Division, Washington, DC at 202–761–
7674.
SUPPLEMENTARY INFORMATION: Section
1018(d) of WRRDA 2014 requires the
Corps to update and publish this draft
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of ER 1165–2–208 in the Federal
Register and offer the public an
opportunity to comment on the
proposed guidelines. The Corps will
review all comments received by the
deadline and will make its response to
those comments available when then ER
is finalized and published on the Corps
Web site.
Authority: We are proposing to issue
this Engineering Regulation under the
authority of Section 221 (a)(4) of the
Flood Control Act of 1970, as amended.
Dated: August 24, 2015.
Theodore A. Brown,
Chief, Planning and Policy Division,
Directorate of Civil Works.
Engineering Regulation, ER 1165–2–208,
In-Kind Contribution Credit
Provisions of Section 221(a)(4) of the
Flood Control Act of 1970, as
amended.
1. Purpose. This regulation provides
guidance on the implementation of the
in-kind contribution credit provisions of
Section 221(a)(4) of the Flood Control
Act of 1970, as further amended by
Section 1018 of the Water Resources
Reform and Development Act of 2014
(WRRDA 2014) (42 U.S.C. 1962d–
5b(a)(4)) (hereinafter referred to as
‘‘Section 221’’). Section 221(a)(4) of the
Flood Control Act of 1970, as amended,
and Section 1018 of WRRDA 2014 are
provided in Appendix A. This
regulation supersedes ER 1165–2–208
dated 17 February 2012.
2. Distribution Statement. Approved
for public release. Distribution is
unlimited.
3. Applicability. This regulation
applies to all HQUSACE elements,
Major Subordinate Commands (MSCs),
and district commands having Civil
Works responsibility and is effective
immediately.
a. The Section 221 crediting
provisions apply to the study, design,
and construction of water resources
development projects authorized in the
Water Resources Development Act of
1986 or later laws, including projects
initiated after November 16, 1986
without specific authorization in law. In
addition, the crediting provisions apply
to the correction of design deficiencies
for projects authorized prior to the
Water Resources Development Act of
1986. Finally, these provisions are also
applicable to a project under the an
environmental infrastructure assistance
program.
(1) For a project with a project
partnership agreement (PPA) that was
executed on or after November 8, 2007,
such PPA may be amended to include
work by the non-Federal sponsor that
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has not yet been initiated for credit
toward any remaining non-Federal cost
share under that agreement.
(2) Furthermore, in general, the
crediting provisions of Section 221 will
be used in lieu of Section 104 of WRDA
1986 and Section 215 of the Flood
Control Act of 1968. However, any
eligibility for credit under Section 104
of WRDA 1986 that was approved
previously by the Secretary will be
honored.
b. The authority for credit under
Section 221 credit is in addition to any
other authority to provide credit for inkind contributions. Section 221 credit
may be applied in lieu of other crediting
provisions if requested by the nonfederal sponsor.
4. Key Principles.
a. In General. Section 221 is a
comprehensive authority that addresses
the affording of credit for the value of
in-kind contributions provided by a
non-Federal sponsor toward its required
cost share (excluding the required 5
percent cash for structural flood damage
reduction projects and the additional 10
percent cash payment over 30 years for
navigation projects) if those in-kind
contributions are determined to be
integral to a study or project.
b. Types of In-Kind Contributions. The
types of in-kind contributions eligible
for credit include planning activities
(including data collection and other
services needed for a feasibility study);
design related to construction; and
construction (including management;
mitigation; and construction materials
and services).
c. Compliance with Applicable
Federal Laws, Regulations, and Policies.
Eligibility for credit is subject to the
non-Federal sponsor complying with all
applicable Federal laws and
implementing regulations, including,
but not limited to Section 601 of the
Civil Rights Act of 1964, as amended (42
U.S.C. 2000d), and Department of
Defense Directive 5500.11 issued
pursuant thereto; the Age
Discrimination Act of 1975 (42 U.S.C.
6102); the Rehabilitation Act of 1973, as
amended (29 U.S.C. 794), and Army
Regulation 600–7 issued pursuant
thereto; and 40 U.S.C. 3141–3148 and
40 U.S.C. 3701–3708 (labor standards
originally enacted as the Davis-Bacon
Act, the Contract Work Hours and
Safety Standards Act, the Copeland
Anti-Kickback Act); and the National
Environmental Policy Act and other
environmental laws and regulations.
d. In-Kind Memorandum of
Understanding (MOU).
(1) Construction. Section 221 provides
that any construction work that has not
been carried out as of November 8, 2007
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is eligible for credit only if the nonFederal sponsor executes an agreement
with the Secretary prior to carrying out
such work. For purposes of section 221
crediting only, ‘‘carrying out’’
construction work means initiation of
construction using the non-Federal
sponsor’s labor force or issuance of the
notice to proceed for such construction
if undertaken by contract. Therefore, in
those cases where there is not yet an
executed PPA, the non-Federal sponsor
must execute an in-kind MOU with the
Corps of Engineers prior to initiating
construction or issuing the notice to
proceed. Design work associated with
that construction is eligible for credit as
long as an in-kind MOU or PPA is
executed prior to the construction being
carried out. In addition, the
construction carried out by the nonFederal sponsor is not considered as
part of the future without project
condition.
(a) Projects Specifically Authorized.
For projects that are or will be
specifically authorized for construction,
an In-Kind MOU for construction may
be executed once there is vertical team
concurrence with the Tentatively
Selected Plan (TSP Milestone). The TSP
milestone is the point at which there is
vertical team concurrence on the plan
that will be released in the draft study
report for public and agency review.
Given the new SMART Planning
Process, the TSP Milestone should
occur much earlier in the planning
process than what was previously
achieved. Requests from non-Federal
sponsors to execute an in-kind MOU for
construction prior to the TSP Milestone
will be considered on a case-by- case
basis and must be approved by the
Assistant Secretary of the Army (Civil
Works). Since each project presents its
own unique combination of
circumstances, each request will require
an individual evaluation that will
include consideration of, but not limited
to, the following criteria:
(i) Whether the proposed work is a
modification of an existing Federal
project;
(ii) Whether the proposed work will
follow an existing levee alignment in
the case of a flood risk management
project;
(iii) Whether the proposed work
balances and integrates the wise use of
flood plains to ensure public safety;
(iv) Whether the proposed work
significantly reduces flood damage risk
to human life, property or critical
infrastructure; and
(iv) Whether the proposed work will
likely be included in the final project
recommendation.
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(b) Continuing Authority Program. For
projects implemented under the
Continuing Authority Program or a
regional authority that does not require
additional authorization to implement
the project, an In-Kind MOU for design
and implementation may be executed
after the MSC Commander approves the
decision document for the project.
(2) Design. For projects that are or will
be specifically authorized for
construction, an In-Kind MOU for
design may be executed after the TSP
milestone, i.e., the point at which there
is vertical team concurrence on the
tentatively selected plan that will be
released in the draft study report for
public and agency review.
(3) Planning.
(a) Projects Specifically Authorized.
For projects that are or will be
specifically authorized for construction,
Section 1002 of WRRDA 2014
eliminated the full Federal
reconnaissance phase that used to be
undertaken prior to execution of a
feasibility cost sharing agreement. In the
past, a project management plan, which
established the scope of the planning,
including activities needed to carry out
the study, was developed during this
reconnaissance phase. Under the new
single phase study process mandated by
WRRDA 2014, the project management
plan will not be developed until after
execution of feasibility cost sharing
agreement. Therefore, an In-Kind MOU
for planning is not permitted as the
project management plan, including a
determination of the scope of the study,
will not be developed until after
execution of a feasibility cost sharing
agreement.
(b) Continuing Authority Program. For
projects implemented under the
Continuing Authority Program or a
regional authority that does not require
additional authorization to implement
the project, sections 905(c) and 105(a)(3)
of WRDA 1986, as amended, provide
that the first $100,000 of these studies
is a Federal expense. Therefore, once a
PMP has been developed and the MSC
Commander has approved initiation of
the feasibility study, an In-Kind MOU
for planning may be executed.
(4) Any work undertaken by a nonFederal sponsor pursuant to an In-Kind
MOU is at its own risk and
responsibility. An In-Kind MOU
provides no assurance that the nonFederal sponsor’s work will be
determined to be integral to the Federal
project or that any construction
undertaken by the non-Federal sponsor
will be included as part of any
ultimately recommended Federal
project. Execution of an In-Kind MOU
in no way obligates the Corps to enter
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into any future agreement for the
project.
(5) MSC Commanders may approve a
District Engineer’s execution of Model
In-Kind MOUs for Construction or for
Design, provided that the MOUs do not
include any deviations. Any proposed
deviations must be submitted to
HQUSACE for approval prior to
execution. Models for the In-kind MOU
for construction, including design work,
and for design work only are available
at www.Corpsplanning.us.
e. Integral Determinations.
(1) Section 221 provides that credit
may be afforded only if the Secretary
determines that the material or service
provided as an in-kind contribution by
a non-Federal sponsor is integral to the
study or project.1 To be integral to the
study or project, the material or service
must be part of the work that the
Federal Government would otherwise
have undertaken for the study or for
construction of what is ultimately
determined to be the Federal project.
See Appendix B for additional guidance
on criteria and procedures for
processing integral determinations.
(2) The approval of integral
determinations is delegated to the MSC
Commander. The approval authority
delegated to the MSC Commander is
subject to the full compliance of each
integral determination to law and policy
and may not be further delegated within
the MSC or to the District Commander.
A separate integral determination is not
required for planning activities included
in the project management plan,
approved by the MSC Commander, as
required for the study effort.
f. Determining the Amount of Credit.
(1) The amount of in-kind
contributions that may be eligible for
inclusion in shared costs for cost
sharing purposes under the applicable
cost sharing agreement will be subject to
an audit by the Government to
determine the reasonableness,
allocability, and allowability of such
amount.
(2) The creditable amount is the lesser
of the costs incurred by the non-Federal
sponsor to obtain such materials or
services; the market value of such
materials or services as of the date that
the non-Federal sponsor provides such
materials or services for use in the study
or project; or the Government’s estimate
of the cost for such work if it had been
1 The costs of Coordination Team participation
and audits are not in-kind contributions and are not
included in ‘‘shared costs’’ for cost sharing
purposes. The costs of the non-Federal Sponsor’s
performance of investigations for hazardous
substances are eligible for inclusion as a shared
costs and for credit as an in-kind contribution and
do not require a separate integral determination.
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accomplished by the Government. This
amount is not subject to interest charges
or to adjustment to reflect changes in
price levels between the time the inkind contributions were completed and
the time the amount is credited.
(3) Any in-kind contributions
performed or paid for by the nonFederal sponsor using funds provided
by another Federal agency (as well as
any non-Federal matching share or
contribution that was required by such
Federal agency for such program or
grant) are not eligible for credit unless
the Federal agency providing the
Federal portion of such funds verifies in
writing that the funds are authorized to
be used to carry out the study or project.
(4) After execution of the applicable
FCSA, DA, or PPA, the non-Federal
sponsor will submit to the Government
(not less frequently than every 6
months) credit request(s) for eligible inkind contributions under that
agreement. The credit requests will
contain the following: (a) Written
certification by the non-Federal sponsor
of the payments made to contractors,
suppliers, or employees for in-kind
contributions; (b) copies of all relevant
invoices and evidence of such
payments; (c) written identification of
costs that have been paid with funds or
grants provided by a Federal agency as
well as any non-Federal matching share
or contribution that was required by
such Federal agency for such program or
grant; and (d) a written request for credit
of a specific amount not in excess of
such specified payments. Failure to
provide sufficient documentation
supporting the credit request will result
in a denial of credit in accordance with
the terms of the applicable cost sharing
agreement.
(5) In-kind contributions are subject to
a review (for feasibility level and design
activities) or on-site inspection
(construction), as applicable, and
certification by the Government that the
work was accomplished in a satisfactory
manner and in accordance with
applicable Federal laws, regulations,
and policies. The Government will not
include in the costs to be shared under
the applicable cost sharing agreement or
afford credit for any work the
Government determines was not
accomplished in a satisfactory manner
or in accordance with applicable
Federal laws, regulations, and policies.
(6) In general, the amount of credit for
in-kind contributions that can be
afforded under a FCSA or a PPA is
limited to the amount of the nonFederal sponsor’s cost share under that
agreement. As the costs of design under
a Design Agreement (DA) are included
in total project costs under a PPA, credit
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for in-kind contributions under a DA is
carried over to the PPA, and the
maximum of amount of credit for inkind contributions under a PPA is
limited to the non-Federal sponsor’s
required cost share under the PPA.
Credit for in-kind contributions may not
be afforded toward the required 5
percent cash payment for structural
flood damage reduction projects or the
additional 10 percent cash payment for
navigation projects.
(7) Credit for in-kind contributions for
planning is limited to credit that can be
afforded under a specific FCSA. In other
words, excess credit may not be carried
over to design or construction of the
project. Credit for planning work by the
non-Federal sponsor is limited to its 50
percent of planning costs and will be
done in accordance with the PMP,
under the terms and conditions in the
FCSA.
(8) Credit for in-kind contributions
provided by a non-Federal sponsor for
the construction of a project, or
separable element thereof, that are in
excess of the non-Federal cost share for
an authorized separable element of a
project may be applied toward the nonfederal cost share for a different
authorized separable element of the
same project. Additional Federal
appropriations will be required to offset
the application of any excess credit to
another separable element.
(9) If the value of eligible in-kind
contributions exceeds the amount of
credit that can be afforded pursuant to
the provisions of a PPA (i.e., exceeds the
required non-Federal cost share for all
features covered by that PPA), only the
amount of credit afforded should be
included in total project costs.
Recalculation of total project costs will
be required to exclude from total project
costs the value of in-kind contributions
that exceed the amount of credit that
can be afforded. In addition, the amount
excluded will not be considered part of
total costs for the purposes of Section
902 of WRDA 1986 calculations.
(10) No reimbursements are
authorized for in-kind contributions
under Section 221 except as provided in
paragraph 4 g., below.
g. Lands, Easements, Relocations,
Rights-of-Way, and Areas for Disposal of
Dredged Material (LERRDs). Section 221
does not alter any other requirement for
the non-Federal sponsor to provide
LERRDs for a project. Any LERRDs
associated with in-kind contributions
determined to be integral to the project
will be credited to the project as
LERRDs. For a navigation project,
LERRs are creditable only toward the
requirement for the non-Federal sponsor
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to pay an additional 10 percent of the
cost of the general navigation features.
(1) Previously, credit for in-kind
contributions was afforded only toward
the non-Federal sponsor’s required cash
contribution after consideration of the
value of LERRDs provided by the nonFederal sponsor. WRRDA 2014 changes
how credit for in-kind contributions is
calculated. For projects other than
navigation projects, to the extent that
credit for LERRDs combined with credit
for the value of in-kind contributions
exceed the non-Federal share of the cost
of a project, WRRDA 2014 provides that
the Secretary, subject to the availability
of funds, shall enter into a separate
reimbursement agreement to reimburse
the non-Federal sponsor for the
difference between creditable LERRDs
and in-kind contributions and the nonFederal cost share. Therefore, at the
final accounting for the project, to the
extent funds for the project remain
available, the Secretary shall execute an
agreement with the non-Federal sponsor
for reimbursement of the difference.
(2) If funds remaining on a project are
insufficient to provide full
reimbursement under paragraph f.(1),
the non-Federal sponsor may request
reimbursement. The Secretary shall
prioritize such requests, and enter into
reimbursements agreements, in the
order the requests were received, as
funds become available for
reimbursements.
5. Design. Design by the non-Federal
sponsor must be performed in
accordance with the requirements in ER
1110–2–1150, reviewed in accordance
with ER 1110–1–12, and subject to the
applicable peer review guidance. In
accordance with section 105(c) of
WRDA 1986, the costs of design shall be
shared in the same percentages as the
purposes of such project.
a. If the value of eligible in-kind
contributions is less than the nonFederal sponsor’s share of design costs,
the non-Federal sponsor must
contribute sufficient funds to equal its
share of total design costs.
b. If the value of eligible in-kind
contributions is greater than the nonFederal sponsor’s share of total design
costs, then no cash payment from the
non-Federal sponsor is required. The
value of all of the non-Federal sponsor’s
eligible in-kind contributions (including
those in excess of its share of total
design costs) will be included in total
project costs in the PPA. The maximum
amount of credit that may be afforded
pursuant to the PPA is limited to the
non-Federal sponsor’s cost share under
that agreement.
6. Construction.
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a. To be eligible for credit, in-kind
contributions prior to execution of the
PPA must have been provided or
performed after execution of an In-Kind
MOU. Credit for in-kind contributions
will not be afforded toward the nonFederal sponsor’s requirement to
provide in cash 5 percent of the costs for
structural flood damage reduction
projects (either specifically authorized
or implemented pursuant to Continuing
Authority Program Sections 14, 205, or
208 projects); the non-Federal sponsor’s
requirement to pay for betterments or
any other work performed by the
Government on behalf of the nonFederal sponsor; the non-Federal
sponsor’s requirement to provide lands,
easements, rights-of-way, relocations, or
improvements to enable the disposal of
dredged or excavated material required
for the project or separable element of
the project; or the non-Federal sponsor’s
additional payment of 10 percent of the
cost of general navigation features for a
navigation project.
b. The non-Federal sponsor may not
initiate construction following
execution of a PPA until the designs,
detailed plans and specifications, and
arrangements for the prosecution of
such work have been approved by the
Government. In addition, any proposed
changes to approved designs and plans
and specifications must be approved by
the Government in advance of such
construction. Upon completion of
construction, the non-Federal sponsor
will furnish to the Government a copy
of all final as-built drawings.
c. For CAP authorities and regional
authorities that are implemented with a
single agreement covering design and
implementation, if a non-Federal
sponsor proposes to provide or perform
all or a portion of the design for a
project as in-kind contributions, a PPA
addressing both design and construction
is required.
FOR THE COMMANDER:
Colonel, Corps of Engineers
Chief of Staff
Enclosures: 2 Appendices
Appendix A—Section 221(a)(4) of the
Flood Control Act of 1970, as
amended (42 U.S.C. 1962d–5b(a)(4)
Section 221(a)(4) of the Flood Control
Act of 1970, as amended, and Section
1018 of WRRDA 2014
Appendix B—Criteria for In-Kind
Contribution Integral Determinations
APPENDIX A
Section 221(a)(4) of the Flood Control
Act of 1970, as amended (42 U.S.C.
1962d–5b(a)(4))
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SEC. 221. WRITTEN AGREEMENT
REQUIREMENT FOR WATER
RESOURCES PROJECTS.
COOPERATION OF NON-FEDERAL
INTEREST.
(4) Credit for in-kind contributions.
(A) In general. A partnership
agreement described in paragraph (1)
may provide with respect to a project
that the Secretary shall credit toward
the non-Federal share of the cost of the
project, including a project
implemented without specific
authorization in law or a project under
an environmental infrastructure
assistance program, the value of in-kind
contributions made by the non-Federal
interest, including—
(i) the costs of planning (including
data collection), design, management,
mitigation, construction, and
construction services that are provided
by the non-Federal interest for
implementation of the project;
(ii) the value of materials or services
provided before execution of the
partnership agreement, including efforts
on constructed elements incorporated
into the project; and
(iii) the value of materials and
services provided after execution of the
partnership agreement.
(B) Condition. The Secretary may
credit an in-kind contribution under
subparagraph (A) only if the Secretary
determines that the material or service
provided as an in-kind contribution is
integral to the project.
(C) Work performed before
partnership agreement.
(i) Construction.
(I) In general. In any case in which the
non-Federal interest is to receive credit
under subparagraph (A) for the cost of
construction carried out by the nonFederal interest before execution of a
partnership agreement and that
construction has not been carried out as
of November 8, 2007, the Secretary and
the non-Federal interest shall enter into
an agreement under which the nonFederal interest shall carry out such
work and shall do so prior to the nonFederal interest initiating construction
or issuing a written notice to proceed for
the construction.
(II) Eligibility. Construction that is
carried out after the execution of an
agreement to carry out work described
in subclause (I) and any design activities
that are required for that construction,
even if the design activity is carried out
prior to the execution of the agreement
to carry out work, shall be eligible for
credit.
(ii) Planning.
(I) In general. In any case in which the
non-Federal interest is to receive credit
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under subparagraph (A) for the cost of
planning carried out by the non-Federal
interest before execution of a feasibility
cost-sharing agreement, the Secretary
and the non-Federal interest shall enter
into an agreement under which the nonFederal interest shall carry out such
work and shall do so prior to the nonFederal interest initiating that planning.
(II) Eligibility. Planning that is carried
out by the non-Federal interest after the
execution of an agreement to carry out
work described in subclause (I) shall be
eligible for credit.
(D) Limitations. Credit authorized
under this paragraph for a project—
(i) shall not exceed the non-Federal
share of the cost of the project;
(ii) shall not alter any other
requirement that a non-Federal interest
provide lands, easements, relocations,
rights-of-way, or areas for disposal of
dredged material for the project;
(iii) shall not alter any requirement
that a non-Federal interest pay a portion
of the costs of construction of the
project under sections 101(a)(2) and
103(a)(1)(A) of the Water Resources
Development Act of 1986 (33 U.S.C.
2211(a)(2); 33 U.S.C. 2213(a)(1)(A)) of
the Water Resources Development Act
of 1986 (33 U.S.C. 2211; 33 U.S.C.
2213); and
(iv) shall not exceed the actual and
reasonable costs of the materials,
services, or other things provided by the
non-Federal interest, as determined by
the Secretary.
(E) Analysis of costs and benefits. In
the evaluation of the costs and benefits
of a project, the Secretary shall not
consider construction carried out by a
non-Federal interest under this
subsection as part of the future without
project condition.
(F) Transfer of credit between
separable elements of a project. Credit
for in-kind contributions provided by a
non-Federal interest that are in excess of
the non-Federal cost share for an
authorized separable element of a
project may be applied toward the nonFederal cost share for a different
authorized separable element of the
same project.
(G) Application of credit.
(i) In general. To the extent that credit
for in-kind contributions, as limited by
subparagraph (D), and credit for
required land, easements, rights-of-way,
dredged material disposal areas, and
relocations provided by the non-Federal
interest exceed the non-Federal share of
the cost of construction of a project
other than a navigation project, the
Secretary, subject to the availability of
funds, shall enter into a reimbursement
agreement with the non-Federal interest,
which shall be in addition to a
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partnership agreement under
subparagraph (A), to reimburse the
difference to the non-Federal interest.
(ii) Priority. If appropriated funds are
insufficient to cover the full cost of all
requested reimbursement agreements
under clause (i), the Secretary shall
enter into reimbursement agreements in
the order in which requests for such
agreements are received.’’; and
(H) Applicability.
(i) In general. This paragraph shall
apply to water resources projects
authorized after November 16, 1986,
including projects initiated after
November 16, 1986, without specific
authorization in law, and to water
resources projects authorized prior to
the date of enactment of the Water
Resources Development Act of 1986
(Public Law 99–662) [enacted June 10,
2014], if correction of design
deficiencies is necessary.
(ii) Authorization as addition to other
authorizations. The authority of the
Secretary to provide credit for in-kind
contributions pursuant to this paragraph
shall be in addition to any other
authorization to provide credit for inkind contributions and shall not be
construed as a limitation on such other
authorization. The Secretary shall apply
the provisions of this paragraph, in lieu
of provisions under other crediting
authority, only if so requested by the
non-Federal interest.
Section 1018 of the Water Resources
Reform and Development Act of 2014
Sec. 1018. CREDIT FOR IN-KIND
CONTRIBUTIONS.
(a) In General.—Section 221(a)(4) of
the Flood Control Act of 1970 (42 U.S.C.
1962d–5b(a)(4)) is amended—
(1) in subparagraph (A), in the matter
preceding clause (i), by inserting ‘‘or a
project under an environmental
infrastructure assistance program’’ after
‘‘law’’;
(2) in subparagraph (C) by striking ‘‘In
any case’’ and all that follows through
the period at the end and inserting the
following:
‘‘(i) CONSTRUCTION.—
‘‘(I) In General.—In any case in which
the non-Federal interest is to receive
credit under subparagraph (A) for the
cost of construction carried out by the
non-Federal interest before execution of
a partnership agreement and that
construction has not been carried out as
of November 8, 2007, the Secretary and
the non-Federal interest shall enter into
an agreement under which the nonFederal interest shall carry out such
work and shall do so prior to the nonFederal interest initiating construction
or issuing a written notice to proceed for
the construction.
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‘‘(II) Eligibility.—Construction that is
carried out after the execution of an
agreement to carry out work described
in subclause (I) and any design activities
that are required for that construction,
even if the design activity is carried out
prior to the execution of the agreement
to carry out work, shall be eligible for
credit.
‘‘(ii) PLANNING.—
‘‘(I) In General.—In any case in which
the non-Federal interest is to receive
credit under subparagraph (A) for the
cost of planning carried out by the nonFederal interest before execution of a
feasibility cost-sharing agreement, the
Secretary and the non-Federal interest
shall enter into an agreement under
which the non-Federal interest shall
carry out such work and shall do so
prior to the non-Federal interest
initiating that planning.
‘‘(II) Eligibility.—Planning that is
carried out by the non-Federal interest
after the execution of an agreement to
carry out work described in subclause
(I) shall be eligible for credit.’’;
(3) in subparagraph (D)(iii) by striking
‘‘sections 101 and 103’’ and inserting
‘‘sections 101(a)(2) and 103(a)(1)(A) of
the Water Resources Development Act
of 1986 (33 U.S.C. 2211(a)(2); 33 U.S.C.
2213(a)(1)(A))’’;
(4) by redesignating subparagraph (E)
as subparagraph (H);
(5) by inserting after subparagraph (D)
the following:
‘‘(E) Analysis of Costs and Benefits.—
In the evaluation of the costs and
benefits of a project, the Secretary shall
not consider construction carried out by
a non-Federal interest under this
subsection as part of the future without
project condition.
‘‘(F) Transfer of Credit Between
Separable Elements of a Project.—Credit
for in-kind contributions provided by a
non-Federal interest that are in excess of
the non-Federal cost share for an
authorized separable element of a
project may be applied toward the nonFederal cost share for a different
authorized separable element of the
same project.
‘‘(G) APPLICATION OF CREDIT.—
‘‘(i) In General.—To the extent that
credit for in-kind contributions, as
limited by subparagraph (D), and credit
for required land, easements, rights-ofway, dredged material disposal areas,
and relocations provided by the nonFederal interest exceed the non-Federal
share of the cost of construction of a
project other than a navigation project,
the Secretary, subject to the availability
of funds, shall enter into a
reimbursement agreement with the nonFederal interest, which shall be in
addition to a partnership agreement
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under subparagraph (A), to reimburse
the difference to the non-Federal
interest.
‘‘(ii) Priority.—If appropriated funds
are insufficient to cover the full cost of
all requested reimbursement agreements
under clause (i), the Secretary shall
enter into reimbursement agreements in
the order in which requests for such
agreements are received.’’; and
(6) in subparagraph (H) (as
redesignated by paragraph (4))—
(A) in clause (i) by inserting ‘‘, and to
water resources projects authorized
prior to the date of enactment of the
Water Resources Development Act of
1986 (Public Law 99–662), if correction
of design deficiencies is necessary’’
before the period at the end; and
(B) by striking clause (ii) and inserting
the following:
‘‘(ii) Authorization As Addition to
Other Authorizations.—The authority of
the Secretary to provide credit for inkind contributions pursuant to this
paragraph shall be in addition to any
other authorization to provide credit for
in-kind contributions and shall not be
construed as a limitation on such other
authorization. The Secretary shall apply
the provisions of this paragraph, in lieu
of provisions under other crediting
authority, only if so requested by the
non-Federal interest.’’.
(b) Applicability.—Section 2003(e) of
the Water Resources Development Act
of 2007 (42 U.S.C. 1962d–5b note) is
amended—
(1) by inserting ‘‘, or construction of
design deficiency corrections on the
project,’’ after ‘‘construction on the
project’’; and
(2) by inserting ‘‘, or under which
construction of the project has not been
completed and the work to be
performed by the non-Federal interests
has not been carried out and is
creditable only toward any remaining
non-Federal cost share,’’ after ‘‘has not
been initiated’’.
(c) Effective Date.—The amendments
made by subsections (a) and (b) take
effect on November 8, 2007.
(d) Guidelines.—
(1) In General.— Not later than 1 year
after the date of enactment of this Act,
the Secretary shall update any guidance
or regulations for carrying out section
221(a)(4) of the Flood Control Act of
1970 (42 U.S.C. 1962d–5b(a)(4)) (as
amended by subsection (a)) that are in
existence on the date of enactment of
this Act or issue new guidelines, as
determined to be appropriate by the
Secretary.
(2) Inclusions.— Any guidance,
regulations, or guidelines updated or
issued under paragraph (1) shall
include, at a minimum—
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(A) the milestone for executing an inkind memorandum of understanding for
construction by a non-Federal interest;
(B) criteria and procedures for
evaluating a request to execute an inkind memorandum of understanding for
construction by a non-Federal interest
that is earlier than the milestone under
subparagraph (A) for that execution; and
(C) criteria and procedures for
determining whether work carried out
by a non-Federal interest is integral to
a project.
(3) Public and Stakeholder
Participation.— Before issuing any new
or revised guidance, regulations, or
guidelines or any subsequent updates to
those documents, the Secretary shall—
(A) consult with affected non-Federal
interests;
(B) publish the proposed guidelines
developed under this subsection in the
Federal Register; and
(C) provide the public with an
opportunity to comment on the
proposed guidelines.
(e) Other Credit.—Nothing in section
221(a)(4) of the Flood Control Act of
1970 (42 U.S.C. 1962d-5b(a)(4)) (as
amended by subsection (a)) affects any
eligibility for credit under section 104 of
the Water Resources Development of
1986 (33 U.S.C. 2214) that was approved
by the Secretary prior to the date of
enactment of this Act.
APPENDIX B
Criteria and Procedures for In-Kind
Contribution Integral Determinations
C–1. Determining if In-Kind
Contributions Are Integral to the Study/
Project. Establishing and allowing credit
is a two step process whereby: 1)
eligibility is determined by performing
the integral determination, and 2) actual
affording of credit is accomplished by
audit of the non-Federal work by the
District Engineer under the terms of the
FCSA, DA, or PPA, as appropriate. The
Government must determine that the inkind contributions are integral to the
study or project for those contributions
to be considered eligible for credit.
a. Approval Level of Integral
Determinations. Under the terms of
Paragraph 4.e.. of this regulation,
approval of integral determinations is
delegated to the MSC Commander. This
authority may not be further delegated.
b. Timing of Integral Determinations.
(1) The integral determination must
be completed immediately prior to
review and approval of a DA or PPA, or
amendment as applicable, that provides
for the affording of credit. The integral
determination for planning efforts is
accomplished as part of the
development of the PMP. An integral
determination is not required prior to
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52263
execution of an In-Kind MOU for design
or construction.
(2) Include at least 30 days in the
project schedule for processing at the
MSC of the Integral Determinations by
the MSC Commander. These times are
recommended for scheduling purposes
and should be extended if processing
identifies significant issues requiring
resolution.
c. Procedures for Processing.
(1) For a feasibility study, planning
activities, including data collection,
must be included in the approved
Project Management Plan in order for
those contributions to be eligible for
credit.
(2) The District will prepare an
Integral Determination Report (IDR) for
design and construction work that
includes at a minimum the information
contained in the following paragraphs.
A suggested format for an IDR can be
found at www.Corpsplanning.us. The
IDR shall contain a description of the
activities required to perform the design
or construction, as applicable, of the
Federal project or separable element in
sufficient detail to allow a comparison
with the description of the proposed inkind contributions; a detailed
description of the work items proposed
to be provided or performed as in-kind
contributions; a discussion of how each
work item proposed to be provided or
performed as an in-kind contribution is
integral to the project; an estimate of the
costs of each work item proposed to be
provided or performed as an in-kind
contribution; the estimated amount of
credit to be afforded for each work item
proposed to be provided or performed
as an in-kind contribution; and a
District Commander recommendation
identifying which of the proposed inkind contributions should be considered
integral to the project. If the in-kind
contributions were provided or
performed prior to execution of the
applicable cost sharing agreement, then
also include in the IDR the results of the
review or inspection, as applicable, and
certification by the District Commander
on whether the work was accomplished
in a satisfactory manner and in
accordance with applicable Federal
laws, regulations, and policies; and
documentation of satisfactory
environmental compliance for the
construction portion of the in-kind
contributions.
(3) The district will submit the IDR to
the MSC District Support Team for
action. The MSC District Support Team
will perform the MSC review of the IDR.
The MSC review team also will include
members from the MSC Office of
Counsel and from the MSC Planning
Community of Practice (CoP), MSC
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Engineering and Construction CoP, MSC
Real Estate CoP, and other CoPs, as
needed. In addition, if the proposed inkind contributions consist of design or
construction of dams, levees, or bridges,
the MSC review team must include the
MSC Dam, Levee, or Bridge Safety
Officer. After satisfactory resolution of
all comments on the IDR and a
determination that the IDR complies
with all applicable law and policy, the
MSC District Support Team shall
prepare an Integral Determination memo
for approval and signature by the MSC
Commander. If the IDR does not or
cannot be modified to comply with law
and policy, then the MSC should
contact the HQUSACE RIT to facilitate
the resolution of the concerns.
(4) The Integral Determination
approval memo will state whether the
work identified in the IDR, or a portion
thereof, has been determined to be
integral to the project. In addition, the
memo should state that determination of
the actual value of the in-kind
contributions and affording credit for
such amount will be accomplished by
the Government in accordance with the
limitations, conditions, and terms of the
applicable cost sharing agreement.
C–2. The following may be accepted
as integral:
The proposed in-kind contributions
are a part of the Federal project.
b. The proposed in-kind contributions
consist of work that the Government
would have otherwise provided or
performed for the project, except for
performance of activities that are
inherently Governmental
responsibilities (see paragraph C–3
below). Examples of activities that are
acceptable in-kind contributions:
performance of design of all or a portion
of the Federal project, including data
collection related to design work;
demolition of buildings on lands
required for the project; performance of
design or construction related studies
for historic preservation activities;
performance of cost shared monitoring
and adaptive management; and
construction of a portion of the project.
c. For proposed in-kind contributions
performed prior to execution of the
applicable cost sharing agreement, the
in-kind contributions have been
reviewed or inspected, as applicable,
and certified by the Government that the
work was accomplished in a satisfactory
manner and in accordance with
applicable Federal laws, regulations,
and policies.
d. For any proposed in-kind
contributions proposed to be performed
after execution of the PPA, the plans
and specifications will be approved by
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the District Commander prior to
initiation of the construction work.
e. For materials provided for use in
construction work managed by the
Government, the materials meet the
minimum Government requirements for
materials and any substitute materials
have been determined to be a functional
equivalent in accordance with policies
governing contractor substitution of
materials.
C–3. The following will not be
accepted as integral:
a. The proposed in-kind contributions
are not part of the Federal project.
b. The proposed in-kind contributions
consist of performance of activities that
are inherently Governmental
responsibilities (e.g., management of
Government contracts; performance of
District Quality Review, Agency
Technical Review, Independent
External Peer Review, or Policy
Compliance Review; determining if
Value Engineering evaluations are
acceptable; determining the LERRD
required for the project or separable
element of the project; determining the
value of LERRD for crediting purposes;
or making determinations as to
compliance with applicable
environmental laws and regulations).
c. The proposed in-kind contributions
are features or obligations that are a 100
percent non-Federal sponsor
responsibility (e.g., purposes of land
reclamation, local drainage, to protect
against land or bank erosion, and/or the
removal of hazardous, toxic, or
radioactive wastes; local service
facilities; betterments; acquisition and
performance of LERRD, except for the
provision of dredged or excavated
material disposal facilities for
commercial navigation projects; and
performance of OMRR&R);
d. The proposed in-kind contributions
have or will create a hazard to human
life or property.
e. The proposed in-kind contributions
have been determined to be
environmentally unacceptable.
f. For proposed in-kind contributions
performed prior to execution of the
applicable cost sharing agreement, after
review or inspection, as applicable, the
Government cannot certify the proposed
in-kind contributions were
accomplished in a satisfactory manner
and in accordance with applicable
Federal laws, regulations, and policies.
g. For proposed in-kind contributions
performed prior to execution of the
applicable cost sharing agreement, the
non-Federal sponsor has not performed
the necessary operation, maintenance,
repair, rehabilitation, or replacement.
[FR Doc. 2015–21355 Filed 8–27–15; 8:45 am]
BILLING CODE 3720–58–P
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Notice of Availability (NOA) of the Draft
Environmental Impact Statement
(DEIS) and the Announcement of a
Public Hearing for the Installation of a
Terminal Groin Structure at the
Eastern End of Holden Beach,
Extending into the Atlantic Ocean,
West of Lockwood Folly Inlet
(Brunswick County, NC)
Department of the Army, U.S.
Army Corps of Engineers, DoD.
ACTION: Notice of availability.
AGENCY:
The U.S. Army Corps of
Engineers (USACE), Wilmington
District, Wilmington Regulatory Field
Office has received a request for
Department of the Army authorization,
pursuant to Section 404 of the Clean
Water Act and Section 10 of the Rivers
and Harbor Act, from the Town of
Holden Beach to install a terminal groin
structure on the east end of Holden
Beach, extending into the Atlantic
Ocean, just west of Lockwood Folly
Inlet.
SUMMARY:
Written comments on the DEIS
will be received until 5 p.m., October
13, 2015.
ADDRESSES: Copies of comments and
questions regarding the DEIS may be
submitted to: U.S. Army Corps of
Engineers (Corps), Wilmington District,
Regulatory Division, c/o Mrs. Emily
Hughes. ATTN: File Number SAW–
2011–01914, 69 Darlington Avenue,
Wilmington, NC 28403.
FOR FURTHER INFORMATION CONTACT:
Questions about the proposed action
and DEIS can be directed to Mrs. Emily
Hughes, Wilmington Regulatory Field
Office, telephone: (910) 251–4635,
facsimile (910) 251–4025, or email at
emily.b.hughes@usace.army.mil.
SUPPLEMENTARY INFORMATION:
1. Project Description. The Town of
Holden Beach is seeking Federal and
State authorization for construction of a
terminal groin, and associated beach
fillet with required long-term
maintenance, to be located at the eastern
end of Holden Beach. The proposed
terminal groin and beach fillet is the
Town’s Applicant Preferred alternative
(Alternative 6—Intermediate Terminal
Groin and Beach Nourishment) of six
alternatives considered in this
document. Under the Applicant’s
preferred alternative, the main stem of
the terminal groin would include a 700foot long segment extending seaward
from the toe of the primary dune and a
DATES:
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Agencies
[Federal Register Volume 80, Number 167 (Friday, August 28, 2015)]
[Notices]
[Pages 52258-52264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21355]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Guidelines for Carrying Out Section 221(a)(4) of the Flood
Control Act of 1970, as Amended
AGENCY: United States Army Corps of Engineers, Department of Defense.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The U.S. Army Corps of Engineers (Corps) has updated the
existing guidance for providing in-kind credit under Section 221(a)(4)
of the Flood Control Act of 1970, as further amended by Section 1018 of
the Water Resources Reform and Development Act of 2014.
DATES: Written comments must be submitted on or before September 28,
2015.
ADDRESSES: You may submit comments, identified by docket number COE-
2015-0013 by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov . Follow the
instructions for submitting comments.
Email: Janice.E.Rasgus@usace.army.mil. Include the docket number,
COE-2015-0013, in the subject line of the message.
Mail: U.S. Army Corps of Engineers, Attn: CECW-CE, Janice E.
Rasgus, 441 G Street NW., Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
Instructions: Direct your comments to docket number COE-2015-0013.
All comments received will be included in the public docket without
change and may be made available on-line at https://www.regulations.gov,
including any personal information provided, unless the commenter
indicates that the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI, or otherwise protected, through regulations.gov or
email. The regulations.gov Web site is an anonymous access system,
which means we will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
directly to the Corps without going through regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, we recommend that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If we cannot read your
comment because of technical difficulties and cannot contact you for
clarification, we may not be able to consider your comment. Electronic
comments should avoid the use of any special characters, any form of
encryption, and be free of any defects or viruses.
Docket: For access to the docket to read background documents or
comments received, go to www.regulations.gov. All documents in the
docket are listed. Although listed in the index, some information is
not publicly available, such as CBI or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form.
FOR FURTHER INFORMATION CONTACT: Janice E. Rasgus, Planning and Policy
Division, Washington, DC at 202-761-7674.
SUPPLEMENTARY INFORMATION: Section 1018(d) of WRRDA 2014 requires the
Corps to update and publish this draft of ER 1165-2-208 in the Federal
Register and offer the public an opportunity to comment on the proposed
guidelines. The Corps will review all comments received by the deadline
and will make its response to those comments available when then ER is
finalized and published on the Corps Web site.
Authority: We are proposing to issue this Engineering Regulation
under the authority of Section 221 (a)(4) of the Flood Control Act of
1970, as amended.
Dated: August 24, 2015.
Theodore A. Brown,
Chief, Planning and Policy Division, Directorate of Civil Works.
Engineering Regulation, ER 1165-2-208, In-Kind Contribution Credit
Provisions of Section 221(a)(4) of the Flood Control Act of 1970, as
amended.
1. Purpose. This regulation provides guidance on the implementation
of the in-kind contribution credit provisions of Section 221(a)(4) of
the Flood Control Act of 1970, as further amended by Section 1018 of
the Water Resources Reform and Development Act of 2014 (WRRDA 2014) (42
U.S.C. 1962d-5b(a)(4)) (hereinafter referred to as ``Section 221'').
Section 221(a)(4) of the Flood Control Act of 1970, as amended, and
Section 1018 of WRRDA 2014 are provided in Appendix A. This regulation
supersedes ER 1165-2-208 dated 17 February 2012.
2. Distribution Statement. Approved for public release.
Distribution is unlimited.
3. Applicability. This regulation applies to all HQUSACE elements,
Major Subordinate Commands (MSCs), and district commands having Civil
Works responsibility and is effective immediately.
a. The Section 221 crediting provisions apply to the study, design,
and construction of water resources development projects authorized in
the Water Resources Development Act of 1986 or later laws, including
projects initiated after November 16, 1986 without specific
authorization in law. In addition, the crediting provisions apply to
the correction of design deficiencies for projects authorized prior to
the Water Resources Development Act of 1986. Finally, these provisions
are also applicable to a project under the an environmental
infrastructure assistance program.
(1) For a project with a project partnership agreement (PPA) that
was executed on or after November 8, 2007, such PPA may be amended to
include work by the non-Federal sponsor that
[[Page 52259]]
has not yet been initiated for credit toward any remaining non-Federal
cost share under that agreement.
(2) Furthermore, in general, the crediting provisions of Section
221 will be used in lieu of Section 104 of WRDA 1986 and Section 215 of
the Flood Control Act of 1968. However, any eligibility for credit
under Section 104 of WRDA 1986 that was approved previously by the
Secretary will be honored.
b. The authority for credit under Section 221 credit is in addition
to any other authority to provide credit for in-kind contributions.
Section 221 credit may be applied in lieu of other crediting provisions
if requested by the non-federal sponsor.
4. Key Principles.
a. In General. Section 221 is a comprehensive authority that
addresses the affording of credit for the value of in-kind
contributions provided by a non-Federal sponsor toward its required
cost share (excluding the required 5 percent cash for structural flood
damage reduction projects and the additional 10 percent cash payment
over 30 years for navigation projects) if those in-kind contributions
are determined to be integral to a study or project.
b. Types of In-Kind Contributions. The types of in-kind
contributions eligible for credit include planning activities
(including data collection and other services needed for a feasibility
study); design related to construction; and construction (including
management; mitigation; and construction materials and services).
c. Compliance with Applicable Federal Laws, Regulations, and
Policies. Eligibility for credit is subject to the non-Federal sponsor
complying with all applicable Federal laws and implementing
regulations, including, but not limited to Section 601 of the Civil
Rights Act of 1964, as amended (42 U.S.C. 2000d), and Department of
Defense Directive 5500.11 issued pursuant thereto; the Age
Discrimination Act of 1975 (42 U.S.C. 6102); the Rehabilitation Act of
1973, as amended (29 U.S.C. 794), and Army Regulation 600-7 issued
pursuant thereto; and 40 U.S.C. 3141-3148 and 40 U.S.C. 3701-3708
(labor standards originally enacted as the Davis-Bacon Act, the
Contract Work Hours and Safety Standards Act, the Copeland Anti-
Kickback Act); and the National Environmental Policy Act and other
environmental laws and regulations.
d. In-Kind Memorandum of Understanding (MOU).
(1) Construction. Section 221 provides that any construction work
that has not been carried out as of November 8, 2007 is eligible for
credit only if the non-Federal sponsor executes an agreement with the
Secretary prior to carrying out such work. For purposes of section 221
crediting only, ``carrying out'' construction work means initiation of
construction using the non-Federal sponsor's labor force or issuance of
the notice to proceed for such construction if undertaken by contract.
Therefore, in those cases where there is not yet an executed PPA, the
non-Federal sponsor must execute an in-kind MOU with the Corps of
Engineers prior to initiating construction or issuing the notice to
proceed. Design work associated with that construction is eligible for
credit as long as an in-kind MOU or PPA is executed prior to the
construction being carried out. In addition, the construction carried
out by the non-Federal sponsor is not considered as part of the future
without project condition.
(a) Projects Specifically Authorized. For projects that are or will
be specifically authorized for construction, an In-Kind MOU for
construction may be executed once there is vertical team concurrence
with the Tentatively Selected Plan (TSP Milestone). The TSP milestone
is the point at which there is vertical team concurrence on the plan
that will be released in the draft study report for public and agency
review. Given the new SMART Planning Process, the TSP Milestone should
occur much earlier in the planning process than what was previously
achieved. Requests from non-Federal sponsors to execute an in-kind MOU
for construction prior to the TSP Milestone will be considered on a
case-by- case basis and must be approved by the Assistant Secretary of
the Army (Civil Works). Since each project presents its own unique
combination of circumstances, each request will require an individual
evaluation that will include consideration of, but not limited to, the
following criteria:
(i) Whether the proposed work is a modification of an existing
Federal project;
(ii) Whether the proposed work will follow an existing levee
alignment in the case of a flood risk management project;
(iii) Whether the proposed work balances and integrates the wise
use of flood plains to ensure public safety;
(iv) Whether the proposed work significantly reduces flood damage
risk to human life, property or critical infrastructure; and
(iv) Whether the proposed work will likely be included in the final
project recommendation.
(b) Continuing Authority Program. For projects implemented under
the Continuing Authority Program or a regional authority that does not
require additional authorization to implement the project, an In-Kind
MOU for design and implementation may be executed after the MSC
Commander approves the decision document for the project.
(2) Design. For projects that are or will be specifically
authorized for construction, an In-Kind MOU for design may be executed
after the TSP milestone, i.e., the point at which there is vertical
team concurrence on the tentatively selected plan that will be released
in the draft study report for public and agency review.
(3) Planning.
(a) Projects Specifically Authorized. For projects that are or will
be specifically authorized for construction, Section 1002 of WRRDA 2014
eliminated the full Federal reconnaissance phase that used to be
undertaken prior to execution of a feasibility cost sharing agreement.
In the past, a project management plan, which established the scope of
the planning, including activities needed to carry out the study, was
developed during this reconnaissance phase. Under the new single phase
study process mandated by WRRDA 2014, the project management plan will
not be developed until after execution of feasibility cost sharing
agreement. Therefore, an In-Kind MOU for planning is not permitted as
the project management plan, including a determination of the scope of
the study, will not be developed until after execution of a feasibility
cost sharing agreement.
(b) Continuing Authority Program. For projects implemented under
the Continuing Authority Program or a regional authority that does not
require additional authorization to implement the project, sections
905(c) and 105(a)(3) of WRDA 1986, as amended, provide that the first
$100,000 of these studies is a Federal expense. Therefore, once a PMP
has been developed and the MSC Commander has approved initiation of the
feasibility study, an In-Kind MOU for planning may be executed.
(4) Any work undertaken by a non-Federal sponsor pursuant to an In-
Kind MOU is at its own risk and responsibility. An In-Kind MOU provides
no assurance that the non-Federal sponsor's work will be determined to
be integral to the Federal project or that any construction undertaken
by the non-Federal sponsor will be included as part of any ultimately
recommended Federal project. Execution of an In-Kind MOU in no way
obligates the Corps to enter
[[Page 52260]]
into any future agreement for the project.
(5) MSC Commanders may approve a District Engineer's execution of
Model In-Kind MOUs for Construction or for Design, provided that the
MOUs do not include any deviations. Any proposed deviations must be
submitted to HQUSACE for approval prior to execution. Models for the
In-kind MOU for construction, including design work, and for design
work only are available at www.Corpsplanning.us.
e. Integral Determinations.
(1) Section 221 provides that credit may be afforded only if the
Secretary determines that the material or service provided as an in-
kind contribution by a non-Federal sponsor is integral to the study or
project.\1\ To be integral to the study or project, the material or
service must be part of the work that the Federal Government would
otherwise have undertaken for the study or for construction of what is
ultimately determined to be the Federal project. See Appendix B for
additional guidance on criteria and procedures for processing integral
determinations.
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\1\ The costs of Coordination Team participation and audits are
not in-kind contributions and are not included in ``shared costs''
for cost sharing purposes. The costs of the non-Federal Sponsor's
performance of investigations for hazardous substances are eligible
for inclusion as a shared costs and for credit as an in-kind
contribution and do not require a separate integral determination.
---------------------------------------------------------------------------
(2) The approval of integral determinations is delegated to the MSC
Commander. The approval authority delegated to the MSC Commander is
subject to the full compliance of each integral determination to law
and policy and may not be further delegated within the MSC or to the
District Commander. A separate integral determination is not required
for planning activities included in the project management plan,
approved by the MSC Commander, as required for the study effort.
f. Determining the Amount of Credit.
(1) The amount of in-kind contributions that may be eligible for
inclusion in shared costs for cost sharing purposes under the
applicable cost sharing agreement will be subject to an audit by the
Government to determine the reasonableness, allocability, and
allowability of such amount.
(2) The creditable amount is the lesser of the costs incurred by
the non-Federal sponsor to obtain such materials or services; the
market value of such materials or services as of the date that the non-
Federal sponsor provides such materials or services for use in the
study or project; or the Government's estimate of the cost for such
work if it had been accomplished by the Government. This amount is not
subject to interest charges or to adjustment to reflect changes in
price levels between the time the in-kind contributions were completed
and the time the amount is credited.
(3) Any in-kind contributions performed or paid for by the non-
Federal sponsor using funds provided by another Federal agency (as well
as any non-Federal matching share or contribution that was required by
such Federal agency for such program or grant) are not eligible for
credit unless the Federal agency providing the Federal portion of such
funds verifies in writing that the funds are authorized to be used to
carry out the study or project.
(4) After execution of the applicable FCSA, DA, or PPA, the non-
Federal sponsor will submit to the Government (not less frequently than
every 6 months) credit request(s) for eligible in-kind contributions
under that agreement. The credit requests will contain the following:
(a) Written certification by the non-Federal sponsor of the payments
made to contractors, suppliers, or employees for in-kind contributions;
(b) copies of all relevant invoices and evidence of such payments; (c)
written identification of costs that have been paid with funds or
grants provided by a Federal agency as well as any non-Federal matching
share or contribution that was required by such Federal agency for such
program or grant; and (d) a written request for credit of a specific
amount not in excess of such specified payments. Failure to provide
sufficient documentation supporting the credit request will result in a
denial of credit in accordance with the terms of the applicable cost
sharing agreement.
(5) In-kind contributions are subject to a review (for feasibility
level and design activities) or on-site inspection (construction), as
applicable, and certification by the Government that the work was
accomplished in a satisfactory manner and in accordance with applicable
Federal laws, regulations, and policies. The Government will not
include in the costs to be shared under the applicable cost sharing
agreement or afford credit for any work the Government determines was
not accomplished in a satisfactory manner or in accordance with
applicable Federal laws, regulations, and policies.
(6) In general, the amount of credit for in-kind contributions that
can be afforded under a FCSA or a PPA is limited to the amount of the
non-Federal sponsor's cost share under that agreement. As the costs of
design under a Design Agreement (DA) are included in total project
costs under a PPA, credit for in-kind contributions under a DA is
carried over to the PPA, and the maximum of amount of credit for in-
kind contributions under a PPA is limited to the non-Federal sponsor's
required cost share under the PPA. Credit for in-kind contributions may
not be afforded toward the required 5 percent cash payment for
structural flood damage reduction projects or the additional 10 percent
cash payment for navigation projects.
(7) Credit for in-kind contributions for planning is limited to
credit that can be afforded under a specific FCSA. In other words,
excess credit may not be carried over to design or construction of the
project. Credit for planning work by the non-Federal sponsor is limited
to its 50 percent of planning costs and will be done in accordance with
the PMP, under the terms and conditions in the FCSA.
(8) Credit for in-kind contributions provided by a non-Federal
sponsor for the construction of a project, or separable element
thereof, that are in excess of the non-Federal cost share for an
authorized separable element of a project may be applied toward the
non-federal cost share for a different authorized separable element of
the same project. Additional Federal appropriations will be required to
offset the application of any excess credit to another separable
element.
(9) If the value of eligible in-kind contributions exceeds the
amount of credit that can be afforded pursuant to the provisions of a
PPA (i.e., exceeds the required non-Federal cost share for all features
covered by that PPA), only the amount of credit afforded should be
included in total project costs. Recalculation of total project costs
will be required to exclude from total project costs the value of in-
kind contributions that exceed the amount of credit that can be
afforded. In addition, the amount excluded will not be considered part
of total costs for the purposes of Section 902 of WRDA 1986
calculations.
(10) No reimbursements are authorized for in-kind contributions
under Section 221 except as provided in paragraph 4 g., below.
g. Lands, Easements, Relocations, Rights-of-Way, and Areas for
Disposal of Dredged Material (LERRDs). Section 221 does not alter any
other requirement for the non-Federal sponsor to provide LERRDs for a
project. Any LERRDs associated with in-kind contributions determined to
be integral to the project will be credited to the project as LERRDs.
For a navigation project, LERRs are creditable only toward the
requirement for the non-Federal sponsor
[[Page 52261]]
to pay an additional 10 percent of the cost of the general navigation
features.
(1) Previously, credit for in-kind contributions was afforded only
toward the non-Federal sponsor's required cash contribution after
consideration of the value of LERRDs provided by the non-Federal
sponsor. WRRDA 2014 changes how credit for in-kind contributions is
calculated. For projects other than navigation projects, to the extent
that credit for LERRDs combined with credit for the value of in-kind
contributions exceed the non-Federal share of the cost of a project,
WRRDA 2014 provides that the Secretary, subject to the availability of
funds, shall enter into a separate reimbursement agreement to reimburse
the non-Federal sponsor for the difference between creditable LERRDs
and in-kind contributions and the non-Federal cost share. Therefore, at
the final accounting for the project, to the extent funds for the
project remain available, the Secretary shall execute an agreement with
the non-Federal sponsor for reimbursement of the difference.
(2) If funds remaining on a project are insufficient to provide
full reimbursement under paragraph f.(1), the non-Federal sponsor may
request reimbursement. The Secretary shall prioritize such requests,
and enter into reimbursements agreements, in the order the requests
were received, as funds become available for reimbursements.
5. Design. Design by the non-Federal sponsor must be performed in
accordance with the requirements in ER 1110-2-1150, reviewed in
accordance with ER 1110-1-12, and subject to the applicable peer review
guidance. In accordance with section 105(c) of WRDA 1986, the costs of
design shall be shared in the same percentages as the purposes of such
project.
a. If the value of eligible in-kind contributions is less than the
non-Federal sponsor's share of design costs, the non-Federal sponsor
must contribute sufficient funds to equal its share of total design
costs.
b. If the value of eligible in-kind contributions is greater than
the non-Federal sponsor's share of total design costs, then no cash
payment from the non-Federal sponsor is required. The value of all of
the non-Federal sponsor's eligible in-kind contributions (including
those in excess of its share of total design costs) will be included in
total project costs in the PPA. The maximum amount of credit that may
be afforded pursuant to the PPA is limited to the non-Federal sponsor's
cost share under that agreement.
6. Construction.
a. To be eligible for credit, in-kind contributions prior to
execution of the PPA must have been provided or performed after
execution of an In-Kind MOU. Credit for in-kind contributions will not
be afforded toward the non-Federal sponsor's requirement to provide in
cash 5 percent of the costs for structural flood damage reduction
projects (either specifically authorized or implemented pursuant to
Continuing Authority Program Sections 14, 205, or 208 projects); the
non-Federal sponsor's requirement to pay for betterments or any other
work performed by the Government on behalf of the non-Federal sponsor;
the non-Federal sponsor's requirement to provide lands, easements,
rights-of-way, relocations, or improvements to enable the disposal of
dredged or excavated material required for the project or separable
element of the project; or the non-Federal sponsor's additional payment
of 10 percent of the cost of general navigation features for a
navigation project.
b. The non-Federal sponsor may not initiate construction following
execution of a PPA until the designs, detailed plans and
specifications, and arrangements for the prosecution of such work have
been approved by the Government. In addition, any proposed changes to
approved designs and plans and specifications must be approved by the
Government in advance of such construction. Upon completion of
construction, the non-Federal sponsor will furnish to the Government a
copy of all final as-built drawings.
c. For CAP authorities and regional authorities that are
implemented with a single agreement covering design and implementation,
if a non-Federal sponsor proposes to provide or perform all or a
portion of the design for a project as in-kind contributions, a PPA
addressing both design and construction is required.
FOR THE COMMANDER:
Colonel, Corps of Engineers
Chief of Staff
Enclosures: 2 Appendices
Appendix A--Section 221(a)(4) of the Flood Control Act of 1970, as
amended (42 U.S.C. 1962d-5b(a)(4) Section 221(a)(4) of the Flood
Control Act of 1970, as amended, and Section 1018 of WRRDA 2014
Appendix B--Criteria for In-Kind Contribution Integral Determinations
APPENDIX A
Section 221(a)(4) of the Flood Control Act of 1970, as amended (42
U.S.C. 1962d-5b(a)(4))
SEC. 221. WRITTEN AGREEMENT REQUIREMENT FOR WATER RESOURCES PROJECTS.
COOPERATION OF NON-FEDERAL INTEREST.
(4) Credit for in-kind contributions.
(A) In general. A partnership agreement described in paragraph (1)
may provide with respect to a project that the Secretary shall credit
toward the non-Federal share of the cost of the project, including a
project implemented without specific authorization in law or a project
under an environmental infrastructure assistance program, the value of
in-kind contributions made by the non-Federal interest, including--
(i) the costs of planning (including data collection), design,
management, mitigation, construction, and construction services that
are provided by the non-Federal interest for implementation of the
project;
(ii) the value of materials or services provided before execution
of the partnership agreement, including efforts on constructed elements
incorporated into the project; and
(iii) the value of materials and services provided after execution
of the partnership agreement.
(B) Condition. The Secretary may credit an in-kind contribution
under subparagraph (A) only if the Secretary determines that the
material or service provided as an in-kind contribution is integral to
the project.
(C) Work performed before partnership agreement.
(i) Construction.
(I) In general. In any case in which the non-Federal interest is to
receive credit under subparagraph (A) for the cost of construction
carried out by the non-Federal interest before execution of a
partnership agreement and that construction has not been carried out as
of November 8, 2007, the Secretary and the non-Federal interest shall
enter into an agreement under which the non-Federal interest shall
carry out such work and shall do so prior to the non-Federal interest
initiating construction or issuing a written notice to proceed for the
construction.
(II) Eligibility. Construction that is carried out after the
execution of an agreement to carry out work described in subclause (I)
and any design activities that are required for that construction, even
if the design activity is carried out prior to the execution of the
agreement to carry out work, shall be eligible for credit.
(ii) Planning.
(I) In general. In any case in which the non-Federal interest is to
receive credit
[[Page 52262]]
under subparagraph (A) for the cost of planning carried out by the non-
Federal interest before execution of a feasibility cost-sharing
agreement, the Secretary and the non-Federal interest shall enter into
an agreement under which the non-Federal interest shall carry out such
work and shall do so prior to the non-Federal interest initiating that
planning.
(II) Eligibility. Planning that is carried out by the non-Federal
interest after the execution of an agreement to carry out work
described in subclause (I) shall be eligible for credit.
(D) Limitations. Credit authorized under this paragraph for a
project--
(i) shall not exceed the non-Federal share of the cost of the
project;
(ii) shall not alter any other requirement that a non-Federal
interest provide lands, easements, relocations, rights-of-way, or areas
for disposal of dredged material for the project;
(iii) shall not alter any requirement that a non-Federal interest
pay a portion of the costs of construction of the project under
sections 101(a)(2) and 103(a)(1)(A) of the Water Resources Development
Act of 1986 (33 U.S.C. 2211(a)(2); 33 U.S.C. 2213(a)(1)(A)) of the
Water Resources Development Act of 1986 (33 U.S.C. 2211; 33 U.S.C.
2213); and
(iv) shall not exceed the actual and reasonable costs of the
materials, services, or other things provided by the non-Federal
interest, as determined by the Secretary.
(E) Analysis of costs and benefits. In the evaluation of the costs
and benefits of a project, the Secretary shall not consider
construction carried out by a non-Federal interest under this
subsection as part of the future without project condition.
(F) Transfer of credit between separable elements of a project.
Credit for in-kind contributions provided by a non-Federal interest
that are in excess of the non-Federal cost share for an authorized
separable element of a project may be applied toward the non-Federal
cost share for a different authorized separable element of the same
project.
(G) Application of credit.
(i) In general. To the extent that credit for in-kind
contributions, as limited by subparagraph (D), and credit for required
land, easements, rights-of-way, dredged material disposal areas, and
relocations provided by the non-Federal interest exceed the non-Federal
share of the cost of construction of a project other than a navigation
project, the Secretary, subject to the availability of funds, shall
enter into a reimbursement agreement with the non-Federal interest,
which shall be in addition to a partnership agreement under
subparagraph (A), to reimburse the difference to the non-Federal
interest.
(ii) Priority. If appropriated funds are insufficient to cover the
full cost of all requested reimbursement agreements under clause (i),
the Secretary shall enter into reimbursement agreements in the order in
which requests for such agreements are received.''; and
(H) Applicability.
(i) In general. This paragraph shall apply to water resources
projects authorized after November 16, 1986, including projects
initiated after November 16, 1986, without specific authorization in
law, and to water resources projects authorized prior to the date of
enactment of the Water Resources Development Act of 1986 (Public Law
99-662) [enacted June 10, 2014], if correction of design deficiencies
is necessary.
(ii) Authorization as addition to other authorizations. The
authority of the Secretary to provide credit for in-kind contributions
pursuant to this paragraph shall be in addition to any other
authorization to provide credit for in-kind contributions and shall not
be construed as a limitation on such other authorization. The Secretary
shall apply the provisions of this paragraph, in lieu of provisions
under other crediting authority, only if so requested by the non-
Federal interest.
Section 1018 of the Water Resources Reform and Development Act of 2014
Sec. 1018. CREDIT FOR IN-KIND CONTRIBUTIONS.
(a) In General.--Section 221(a)(4) of the Flood Control Act of 1970
(42 U.S.C. 1962d-5b(a)(4)) is amended--
(1) in subparagraph (A), in the matter preceding clause (i), by
inserting ``or a project under an environmental infrastructure
assistance program'' after ``law'';
(2) in subparagraph (C) by striking ``In any case'' and all that
follows through the period at the end and inserting the following:
``(i) CONSTRUCTION.--
``(I) In General.--In any case in which the non-Federal interest is
to receive credit under subparagraph (A) for the cost of construction
carried out by the non-Federal interest before execution of a
partnership agreement and that construction has not been carried out as
of November 8, 2007, the Secretary and the non-Federal interest shall
enter into an agreement under which the non-Federal interest shall
carry out such work and shall do so prior to the non-Federal interest
initiating construction or issuing a written notice to proceed for the
construction.
``(II) Eligibility.--Construction that is carried out after the
execution of an agreement to carry out work described in subclause (I)
and any design activities that are required for that construction, even
if the design activity is carried out prior to the execution of the
agreement to carry out work, shall be eligible for credit.
``(ii) PLANNING.--
``(I) In General.--In any case in which the non-Federal interest is
to receive credit under subparagraph (A) for the cost of planning
carried out by the non-Federal interest before execution of a
feasibility cost-sharing agreement, the Secretary and the non-Federal
interest shall enter into an agreement under which the non-Federal
interest shall carry out such work and shall do so prior to the non-
Federal interest initiating that planning.
``(II) Eligibility.--Planning that is carried out by the non-
Federal interest after the execution of an agreement to carry out work
described in subclause (I) shall be eligible for credit.'';
(3) in subparagraph (D)(iii) by striking ``sections 101 and 103''
and inserting ``sections 101(a)(2) and 103(a)(1)(A) of the Water
Resources Development Act of 1986 (33 U.S.C. 2211(a)(2); 33 U.S.C.
2213(a)(1)(A))'';
(4) by redesignating subparagraph (E) as subparagraph (H);
(5) by inserting after subparagraph (D) the following:
``(E) Analysis of Costs and Benefits.--In the evaluation of the
costs and benefits of a project, the Secretary shall not consider
construction carried out by a non-Federal interest under this
subsection as part of the future without project condition.
``(F) Transfer of Credit Between Separable Elements of a Project.--
Credit for in-kind contributions provided by a non-Federal interest
that are in excess of the non-Federal cost share for an authorized
separable element of a project may be applied toward the non-Federal
cost share for a different authorized separable element of the same
project.
``(G) APPLICATION OF CREDIT.--
``(i) In General.--To the extent that credit for in-kind
contributions, as limited by subparagraph (D), and credit for required
land, easements, rights-of-way, dredged material disposal areas, and
relocations provided by the non-Federal interest exceed the non-Federal
share of the cost of construction of a project other than a navigation
project, the Secretary, subject to the availability of funds, shall
enter into a reimbursement agreement with the non-Federal interest,
which shall be in addition to a partnership agreement
[[Page 52263]]
under subparagraph (A), to reimburse the difference to the non-Federal
interest.
``(ii) Priority.--If appropriated funds are insufficient to cover
the full cost of all requested reimbursement agreements under clause
(i), the Secretary shall enter into reimbursement agreements in the
order in which requests for such agreements are received.''; and
(6) in subparagraph (H) (as redesignated by paragraph (4))--
(A) in clause (i) by inserting ``, and to water resources projects
authorized prior to the date of enactment of the Water Resources
Development Act of 1986 (Public Law 99-662), if correction of design
deficiencies is necessary'' before the period at the end; and
(B) by striking clause (ii) and inserting the following:
``(ii) Authorization As Addition to Other Authorizations.--The
authority of the Secretary to provide credit for in-kind contributions
pursuant to this paragraph shall be in addition to any other
authorization to provide credit for in-kind contributions and shall not
be construed as a limitation on such other authorization. The Secretary
shall apply the provisions of this paragraph, in lieu of provisions
under other crediting authority, only if so requested by the non-
Federal interest.''.
(b) Applicability.--Section 2003(e) of the Water Resources
Development Act of 2007 (42 U.S.C. 1962d-5b note) is amended--
(1) by inserting ``, or construction of design deficiency
corrections on the project,'' after ``construction on the project'';
and
(2) by inserting ``, or under which construction of the project has
not been completed and the work to be performed by the non-Federal
interests has not been carried out and is creditable only toward any
remaining non-Federal cost share,'' after ``has not been initiated''.
(c) Effective Date.--The amendments made by subsections (a) and (b)
take effect on November 8, 2007.
(d) Guidelines.--
(1) In General.-- Not later than 1 year after the date of enactment
of this Act, the Secretary shall update any guidance or regulations for
carrying out section 221(a)(4) of the Flood Control Act of 1970 (42
U.S.C. 1962d-5b(a)(4)) (as amended by subsection (a)) that are in
existence on the date of enactment of this Act or issue new guidelines,
as determined to be appropriate by the Secretary.
(2) Inclusions.-- Any guidance, regulations, or guidelines updated
or issued under paragraph (1) shall include, at a minimum--
(A) the milestone for executing an in-kind memorandum of
understanding for construction by a non-Federal interest;
(B) criteria and procedures for evaluating a request to execute an
in-kind memorandum of understanding for construction by a non-Federal
interest that is earlier than the milestone under subparagraph (A) for
that execution; and
(C) criteria and procedures for determining whether work carried
out by a non-Federal interest is integral to a project.
(3) Public and Stakeholder Participation.-- Before issuing any new
or revised guidance, regulations, or guidelines or any subsequent
updates to those documents, the Secretary shall--
(A) consult with affected non-Federal interests;
(B) publish the proposed guidelines developed under this subsection
in the Federal Register; and
(C) provide the public with an opportunity to comment on the
proposed guidelines.
(e) Other Credit.--Nothing in section 221(a)(4) of the Flood
Control Act of 1970 (42 U.S.C. 1962d-5b(a)(4)) (as amended by
subsection (a)) affects any eligibility for credit under section 104 of
the Water Resources Development of 1986 (33 U.S.C. 2214) that was
approved by the Secretary prior to the date of enactment of this Act.
APPENDIX B
Criteria and Procedures for In-Kind Contribution Integral
Determinations
C-1. Determining if In-Kind Contributions Are Integral to the
Study/Project. Establishing and allowing credit is a two step process
whereby: 1) eligibility is determined by performing the integral
determination, and 2) actual affording of credit is accomplished by
audit of the non-Federal work by the District Engineer under the terms
of the FCSA, DA, or PPA, as appropriate. The Government must determine
that the in-kind contributions are integral to the study or project for
those contributions to be considered eligible for credit.
a. Approval Level of Integral Determinations. Under the terms of
Paragraph 4.e.. of this regulation, approval of integral determinations
is delegated to the MSC Commander. This authority may not be further
delegated.
b. Timing of Integral Determinations.
(1) The integral determination must be completed immediately prior
to review and approval of a DA or PPA, or amendment as applicable, that
provides for the affording of credit. The integral determination for
planning efforts is accomplished as part of the development of the PMP.
An integral determination is not required prior to execution of an In-
Kind MOU for design or construction.
(2) Include at least 30 days in the project schedule for processing
at the MSC of the Integral Determinations by the MSC Commander. These
times are recommended for scheduling purposes and should be extended if
processing identifies significant issues requiring resolution.
c. Procedures for Processing.
(1) For a feasibility study, planning activities, including data
collection, must be included in the approved Project Management Plan in
order for those contributions to be eligible for credit.
(2) The District will prepare an Integral Determination Report
(IDR) for design and construction work that includes at a minimum the
information contained in the following paragraphs. A suggested format
for an IDR can be found at www.Corpsplanning.us. The IDR shall contain
a description of the activities required to perform the design or
construction, as applicable, of the Federal project or separable
element in sufficient detail to allow a comparison with the description
of the proposed in-kind contributions; a detailed description of the
work items proposed to be provided or performed as in-kind
contributions; a discussion of how each work item proposed to be
provided or performed as an in-kind contribution is integral to the
project; an estimate of the costs of each work item proposed to be
provided or performed as an in-kind contribution; the estimated amount
of credit to be afforded for each work item proposed to be provided or
performed as an in-kind contribution; and a District Commander
recommendation identifying which of the proposed in-kind contributions
should be considered integral to the project. If the in-kind
contributions were provided or performed prior to execution of the
applicable cost sharing agreement, then also include in the IDR the
results of the review or inspection, as applicable, and certification
by the District Commander on whether the work was accomplished in a
satisfactory manner and in accordance with applicable Federal laws,
regulations, and policies; and documentation of satisfactory
environmental compliance for the construction portion of the in-kind
contributions.
(3) The district will submit the IDR to the MSC District Support
Team for action. The MSC District Support Team will perform the MSC
review of the IDR. The MSC review team also will include members from
the MSC Office of Counsel and from the MSC Planning Community of
Practice (CoP), MSC
[[Page 52264]]
Engineering and Construction CoP, MSC Real Estate CoP, and other CoPs,
as needed. In addition, if the proposed in-kind contributions consist
of design or construction of dams, levees, or bridges, the MSC review
team must include the MSC Dam, Levee, or Bridge Safety Officer. After
satisfactory resolution of all comments on the IDR and a determination
that the IDR complies with all applicable law and policy, the MSC
District Support Team shall prepare an Integral Determination memo for
approval and signature by the MSC Commander. If the IDR does not or
cannot be modified to comply with law and policy, then the MSC should
contact the HQUSACE RIT to facilitate the resolution of the concerns.
(4) The Integral Determination approval memo will state whether the
work identified in the IDR, or a portion thereof, has been determined
to be integral to the project. In addition, the memo should state that
determination of the actual value of the in-kind contributions and
affording credit for such amount will be accomplished by the Government
in accordance with the limitations, conditions, and terms of the
applicable cost sharing agreement.
C-2. The following may be accepted as integral:
The proposed in-kind contributions are a part of the Federal
project.
b. The proposed in-kind contributions consist of work that the
Government would have otherwise provided or performed for the project,
except for performance of activities that are inherently Governmental
responsibilities (see paragraph C-3 below). Examples of activities that
are acceptable in-kind contributions: performance of design of all or a
portion of the Federal project, including data collection related to
design work; demolition of buildings on lands required for the project;
performance of design or construction related studies for historic
preservation activities; performance of cost shared monitoring and
adaptive management; and construction of a portion of the project.
c. For proposed in-kind contributions performed prior to execution
of the applicable cost sharing agreement, the in-kind contributions
have been reviewed or inspected, as applicable, and certified by the
Government that the work was accomplished in a satisfactory manner and
in accordance with applicable Federal laws, regulations, and policies.
d. For any proposed in-kind contributions proposed to be performed
after execution of the PPA, the plans and specifications will be
approved by the District Commander prior to initiation of the
construction work.
e. For materials provided for use in construction work managed by
the Government, the materials meet the minimum Government requirements
for materials and any substitute materials have been determined to be a
functional equivalent in accordance with policies governing contractor
substitution of materials.
C-3. The following will not be accepted as integral:
a. The proposed in-kind contributions are not part of the Federal
project.
b. The proposed in-kind contributions consist of performance of
activities that are inherently Governmental responsibilities (e.g.,
management of Government contracts; performance of District Quality
Review, Agency Technical Review, Independent External Peer Review, or
Policy Compliance Review; determining if Value Engineering evaluations
are acceptable; determining the LERRD required for the project or
separable element of the project; determining the value of LERRD for
crediting purposes; or making determinations as to compliance with
applicable environmental laws and regulations).
c. The proposed in-kind contributions are features or obligations
that are a 100 percent non-Federal sponsor responsibility (e.g.,
purposes of land reclamation, local drainage, to protect against land
or bank erosion, and/or the removal of hazardous, toxic, or radioactive
wastes; local service facilities; betterments; acquisition and
performance of LERRD, except for the provision of dredged or excavated
material disposal facilities for commercial navigation projects; and
performance of OMRR&R);
d. The proposed in-kind contributions have or will create a hazard
to human life or property.
e. The proposed in-kind contributions have been determined to be
environmentally unacceptable.
f. For proposed in-kind contributions performed prior to execution
of the applicable cost sharing agreement, after review or inspection,
as applicable, the Government cannot certify the proposed in-kind
contributions were accomplished in a satisfactory manner and in
accordance with applicable Federal laws, regulations, and policies.
g. For proposed in-kind contributions performed prior to execution
of the applicable cost sharing agreement, the non-Federal sponsor has
not performed the necessary operation, maintenance, repair,
rehabilitation, or replacement.
[FR Doc. 2015-21355 Filed 8-27-15; 8:45 am]
BILLING CODE 3720-58-P